By William Fisher
Former senior level intelligence officials are disputing claims by the Bush Administration that the failure of Congress to pass a new foreign surveillance law is jeopardizing America’s national security.
In a letter to Admiral Mike McConnell, the Director of National Intelligence, the officials say “the intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication.” Charging that the government’s assertions to the contrary “have distorted rather than enhanced” public understanding, their letter says, “The sunset of the Protect America Act (PAA) does not put America at greater risk. Despite claims that have been made, surveillance currently occurring under the PAA is authorized for up to a year. New surveillance requests can be filed through current FISA law.”
The letter was signed by two former officials at the National Security Council (NSC), Rand Beers, who was Senior Director for Combating Terrorism, and Richard A. Clarke, who served as head of counterterrorism; Lt. Gen. Don Kerrick, former Deputy National Security Advisor; and Susan Spaulding, former assistant general counsel at the Central Intelligence Agency (CIA).
The controversy has been triggered by disagreements focusing largely on a single provision of the PAA. Two weeks ago, a bipartisan coalition in the Senate overwhelmingly passed an extension of the PAA, which was due to expire unless renewed. The bill provides retroactive immunity from lawsuits to telecom companies that wiretapped U.S. phone and computer lines at the government's request after the Sept. 11, 2001 terrorist attacks, without court permission.
A similar bill passed by the House of Representatives but the House version did not provide such immunity.
Congress left Washington for their President’s Day recess without agreeing on a single bill the president could sign – and Bush said he would veto a three-week extension of the current law. The result was the expiration of the PAA last Saturday.
Before and since that time, President Bush has been lobbying for Congressional action granting retroactive immunity. He has warned that terrorists are planning new attacks that could make the Sept. 11 attacks "pale by comparison" and that failure to pass the Protect America Act could have dire consequences. Democrats say they are trying to balance concerns about civil liberties against the government's spy powers.
Bush and DNI McConnell have claimed that the telecom companies were acting legally and acting patriotically at the request of their government, but noted that the companies are already the targets of class action lawsuits that are causing them to be less cooperative.
Bush has lobbied hard to persuade Congress to pass legislation immunizing the telecom companies. He said, "To put it bluntly, if the enemy is calling into America, we really need to know what they're saying, and we need to know what they're thinking, and we need to know who they're talking to."
He added, "Our government told them that their participation was necessary. And it was, and it still is, and that what we had asked them to do was legal. And now they're getting sued for billions of dollars. And it's not fair."
The Democrats have responded by accusing Bush of resorting to "scare tactics and political games."
The former national security officials who wrote to DNI McConnnell said, “It is wrong to make this one issue an immovable impediment to Congress passing strong legislation to protect the American people.”
They took issue with President Bush’s claim that, as a result of PAA not being extended by Congress, "the Attorney General and the Director of National Intelligence will be stripped of their power to authorize new surveillance against terrorist threats abroad."
They urged the President to abandon his claims that Congress’ action makes the U.S. vulnerable to terrorist attacks. “It is the duty of the Executive Branch to inform this process. America's security cannot be captive to partisan bickering and distortions,” they wrote.
They added, “It remains unclear - in light of the law - how the President believes surveillance capabilities have changed.”
Their letter claimed that “The intelligence community currently has the tools it needs to acquire surveillance of new targets and methods of communication. As in the past, applications for new targets that are not already authorized by the broad orders already in place under the PAA can be filed through the FISA courts, including the ability to seek warrants up to 72 hours retroactively.”
Passed by Congress in 1978, FISA, the Foreign Intelligence Surveillance Act, requires the government to obtain a warrant from a special court established under the law before it could conduct wiretaps or intercept the communications of Americans. The law FISA has been modernized nearly a dozen times since the terrorist attacks of September 11, 2001, to keep abreast new communications technologies.
Many legal experts and civil liberties advocates disagree with President Bush’s claims that Congress’ failure to extend the PAA has increased America’s vulnerability to terrorist attacks.
Typical is Prof. Peter Shane of the University of Ohio law school, who told us, “Bush's position is senseless.”
He said, “First, Congress has been willing to extend the PAA on a short-term basis in its current form. So any lapse in the availability of PAA authority cannot be attributed to Congress. Second, retroactive immunity has nothing to do with the authority of the executive branch going forward. It is simply an effort to make sure that lawsuits are not used to unearth the full scope of possible Bush Administration lawlessness in conducting its so-called terrorist surveillance program.”
His view was echoed by Clayton Northouse, Information Policy Analyst for OMB Watch, a Washington-based open-government research group. Northouse told us, “Since day one, the administration has used the guise of national security to unilaterally increase the power of the Executive. This exposes the administration’s position as a blatant power grab. The letter from senior intelligence officials shows us that the Bush administration isn’t upset because the country is weakened by the House’s decision not to reauthorize PAA and grant telecom immunity. Rather, the administration is upset because they may not be able to avoid the oversight and approval of the legislative and judicial branches.”
Wednesday, February 27, 2008
Saudi Arabian "Justice"
By Mona Eltahawy
If justice really was a woman she would not survive long in Saudi Arabia.
Between the Kafkaesque-sounding Committee to Promote Virtue and Prevent Vice and its infamous morality police, and the hardline Wahhabi clerics who serve as judges with wide-ranging powers run amok in the absence of a written penal code, justice couldn’t stand a chance in the royal kingdom.
More barbaric than Kafkaesque is the case of Fawzia Falih, a 51-year-old Saudi citizen of Jordanian origin who is awaiting public execution -- by beheading -- for “witchcraft.” She had already been hospitalized from weeks of beatings by the morality police (the mutaween) prior to her conviction in April 2006.
Judges sentenced her to death based on a confession extracted during those beatings. Falih, who is illiterate, was made to fingerprint that confession although she could not read what it said. One witness against her was a man who claimed he had suddenly become impotent after Falih “bewitched” him.
In a rare moment of lucidity in September 2006, an appeals court threw out her capital conviction after Falih retracted the confession. But a lower court later ruled she should be executed in the “public interest.”
It would be macabre to call Falih lucky, but at least she understood the proceedings against her. I doubt that Rizana Nafeek, a Sri Lankan maid who just turned 20, understood a word of her “trial” which sentenced her to be beheaded.
Nafeek was accused of murdering a baby -- who she says choked as she was feeding it. She was only 17 at the time. She had no access to lawyers during either her interrogation or her trial. Like Falih, Nafeek also retracted a “confession” extracted during police questioning.
A Saudi court is said to be considering Nafeek’s appeal but human rights organizations are concerned because of Saudi Arabia’s alarmingly high rates of execution. At least 26 people, including three women, have been executed since 8 January, and at least 158 people -- including three women -- were executed in Saudi Arabia in 2007.
As those groups point out, Nafeek’s execution would be in contravention of the United Nations Convention on the Rights of the Child which prohibits the execution of offenders for crimes committed when they were under 18 years old.
In its complete mockery of justice, Saudi Arabia ignores these UN conventions -- even the ones it has signed. In 2000, it ratified an international bill of rights for women but stipulated that Islamic law (Sharia) would prevail if there were conflicts with its provisions.
A farce played out in Geneva earlier this year, when a Saudi delegation appeared for the first time before the UN women’s rights panel. Finally an international body grilled the Saudis to explain why, in the 21st century, women have to have a male guardian’s permission to do almost everything in the kingdom, and why women cannot drive.
It was absurd to hear the Saudis insist that women in their country faced no discrimination. But the most ludicrous claim came when the UN committee asked why Saudi men could marry up to four wives. With a straight face, a Saudi delegate -- a man of course -- explained that it was to ensure a man’s sexual appetite was satisfied legally if one wife could not fulfill it.
Not surprisingly, the UN special rapporteur on violence against women, Yakin Erturk, soon went to Saudi Arabia on a 10-day fact-finding mission. She criticized the mutaween and the cleric-judges, mentioning two more cases of women whose treatment at the hands of those entities is nothing short of surreal.
Erturk met with Fatima Azzaz who was forced to separate from her husband Mansour al-Timani in 2006 after her brothers persuaded judges that Timani was from a lesser tribe. Azzaz is being held in a government home for orphans with a young son. She refuses to return to her family home as required by a court order divorcing her from her husband, who has custody of their daughter.
One of the latest atrocities of the mutaween was the arrest in early February of a businesswoman known only as Yara, a 40-year-old mother of three, for sitting in a Starbucks coffee shop in Riyadh with a male colleague. She told the English-language daily Arab News she was taken to a prison, strip-searched and forced to sign a confession of being caught alone with an unrelated man. Yara said the morality police released her several hours later after her husband intervened. The man with whom Yara had coffee, an unidentified Syrian financial analyst, had also been arrested and released the following day.
As these cases show, a grilling by a UN watchdog and a fact-finding mission to explore the miserable state of women’s rights in Saudi Arabia were long overdue. But they are meaningless when Saudi Arabia daily abuses the very rights it has promised to uphold. It must choose -- either its Wahhabi 'justice' or international conventions.
By forcing it to choose, the civilized world supports Saudis who refuse to be intimidated by the morality police and the Wahhabi judges. Last year, several Saudis sued the mutaween for their abuses But my favorite story is of two young women out shopping last year who were chided by the mutaween apparently for wearing makeup. One of the young women pulled out a can of pepper spray and she emptied it into the face of the morality police as her friend filmed the incident with her mobile phone while calling the mutaween "terrorists."
You can't say Saudi women aren't fighting back.
Mona Eltahawy is an award-winning New York-based journalist and commentator, and an international lecturer on Arab and Muslim issues.
If justice really was a woman she would not survive long in Saudi Arabia.
Between the Kafkaesque-sounding Committee to Promote Virtue and Prevent Vice and its infamous morality police, and the hardline Wahhabi clerics who serve as judges with wide-ranging powers run amok in the absence of a written penal code, justice couldn’t stand a chance in the royal kingdom.
More barbaric than Kafkaesque is the case of Fawzia Falih, a 51-year-old Saudi citizen of Jordanian origin who is awaiting public execution -- by beheading -- for “witchcraft.” She had already been hospitalized from weeks of beatings by the morality police (the mutaween) prior to her conviction in April 2006.
Judges sentenced her to death based on a confession extracted during those beatings. Falih, who is illiterate, was made to fingerprint that confession although she could not read what it said. One witness against her was a man who claimed he had suddenly become impotent after Falih “bewitched” him.
In a rare moment of lucidity in September 2006, an appeals court threw out her capital conviction after Falih retracted the confession. But a lower court later ruled she should be executed in the “public interest.”
It would be macabre to call Falih lucky, but at least she understood the proceedings against her. I doubt that Rizana Nafeek, a Sri Lankan maid who just turned 20, understood a word of her “trial” which sentenced her to be beheaded.
Nafeek was accused of murdering a baby -- who she says choked as she was feeding it. She was only 17 at the time. She had no access to lawyers during either her interrogation or her trial. Like Falih, Nafeek also retracted a “confession” extracted during police questioning.
A Saudi court is said to be considering Nafeek’s appeal but human rights organizations are concerned because of Saudi Arabia’s alarmingly high rates of execution. At least 26 people, including three women, have been executed since 8 January, and at least 158 people -- including three women -- were executed in Saudi Arabia in 2007.
As those groups point out, Nafeek’s execution would be in contravention of the United Nations Convention on the Rights of the Child which prohibits the execution of offenders for crimes committed when they were under 18 years old.
In its complete mockery of justice, Saudi Arabia ignores these UN conventions -- even the ones it has signed. In 2000, it ratified an international bill of rights for women but stipulated that Islamic law (Sharia) would prevail if there were conflicts with its provisions.
A farce played out in Geneva earlier this year, when a Saudi delegation appeared for the first time before the UN women’s rights panel. Finally an international body grilled the Saudis to explain why, in the 21st century, women have to have a male guardian’s permission to do almost everything in the kingdom, and why women cannot drive.
It was absurd to hear the Saudis insist that women in their country faced no discrimination. But the most ludicrous claim came when the UN committee asked why Saudi men could marry up to four wives. With a straight face, a Saudi delegate -- a man of course -- explained that it was to ensure a man’s sexual appetite was satisfied legally if one wife could not fulfill it.
Not surprisingly, the UN special rapporteur on violence against women, Yakin Erturk, soon went to Saudi Arabia on a 10-day fact-finding mission. She criticized the mutaween and the cleric-judges, mentioning two more cases of women whose treatment at the hands of those entities is nothing short of surreal.
Erturk met with Fatima Azzaz who was forced to separate from her husband Mansour al-Timani in 2006 after her brothers persuaded judges that Timani was from a lesser tribe. Azzaz is being held in a government home for orphans with a young son. She refuses to return to her family home as required by a court order divorcing her from her husband, who has custody of their daughter.
One of the latest atrocities of the mutaween was the arrest in early February of a businesswoman known only as Yara, a 40-year-old mother of three, for sitting in a Starbucks coffee shop in Riyadh with a male colleague. She told the English-language daily Arab News she was taken to a prison, strip-searched and forced to sign a confession of being caught alone with an unrelated man. Yara said the morality police released her several hours later after her husband intervened. The man with whom Yara had coffee, an unidentified Syrian financial analyst, had also been arrested and released the following day.
As these cases show, a grilling by a UN watchdog and a fact-finding mission to explore the miserable state of women’s rights in Saudi Arabia were long overdue. But they are meaningless when Saudi Arabia daily abuses the very rights it has promised to uphold. It must choose -- either its Wahhabi 'justice' or international conventions.
By forcing it to choose, the civilized world supports Saudis who refuse to be intimidated by the morality police and the Wahhabi judges. Last year, several Saudis sued the mutaween for their abuses But my favorite story is of two young women out shopping last year who were chided by the mutaween apparently for wearing makeup. One of the young women pulled out a can of pepper spray and she emptied it into the face of the morality police as her friend filmed the incident with her mobile phone while calling the mutaween "terrorists."
You can't say Saudi women aren't fighting back.
Mona Eltahawy is an award-winning New York-based journalist and commentator, and an international lecturer on Arab and Muslim issues.
Monday, February 25, 2008
DISCLOSURE BY DRIP, DRIP, DRIP?
By William Fisher
Is it possible that the American people – and the world – are finally about to learn how George W. Bush decided that waterboarding and other “enhanced interrogation techniques” were “legal”?
Well, we probably shouldn’t get carried away by the notion of some epiphany that turned American history’s most secretive administration into some kind of paragon of transparency.
It’s probably more likely that government officials are finally being forced to respond to the seven-year drip-drip-drip of the Chinese water torture practiced by legal scholars and human rights advocates.
As Richard Nixon learned the hard way in 1974, stonewalling goes just so far.
Still, it’s worth pondering the remarkable events of the past few weeks.
Two weeks ago, CIA director Gen. Michael V. Hayden publicly admitted for the first time that the agency used waterboarding in 2002 and 2003 in the interrogation of three Al Qaeda suspects. The technique, which has been used since the Spanish Inquisition and has been found illegal in the past by American courts, involves pouring water into the nose and mouth to create a feeling of drowning.
Then, just last week, the U.S. and British governments revealed that two American "extraordinary rendition" flights carrying terrorism suspects refueled on U.K. territory on the island of Diego Garcia in the Indian Ocean in 2002. Both governments had repeatedly denied that the CIA had ever used British airspace or territory for the secret flights.
Foreign Minister David Miliband said he was "very sorry indeed" to have to correct previous denials by former Prime Minister Tony Blair and other top British officials. Prime Minister Gordon Brown expressed "disappointment" that the United States notified the British government of the flights just last week and called it a "very serious issue."
CIA Director Hayden issued a statement saying that information supplied to Britain "in good faith" had "turned out to be wrong."
Human rights advocates have long suspected that the Indian Ocean atoll was being used as a base for detaining or transporting suspected terrorists to countries whose security services are known to practice torture.
Now we learn that the Justice Department’s internal ethics office is investigating the department’s legal approval for waterboarding of al-Qaeda suspects by the CIA.
That disclosure came from H. Marshall Jarrett, the head of the department’s Office of Professional Responsibility. It was the first official acknowledgment that the Justice Department was conducting an internal review of the so-called “torture memos” the department prepared since 2002, authorizing waterboarding and other harsh interrogation methods.
This is no small deal. Jarrett’s report could become the first public accounting for legal advice that endorsed methods that human rights groups and constitutional authorities unreservedly define as torture.
Jarrett’s office has the power to refer matters for criminal prosecution or to reprimand or pursue disbarment of current or former Justice Department lawyers. The lawyers who gave the torture-is-OK advice are the precise targets of Jarrett’s review.
The Jarrett’s bombshell came as prosecutors and FBI agents continued their criminal investigation into the CIA’s 2005 destruction of videotapes of some of its interrogations. It also came just a week after President Bush threatened to veto a Congress-passed ban on such interrogations.
Jarett’s disclosure came in response to a letter from two Democratic senators, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island.
The Senators wrote, “Despite the virtually unanimous consensus of legal scholars and the overwhelming weight of legal precedent that waterboarding is illegal, certain Justice Department officials, operating behind a veil of secrecy, concluded that the use of waterboarding is lawful. We believe it is appropriate for you to investigate the conduct of these Justice Department officials.”
Jarrett responded that he was looking into the basis for the legal advice contained in an August 2002 memo approving waterboarding. That memo -- drafted by Justice Department lawyer John Yoo and signed by Jay S. Bybee, then head of OLC -- concluded that interrogation methods were not torture unless they produced pain equivalent to that produced by organ failure or death. It was withdrawn in 2004.
Jarrett went still further. He said the investigation was also examining other legal memoranda prepared by OLC since 2002. Presumably, those would the opinions written in 2005 by Steven G. Bradbury, who is still the acting head of OLC. That memo reportedly gave legal approval for waterboarding and other tough methods. Congress has been trying for many months to see that memo.
News of Jarrett’s investigation can only be seem as something of a vindication for him. In 2006, when he tried to look into the Justice Department’s role in approving the National Security Agency’s domestic surveillance program, President Bush denied security clearances for Jarrett’s investigators, thus effectively shutting down the investigation.
But immediately after the Senate confirmed Michael Mukasey as attorney general last November, Bush relented and Jarrett’s staff began their review. That probe is ongoing.
Meanwhile, the future of one of the authors of some of the “torture memos” now being investigated remains iffy. He is Steven Bradbury, who has been nominated by President Bush to be chief of the Office of Legal Counsel (OLC). One of the DOJ’s most influential offices, OLC is responsible for drafting the legal opinions of the Attorney General and for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.
Senators Whitehouse and Durbin – and a number of other lawmakers - have called on Mr. Bush to withdraw the Bradbury nomination.
Senator Whitehouse, a former United States attorney, said that the so-called “torture memos”, as well as classified opinions he had reviewed, failed to meet the Justice Department’s standards for scholarship.
He said that in approving waterboarding, the opinions failed to recognize U.S. prosecution of cases against Japanese officers for waterboarding American prisoners during World War II, and the 1983 opinion of a federal appeals court upholding the conviction of a Texas sheriff for using “water torture” on jail inmates.
Bradbury’s recent congressional testimony could not have provided much comfort to his critics. Appearing before a House committee, Bradbury maintained that the Bush administration allowed CIA interrogators to use tactics that were "quite distressing, uncomfortable, even frightening," but did not cause enough severe and lasting pain to meet the definition of torture.
In surprisingly direct testimony, Bradbury described in chilling detail how waterboarding was used to compel disclosures by prisoners suspected of being member of al-Qaeda.
One of those subjected to this tactic, he said, was Khalid Sheik Mohammed, the alleged masterminded of the Sept. 11, 2001, attacks. He is one of six detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, who is scheduled to be tried by Military Commission. That raises the question of whether evidence obtained through torture will be admitted as evidence in his trial.
But Bradbury denied that the CIA’s waterboarding techniques were similar to the "water torture" used during the Spanish Inquisition and by the security services of dictatorial governments during the 20th century. He said that no water entered the lungs of the three “high value” prisoners who were subjected to the practice in 2002 and 2003.
Bradbury joined his boss, Attorney General Michael B. Mukasey, in declining to say whether waterboarding is torture, or whether it is illegal under laws passed in 2005 and 2006 to regulate abusive treatment of detainees.
He did acknowledge that the Military Commissions Act and other newer laws "would make it much more difficult to conclude that the practice was lawful today," but added that this was not the case in 2002, when the CIA's interrogation program began.
These developments would not be nearly as remarkable absent the steel curtain of secrecy behind which the Bush Administration has hidden for the past seven years. Perhaps we’re about to get our first peeks behind that curtain – albeit reluctantly and glacially.
In the aftermath of Nixon’s resignation, students of politics posited the notion that the cover-up is always worse than the crime. The modus operandi of Bush Administration has managed to debunk that old saw.
In the world of George W. Bush, the crime and the cover-up are equally disgraceful.
Is it possible that the American people – and the world – are finally about to learn how George W. Bush decided that waterboarding and other “enhanced interrogation techniques” were “legal”?
Well, we probably shouldn’t get carried away by the notion of some epiphany that turned American history’s most secretive administration into some kind of paragon of transparency.
It’s probably more likely that government officials are finally being forced to respond to the seven-year drip-drip-drip of the Chinese water torture practiced by legal scholars and human rights advocates.
As Richard Nixon learned the hard way in 1974, stonewalling goes just so far.
Still, it’s worth pondering the remarkable events of the past few weeks.
Two weeks ago, CIA director Gen. Michael V. Hayden publicly admitted for the first time that the agency used waterboarding in 2002 and 2003 in the interrogation of three Al Qaeda suspects. The technique, which has been used since the Spanish Inquisition and has been found illegal in the past by American courts, involves pouring water into the nose and mouth to create a feeling of drowning.
Then, just last week, the U.S. and British governments revealed that two American "extraordinary rendition" flights carrying terrorism suspects refueled on U.K. territory on the island of Diego Garcia in the Indian Ocean in 2002. Both governments had repeatedly denied that the CIA had ever used British airspace or territory for the secret flights.
Foreign Minister David Miliband said he was "very sorry indeed" to have to correct previous denials by former Prime Minister Tony Blair and other top British officials. Prime Minister Gordon Brown expressed "disappointment" that the United States notified the British government of the flights just last week and called it a "very serious issue."
CIA Director Hayden issued a statement saying that information supplied to Britain "in good faith" had "turned out to be wrong."
Human rights advocates have long suspected that the Indian Ocean atoll was being used as a base for detaining or transporting suspected terrorists to countries whose security services are known to practice torture.
Now we learn that the Justice Department’s internal ethics office is investigating the department’s legal approval for waterboarding of al-Qaeda suspects by the CIA.
That disclosure came from H. Marshall Jarrett, the head of the department’s Office of Professional Responsibility. It was the first official acknowledgment that the Justice Department was conducting an internal review of the so-called “torture memos” the department prepared since 2002, authorizing waterboarding and other harsh interrogation methods.
This is no small deal. Jarrett’s report could become the first public accounting for legal advice that endorsed methods that human rights groups and constitutional authorities unreservedly define as torture.
Jarrett’s office has the power to refer matters for criminal prosecution or to reprimand or pursue disbarment of current or former Justice Department lawyers. The lawyers who gave the torture-is-OK advice are the precise targets of Jarrett’s review.
The Jarrett’s bombshell came as prosecutors and FBI agents continued their criminal investigation into the CIA’s 2005 destruction of videotapes of some of its interrogations. It also came just a week after President Bush threatened to veto a Congress-passed ban on such interrogations.
Jarett’s disclosure came in response to a letter from two Democratic senators, Richard J. Durbin of Illinois and Sheldon Whitehouse of Rhode Island.
The Senators wrote, “Despite the virtually unanimous consensus of legal scholars and the overwhelming weight of legal precedent that waterboarding is illegal, certain Justice Department officials, operating behind a veil of secrecy, concluded that the use of waterboarding is lawful. We believe it is appropriate for you to investigate the conduct of these Justice Department officials.”
Jarrett responded that he was looking into the basis for the legal advice contained in an August 2002 memo approving waterboarding. That memo -- drafted by Justice Department lawyer John Yoo and signed by Jay S. Bybee, then head of OLC -- concluded that interrogation methods were not torture unless they produced pain equivalent to that produced by organ failure or death. It was withdrawn in 2004.
Jarrett went still further. He said the investigation was also examining other legal memoranda prepared by OLC since 2002. Presumably, those would the opinions written in 2005 by Steven G. Bradbury, who is still the acting head of OLC. That memo reportedly gave legal approval for waterboarding and other tough methods. Congress has been trying for many months to see that memo.
News of Jarrett’s investigation can only be seem as something of a vindication for him. In 2006, when he tried to look into the Justice Department’s role in approving the National Security Agency’s domestic surveillance program, President Bush denied security clearances for Jarrett’s investigators, thus effectively shutting down the investigation.
But immediately after the Senate confirmed Michael Mukasey as attorney general last November, Bush relented and Jarrett’s staff began their review. That probe is ongoing.
Meanwhile, the future of one of the authors of some of the “torture memos” now being investigated remains iffy. He is Steven Bradbury, who has been nominated by President Bush to be chief of the Office of Legal Counsel (OLC). One of the DOJ’s most influential offices, OLC is responsible for drafting the legal opinions of the Attorney General and for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.
Senators Whitehouse and Durbin – and a number of other lawmakers - have called on Mr. Bush to withdraw the Bradbury nomination.
Senator Whitehouse, a former United States attorney, said that the so-called “torture memos”, as well as classified opinions he had reviewed, failed to meet the Justice Department’s standards for scholarship.
He said that in approving waterboarding, the opinions failed to recognize U.S. prosecution of cases against Japanese officers for waterboarding American prisoners during World War II, and the 1983 opinion of a federal appeals court upholding the conviction of a Texas sheriff for using “water torture” on jail inmates.
Bradbury’s recent congressional testimony could not have provided much comfort to his critics. Appearing before a House committee, Bradbury maintained that the Bush administration allowed CIA interrogators to use tactics that were "quite distressing, uncomfortable, even frightening," but did not cause enough severe and lasting pain to meet the definition of torture.
In surprisingly direct testimony, Bradbury described in chilling detail how waterboarding was used to compel disclosures by prisoners suspected of being member of al-Qaeda.
One of those subjected to this tactic, he said, was Khalid Sheik Mohammed, the alleged masterminded of the Sept. 11, 2001, attacks. He is one of six detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, who is scheduled to be tried by Military Commission. That raises the question of whether evidence obtained through torture will be admitted as evidence in his trial.
But Bradbury denied that the CIA’s waterboarding techniques were similar to the "water torture" used during the Spanish Inquisition and by the security services of dictatorial governments during the 20th century. He said that no water entered the lungs of the three “high value” prisoners who were subjected to the practice in 2002 and 2003.
Bradbury joined his boss, Attorney General Michael B. Mukasey, in declining to say whether waterboarding is torture, or whether it is illegal under laws passed in 2005 and 2006 to regulate abusive treatment of detainees.
He did acknowledge that the Military Commissions Act and other newer laws "would make it much more difficult to conclude that the practice was lawful today," but added that this was not the case in 2002, when the CIA's interrogation program began.
These developments would not be nearly as remarkable absent the steel curtain of secrecy behind which the Bush Administration has hidden for the past seven years. Perhaps we’re about to get our first peeks behind that curtain – albeit reluctantly and glacially.
In the aftermath of Nixon’s resignation, students of politics posited the notion that the cover-up is always worse than the crime. The modus operandi of Bush Administration has managed to debunk that old saw.
In the world of George W. Bush, the crime and the cover-up are equally disgraceful.
Sunday, February 24, 2008
US: MORE “WAR ON TERROR” WOES
By William Fisher
As the U.S. Central Intelligence Agency acknowledged it had erroneously denied using British territory to transport victims of “extraordinary rendition,” a federal court bowed to pressure from the Bush administration to dismiss a case against a Boeing subsidiary being sued for providing the aircraft that carried the suspected terrorists.
The U.S. and British governments revealed last week that two American. extraordinary rendition" flights carrying terrorism suspects refueled on U.K. territory on the island of Diego Garcia in the Indian Ocean in 2002. Both governments had repeatedly denied that the U.S. Central Intelligence Agency (CIA) had ever used British airspace or territory for the secret flights.
Foreign Minister David Miliband said he was "very sorry indeed" to have to correct previous denials by former Prime Minister Tony Blair and other top British officials. Prime Minister Gordon Brown expressed "disappointment" that the United States notified the British government of the flights just last week and called it a "very serious issue."
In a telephone call, U.S. Secretary of State Condoleezza Rice apologized to Brown. CIA Director Michael V. Hayden issued a statement saying that information supplied to Britain "in good faith" had "turned out to be wrong."
Human rights advocates have long suspected that the Indian Ocean atoll was being used as a base for detaining or transporting suspected terrorists.
The British government has consistently denied any involvement in the CIA's rendition program, in which terror suspects are flown for interrogation to countries whose security services are known to practice torture.
Meanwhile, a Federal judge last week dismissed a lawsuit brought by the American Civil Liberties Union (ACLU) against a subsidiary of the Boeing Company, Jeppesen Dataplan, Inc. for the company’s alleged role in the CIA’s “extraordinary rendition” program.
The suit charged that Jeppesen knowingly aided the program by providing flight planning and logistical support services for aircraft and crews used by the CIA to transport victims to U.S.-run prisons or foreign intelligence agencies overseas, where they were subjected to harsh interrogation techniques and torture.
The government successfully intervened to block the suit, arguing that litigation of the case would reveal “state secrets” and harm national security. The Bush Administration has increasingly used the so-called State Secrets Privilege to block lawsuits.
The judge rejected the ACLU’s claim that “abundant evidence” was already in the public domain, including a sworn affidavit by a former Jeppesen employee and flight records confirming Jeppesen’s involvement. It was unclear whether the ACLU would appeal the verdict.
In a related development, the U.S. Senate Judiciary Committee convened a hearing on the bipartisan State Secrets Protection Act, which would require courts to examine classified evidence instead of dismissing cases on the word of the perpetrators themselves, and would prohibit any dismissal prior to discovery. The measure has been introduced by Senators Edward Kennedy, Democrat of Massachusetts and Pennsylvania Republican Arlen Specter, the committee’s ranking member.
These developments came on the heels of congressional testimony by a controversial Department of Justice (DOJ) lawyer, Steven G. Bradbury, during which he admitted that Bush administration allowed CIA interrogators to use tactics that were "quite distressing, uncomfortable, even frightening," but did not cause enough severe and lasting pain to qualify as torture.
President George W. Bush has nominated Bradbury to head the DOJ’s Office of Legal Counsel (OLC), of which he is now acting chief. He is the author of several DOJ memoranda purporting to establish a legal basis for the use of waterboarding and other harsh interrogation techniques. Waterboarding is generally defined as “simulated drowning.”
OLC, one of the DOJ’s most influential offices, drafts legal opinions of the Attorney General and also provides its own written opinions. The Office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.
In surprisingly direct testimony before a House of Representatives committee, Bradbury described in grim detail how the administration regulated the CIA's use of aggressive tactics and offered new details of how waterboarding -- simulated drowning -- was used to compel disclosures by prisoners suspected of being al-Qaeda members.
He denied that the CIA’s waterboarding techniques were similar to the "water torture" used during the Spanish Inquisition and by the security services of dictatorial governments during the 20th century. He said it was subject to "strict time limits, safeguards, restrictions" and that no water entered the lungs of the three “high value” prisoners who were subjected to the practice in 2002 and 2003.
Bradbury joined his boss, Attorney General Michael B. Mukasey, in declining to say whether waterboarding is torture, or whether it is illegal under laws passed in 2005 and 2006 to regulate abusive treatment of detainees.
He said the Military Commissions Act and other newer laws "would make it much more difficult to conclude that the practice was lawful today," but added that this was not the case in 2002, when the CIA's interrogation program began. At that time, DOJ lawyers concluded, in secret legal opinions, that waterboarding and other tactics were legal.
Experts on human rights abuses and torture say the CIA waterboarding is similar to the technique employed by the Khmer Rouge in Cambodia, the French in Algeria, and the security services in Myanmar (Burma).
CIA Director Michael V. Hayden recently confirmed the use of waterboarding for the first time but said the practice is no longer allowed under CIA rules. One of those subjected to the tactic, he said, was Khalid Sheik Mohammed, the alleged masterminded of the Sept. 11, 2001, attacks. He is one of six detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, who is scheduled to be tried by Military Commission.
Guantanamo Bay continued to be subjected to ongoing scrutiny by legal experts and civil liberties advocates. A new study announced by Prof. Mark Denbeaux of the Seton Hall University School of Law revealed that more than 24,000 interrogations have been conducted at Guantánamo since 2002 – and claimed that every one was videotaped.
Conducted by Seton Hall faculty and students, the study is based largely on U.S. Government documents obtained under the Freedom of Information Act. The study concluded it was not possible to determine which videotapes still exist, and which have been destroyed.
In a 2005 case, a federal judge issued an order to the Government mandating that "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at (Guantánamo Bay) be preserved. But in November 2005, CIA officials destroyed at least two videotapes documenting the interrogations of two Guantánamo detainees.
The destruction of the two tapes has caused a firestorm of protest in congress and among human rights advocates.
Gabor Rona, International Legal Director of advocacy group Human Rights First, summed up the situation, telling IPS, “The administration refuses to name torture torture, destroys the evidence of torture, and obstructs the efforts of torture victims to seek justice in the courts. It does so to protect those who authorized and administered torture from having to face criminal accountability for war crimes and civil liability to the victims. It also does this to maintain its ability to offer illegal and unreliable evidence that is based on torture in the Guantanamo military commissions.”
He added, “The authorization, implementation and cover-up of torture violates U.S. and international law, undermines U.S. standing to promote democracy and human rights, and serves as a green light to despotic regimes around the world to trample human rights in the name of counterterrorism."
As the U.S. Central Intelligence Agency acknowledged it had erroneously denied using British territory to transport victims of “extraordinary rendition,” a federal court bowed to pressure from the Bush administration to dismiss a case against a Boeing subsidiary being sued for providing the aircraft that carried the suspected terrorists.
The U.S. and British governments revealed last week that two American. extraordinary rendition" flights carrying terrorism suspects refueled on U.K. territory on the island of Diego Garcia in the Indian Ocean in 2002. Both governments had repeatedly denied that the U.S. Central Intelligence Agency (CIA) had ever used British airspace or territory for the secret flights.
Foreign Minister David Miliband said he was "very sorry indeed" to have to correct previous denials by former Prime Minister Tony Blair and other top British officials. Prime Minister Gordon Brown expressed "disappointment" that the United States notified the British government of the flights just last week and called it a "very serious issue."
In a telephone call, U.S. Secretary of State Condoleezza Rice apologized to Brown. CIA Director Michael V. Hayden issued a statement saying that information supplied to Britain "in good faith" had "turned out to be wrong."
Human rights advocates have long suspected that the Indian Ocean atoll was being used as a base for detaining or transporting suspected terrorists.
The British government has consistently denied any involvement in the CIA's rendition program, in which terror suspects are flown for interrogation to countries whose security services are known to practice torture.
Meanwhile, a Federal judge last week dismissed a lawsuit brought by the American Civil Liberties Union (ACLU) against a subsidiary of the Boeing Company, Jeppesen Dataplan, Inc. for the company’s alleged role in the CIA’s “extraordinary rendition” program.
The suit charged that Jeppesen knowingly aided the program by providing flight planning and logistical support services for aircraft and crews used by the CIA to transport victims to U.S.-run prisons or foreign intelligence agencies overseas, where they were subjected to harsh interrogation techniques and torture.
The government successfully intervened to block the suit, arguing that litigation of the case would reveal “state secrets” and harm national security. The Bush Administration has increasingly used the so-called State Secrets Privilege to block lawsuits.
The judge rejected the ACLU’s claim that “abundant evidence” was already in the public domain, including a sworn affidavit by a former Jeppesen employee and flight records confirming Jeppesen’s involvement. It was unclear whether the ACLU would appeal the verdict.
In a related development, the U.S. Senate Judiciary Committee convened a hearing on the bipartisan State Secrets Protection Act, which would require courts to examine classified evidence instead of dismissing cases on the word of the perpetrators themselves, and would prohibit any dismissal prior to discovery. The measure has been introduced by Senators Edward Kennedy, Democrat of Massachusetts and Pennsylvania Republican Arlen Specter, the committee’s ranking member.
These developments came on the heels of congressional testimony by a controversial Department of Justice (DOJ) lawyer, Steven G. Bradbury, during which he admitted that Bush administration allowed CIA interrogators to use tactics that were "quite distressing, uncomfortable, even frightening," but did not cause enough severe and lasting pain to qualify as torture.
President George W. Bush has nominated Bradbury to head the DOJ’s Office of Legal Counsel (OLC), of which he is now acting chief. He is the author of several DOJ memoranda purporting to establish a legal basis for the use of waterboarding and other harsh interrogation techniques. Waterboarding is generally defined as “simulated drowning.”
OLC, one of the DOJ’s most influential offices, drafts legal opinions of the Attorney General and also provides its own written opinions. The Office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.
In surprisingly direct testimony before a House of Representatives committee, Bradbury described in grim detail how the administration regulated the CIA's use of aggressive tactics and offered new details of how waterboarding -- simulated drowning -- was used to compel disclosures by prisoners suspected of being al-Qaeda members.
He denied that the CIA’s waterboarding techniques were similar to the "water torture" used during the Spanish Inquisition and by the security services of dictatorial governments during the 20th century. He said it was subject to "strict time limits, safeguards, restrictions" and that no water entered the lungs of the three “high value” prisoners who were subjected to the practice in 2002 and 2003.
Bradbury joined his boss, Attorney General Michael B. Mukasey, in declining to say whether waterboarding is torture, or whether it is illegal under laws passed in 2005 and 2006 to regulate abusive treatment of detainees.
He said the Military Commissions Act and other newer laws "would make it much more difficult to conclude that the practice was lawful today," but added that this was not the case in 2002, when the CIA's interrogation program began. At that time, DOJ lawyers concluded, in secret legal opinions, that waterboarding and other tactics were legal.
Experts on human rights abuses and torture say the CIA waterboarding is similar to the technique employed by the Khmer Rouge in Cambodia, the French in Algeria, and the security services in Myanmar (Burma).
CIA Director Michael V. Hayden recently confirmed the use of waterboarding for the first time but said the practice is no longer allowed under CIA rules. One of those subjected to the tactic, he said, was Khalid Sheik Mohammed, the alleged masterminded of the Sept. 11, 2001, attacks. He is one of six detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, who is scheduled to be tried by Military Commission.
Guantanamo Bay continued to be subjected to ongoing scrutiny by legal experts and civil liberties advocates. A new study announced by Prof. Mark Denbeaux of the Seton Hall University School of Law revealed that more than 24,000 interrogations have been conducted at Guantánamo since 2002 – and claimed that every one was videotaped.
Conducted by Seton Hall faculty and students, the study is based largely on U.S. Government documents obtained under the Freedom of Information Act. The study concluded it was not possible to determine which videotapes still exist, and which have been destroyed.
In a 2005 case, a federal judge issued an order to the Government mandating that "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at (Guantánamo Bay) be preserved. But in November 2005, CIA officials destroyed at least two videotapes documenting the interrogations of two Guantánamo detainees.
The destruction of the two tapes has caused a firestorm of protest in congress and among human rights advocates.
Gabor Rona, International Legal Director of advocacy group Human Rights First, summed up the situation, telling IPS, “The administration refuses to name torture torture, destroys the evidence of torture, and obstructs the efforts of torture victims to seek justice in the courts. It does so to protect those who authorized and administered torture from having to face criminal accountability for war crimes and civil liability to the victims. It also does this to maintain its ability to offer illegal and unreliable evidence that is based on torture in the Guantanamo military commissions.”
He added, “The authorization, implementation and cover-up of torture violates U.S. and international law, undermines U.S. standing to promote democracy and human rights, and serves as a green light to despotic regimes around the world to trample human rights in the name of counterterrorism."
Friday, February 22, 2008
BOEING SUBSIDIARY SCOT FREE, HAYDEN, BRADBURY ON THE HOT SEAT
By William Fisher
As the U.S. Central Intelligence Agency acknowledged it had erroneously denied using British territory to transport victims of “extraordinary rendition,” a federal court bowed to pressure from the Bush administration to dismiss a case against a Boeing subsidiary being sued for providing the aircraft that carried the suspected terrorists.
The U.S. and British governments revealed last week that two American. "extraordinary rendition" flights carrying terrorism suspects refueled on U.K. territory on the island of Diego Garcia in the Indian Ocean in 2002. Both governments had repeatedly denied that the U.S. Central Intelligence Agency (CIA) had ever used British airspace or territory for the secret flights.
Foreign Minister David Miliband said he was "very sorry indeed" to have to correct previous denials by former Prime Minister Tony Blair and other top British officials. Prime Minister Gordon Brown expressed "disappointment" that the United States notified the British government of the flights just last week and called it a "very serious issue."
In a telephone call, U.S. Secretary of State Condoleezza Rice apologized to Brown. CIA Director Michael V. Hayden issued a statement saying that information supplied to Britain "in good faith" had "turned out to be wrong."
Human rights advocates have long suspected that the Indian Ocean atoll was being used as a base for detaining or transporting suspected terrorists.
The British government has consistently denied any involvement in the CIA's rendition program, in which terror suspects are flown for interrogation to countries whose security services are known to practice torture.
Meanwhile, a Federal judge last week dismissed a lawsuit brought by the American Civil Liberties Union (ACLU) against a subsidiary of the Boeing Company, Jeppesen Dataplan, Inc. for the company’s alleged role in the CIA’s “extraordinary rendition” program.
The suit charged that Jeppesen knowingly aided the program by providing flight planning and logistical support services for aircraft and crews used by the CIA to transport victims to U.S.-run prisons or foreign intelligence agencies overseas, where they were subjected to harsh interrogation techniques and torture.
The government successfully intervened to block the suit, arguing that litigation of the case would reveal “state secrets” and harm national security. The Bush Administration has increasingly used the so-called State Secrets Privilege to block lawsuits.
The judge rejected the ACLU’s claim that “abundant evidence” was already in the public domain, including a sworn affidavit by a former Jeppesen employee and flight records confirming Jeppesen’s involvement. It was unclear whether the ACLU would appeal the verdict.
In a related development, the U.S. Senate Judiciary Committee convened a hearing on the bipartisan State Secrets Protection Act, which would require courts to examine classified evidence instead of dismissing cases on the word of the perpetrators themselves, and would prohibit any dismissal prior to discovery. The measure has been introduced by Senators Edward Kennedy, Democrat of Massachusetts and Pennsylvania Republican Arlen Specter, the committee’s ranking member.
These developments came on the heels of congressional testimony by a controversial Department of Justice (DOJ) lawyer, Steven G. Bradbury, during which he admitted that Bush administration allowed CIA interrogators to use tactics that were "quite distressing, uncomfortable, even frightening," but did not cause enough severe and lasting pain to qualify as torture.
President George W. Bush has nominated Bradbury to head the DOJ’s Office of Legal Counsel (OLC), of which he is now acting chief. He is the author of several DOJ memoranda purporting to establish a legal basis for the use of waterboarding and other harsh interrogation techniques. Waterboarding is generally defined as “simulated drowning.”
OLC, one of the DOJ’s most influential offices, drafts legal opinions of the Attorney General and also provides its own written opinions. The Office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.
In surprisingly direct testimony before a House of Representatives committee, Bradbury described in grim detail how the administration regulated the CIA's use of aggressive tactics and offered new details of how waterboarding -- simulated drowning -- was used to compel disclosures by prisoners suspected of being al-Qaeda members.
He denied that the CIA’s waterboarding techniques were similar to the "water torture" used during the Spanish Inquisition and by the security services of dictatorial governments during the 20th century. He said it was subject to "strict time limits, safeguards, restrictions" and that no water entered the lungs of the three “high value” prisoners who were subjected to the practice in 2002 and 2003.
Bradbury joined his boss, Attorney General Michael B. Mukasey, in declining to say whether waterboarding is torture, or whether it is illegal under laws passed in 2005 and 2006 to regulate abusive treatment of detainees.
He said the Military Commissions Act and other newer laws "would make it much more difficult to conclude that the practice was lawful today," but added that this was not the case in 2002, when the CIA's interrogation program began. At that time, DOJ lawyers concluded, in secret legal opinions, that waterboarding and other tactics were legal.
Experts on human rights abuses and torture say the CIA waterboarding is similar to the technique employed by the Khmer Rouge in Cambodia, the French in Algeria, and the security services in Myanmar (Burma).
CIA Director Michael V. Hayden recently confirmed the use of waterboarding for the first time but said the practice is no longer allowed under CIA rules. One of those subjected to the tactic, he said, was Khalid Sheik Mohammed, the alleged masterminded of the Sept. 11, 2001, attacks. He is one of six detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, who is scheduled to be tried by Military Commission.
Guantanamo Bay continued to be subjected to ongoing scrutiny by legal experts and civil liberties advocates. A new study announced by Prof. Mark Denbeaux of the Seton Hall University School of Law revealed that more than 24,000 interrogations have been conducted at Guantánamo since 2002 – and claimed that every one was videotaped.
Conducted by Seton Hall faculty and students, the study is based largely on U.S. Government documents obtained under the Freedom of Information Act. The study concluded it was not possible to determine which videotapes still exist, and which have been destroyed.
In a 2005 case, a federal judge issued an order to the Government mandating that "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at (Guantánamo Bay) be preserved. But in November 2005, CIA officials destroyed at least two videotapes documenting the interrogations of two Guantánamo detainees.
The destruction of the two tapes has caused a firestorm of protest in congress and among human rights advocates.
Gabor Rona, International Legal Director of advocacy group Human Rights First, summed up the situation, telling IPS, “The administration refuses to name torture torture, destroys the evidence of torture, and obstructs the efforts of torture victims to seek justice in the courts. It does so to protect those who authorized and administered torture from having to face criminal accountability for war crimes and civil liability to the victims. It also does this to maintain its ability to offer illegal and unreliable evidence that is based on torture in the Guantanamo military commissions.”
He added, “The authorization, implementation and cover-up of torture violates U.S. and international law, undermines U.S. standing to promote democracy and human rights, and serves as a green light to despotic regimes around the world to trample human rights in the name of counterterrorism."
As the U.S. Central Intelligence Agency acknowledged it had erroneously denied using British territory to transport victims of “extraordinary rendition,” a federal court bowed to pressure from the Bush administration to dismiss a case against a Boeing subsidiary being sued for providing the aircraft that carried the suspected terrorists.
The U.S. and British governments revealed last week that two American. "extraordinary rendition" flights carrying terrorism suspects refueled on U.K. territory on the island of Diego Garcia in the Indian Ocean in 2002. Both governments had repeatedly denied that the U.S. Central Intelligence Agency (CIA) had ever used British airspace or territory for the secret flights.
Foreign Minister David Miliband said he was "very sorry indeed" to have to correct previous denials by former Prime Minister Tony Blair and other top British officials. Prime Minister Gordon Brown expressed "disappointment" that the United States notified the British government of the flights just last week and called it a "very serious issue."
In a telephone call, U.S. Secretary of State Condoleezza Rice apologized to Brown. CIA Director Michael V. Hayden issued a statement saying that information supplied to Britain "in good faith" had "turned out to be wrong."
Human rights advocates have long suspected that the Indian Ocean atoll was being used as a base for detaining or transporting suspected terrorists.
The British government has consistently denied any involvement in the CIA's rendition program, in which terror suspects are flown for interrogation to countries whose security services are known to practice torture.
Meanwhile, a Federal judge last week dismissed a lawsuit brought by the American Civil Liberties Union (ACLU) against a subsidiary of the Boeing Company, Jeppesen Dataplan, Inc. for the company’s alleged role in the CIA’s “extraordinary rendition” program.
The suit charged that Jeppesen knowingly aided the program by providing flight planning and logistical support services for aircraft and crews used by the CIA to transport victims to U.S.-run prisons or foreign intelligence agencies overseas, where they were subjected to harsh interrogation techniques and torture.
The government successfully intervened to block the suit, arguing that litigation of the case would reveal “state secrets” and harm national security. The Bush Administration has increasingly used the so-called State Secrets Privilege to block lawsuits.
The judge rejected the ACLU’s claim that “abundant evidence” was already in the public domain, including a sworn affidavit by a former Jeppesen employee and flight records confirming Jeppesen’s involvement. It was unclear whether the ACLU would appeal the verdict.
In a related development, the U.S. Senate Judiciary Committee convened a hearing on the bipartisan State Secrets Protection Act, which would require courts to examine classified evidence instead of dismissing cases on the word of the perpetrators themselves, and would prohibit any dismissal prior to discovery. The measure has been introduced by Senators Edward Kennedy, Democrat of Massachusetts and Pennsylvania Republican Arlen Specter, the committee’s ranking member.
These developments came on the heels of congressional testimony by a controversial Department of Justice (DOJ) lawyer, Steven G. Bradbury, during which he admitted that Bush administration allowed CIA interrogators to use tactics that were "quite distressing, uncomfortable, even frightening," but did not cause enough severe and lasting pain to qualify as torture.
President George W. Bush has nominated Bradbury to head the DOJ’s Office of Legal Counsel (OLC), of which he is now acting chief. He is the author of several DOJ memoranda purporting to establish a legal basis for the use of waterboarding and other harsh interrogation techniques. Waterboarding is generally defined as “simulated drowning.”
OLC, one of the DOJ’s most influential offices, drafts legal opinions of the Attorney General and also provides its own written opinions. The Office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.
In surprisingly direct testimony before a House of Representatives committee, Bradbury described in grim detail how the administration regulated the CIA's use of aggressive tactics and offered new details of how waterboarding -- simulated drowning -- was used to compel disclosures by prisoners suspected of being al-Qaeda members.
He denied that the CIA’s waterboarding techniques were similar to the "water torture" used during the Spanish Inquisition and by the security services of dictatorial governments during the 20th century. He said it was subject to "strict time limits, safeguards, restrictions" and that no water entered the lungs of the three “high value” prisoners who were subjected to the practice in 2002 and 2003.
Bradbury joined his boss, Attorney General Michael B. Mukasey, in declining to say whether waterboarding is torture, or whether it is illegal under laws passed in 2005 and 2006 to regulate abusive treatment of detainees.
He said the Military Commissions Act and other newer laws "would make it much more difficult to conclude that the practice was lawful today," but added that this was not the case in 2002, when the CIA's interrogation program began. At that time, DOJ lawyers concluded, in secret legal opinions, that waterboarding and other tactics were legal.
Experts on human rights abuses and torture say the CIA waterboarding is similar to the technique employed by the Khmer Rouge in Cambodia, the French in Algeria, and the security services in Myanmar (Burma).
CIA Director Michael V. Hayden recently confirmed the use of waterboarding for the first time but said the practice is no longer allowed under CIA rules. One of those subjected to the tactic, he said, was Khalid Sheik Mohammed, the alleged masterminded of the Sept. 11, 2001, attacks. He is one of six detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, who is scheduled to be tried by Military Commission.
Guantanamo Bay continued to be subjected to ongoing scrutiny by legal experts and civil liberties advocates. A new study announced by Prof. Mark Denbeaux of the Seton Hall University School of Law revealed that more than 24,000 interrogations have been conducted at Guantánamo since 2002 – and claimed that every one was videotaped.
Conducted by Seton Hall faculty and students, the study is based largely on U.S. Government documents obtained under the Freedom of Information Act. The study concluded it was not possible to determine which videotapes still exist, and which have been destroyed.
In a 2005 case, a federal judge issued an order to the Government mandating that "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at (Guantánamo Bay) be preserved. But in November 2005, CIA officials destroyed at least two videotapes documenting the interrogations of two Guantánamo detainees.
The destruction of the two tapes has caused a firestorm of protest in congress and among human rights advocates.
Gabor Rona, International Legal Director of advocacy group Human Rights First, summed up the situation, telling IPS, “The administration refuses to name torture torture, destroys the evidence of torture, and obstructs the efforts of torture victims to seek justice in the courts. It does so to protect those who authorized and administered torture from having to face criminal accountability for war crimes and civil liability to the victims. It also does this to maintain its ability to offer illegal and unreliable evidence that is based on torture in the Guantanamo military commissions.”
He added, “The authorization, implementation and cover-up of torture violates U.S. and international law, undermines U.S. standing to promote democracy and human rights, and serves as a green light to despotic regimes around the world to trample human rights in the name of counterterrorism."
Monday, February 18, 2008
THE REAL STRAIGHT-TALK EXPRESS
By William Fisher
I usually raise my glass in gleeful celebration every time some senior member of the Bush Administration announces he’s leaving office “to spend more time with his family” or some other lame pro forma Washington excuse.
That usually means he/she is leaving in disgrace. Or yearning for the big bucks on the lecture circuit. Or on his/her way to the slammer.
But today is different.
Today, I lament the departure of one of the most courageous, effective and thoughtful public servants ever to serve the United States.
His name is David M. Walker. Most Americans have never heard of him. His title is Comtroller General of the United States. That’s Comptroller with an M. His job is to head the Government Accountability Office, or GAO. The GAO is the investigative agency of Congress.
Most Americans have never heard of the GAO either.
Pity. Because, in a government of incompetents, spinners, cronies, political hacks, wiretappers and torturers, David Walker’s GAO has been one of the very few bright lights in town.
And he’s a Republican! Imagine me celebrating a departing Republican!
But that’s where the similarity with Dubya ends.
Because David Walker is the kind of Republican who has become an endangered – almost extinct -- species in Bush’s Washington. He’s what the conductor of the Straight-Talk Express pretends to be and what he would like us to believe he is.
A word about the GAO. It used to be called the General Accounting Office. But its name was changed a few years ago to more accurately reflect what it actually does. Which is to hold the government accountable. Its head is by statute appointed by the president for a 15-year term. Which is how Walker got selected by Bill Clinton in 1998. My bet is that Dubya has deep regrets about that decision.
Because holding the government accountable is indeed what GAO has done under David Walker’s leadership. It has investigated government incompetence, waste, fraud and abuse in every Cabinet department and dozens of agencies. The range of subjects it has looked into last year alone is breathtaking. Contractor malfeasance in Iraq and Afghanistan. The failures of FEMA and other agencies to respond adequately to Katrina. The consistently criminal waste by the Pentagon. The failure of the Defense Department and the Veterans Administration to meet minimal standards for providing health care and benefits for our returning warriors. Runaway spending and the absence of even minimal systems to account for that spending. And much, much more.
On behalf of Congress, David Walker and his staff have spoken truth to power.
But, to its great credit, it has resisted being mesmerized by its power to expose. Every GAO report – and there and hundreds of them – tells those with the patience to read not only what’s wrong with a department or a program. It tells those who run these things what they need to do to fix their problems.
This has made the GAO the most agreed-with and most soon-forgotten agency in government. Departments and agencies the GAO has investigated rarely object to its corrective recommendations. In fact, most of them agree. But they rarely take action to implement those recommendations – or they make all the right noises and slow-walk GAO’s suggestions into oblivion.
As for GAO’s masters, the Congress, its members are perfectly delighted to use GAO’s findings to convene “oversight” hearings, adopt non-binding “sense of the House” resolutions, write press releases, and generally hone their grandstanding skills.
And, every once in a while, some actual piece of legislation may arise from a problem illuminated by the GAO. But that’s pretty rare. Politicians have short memories. And they are comforted by the knowledge that the public has less.
That enables them to play their Kabuki Theater roles with Oscar-winning skill – and then do absolutely nothing.
Which, barely having to read between the lines, is why David Walker is leaving his post.
“As comptroller general of the United States, there are real limitations on what I can do and say in connection with key public policy issues, especially issues that directly relate to GAO’s client — the Congress,” he said.
Walker has lived his professional life with clients – before coming to Washington, he headed a major office of a major international accounting firm. But I suspect his private sector clients did a far more conscientious job than our government of following his advice.
So he has chosen to leave his post at the GAO to become the president and CEO of the newly founded Peter G. Peterson Foundation.
“While I love both my job as comptroller general and the GAO,” he said, “I love my country more. And I believe that leading this foundation represents a unique opportunity and will be good for my country. My new position will provide me with the ability and resources to more aggressively address a range of current and emerging challenges facing our country, including advocating specific policy solutions and courses of action.”
In his new incarnation, Walker will oversee the billion-dollar endowment of Pete Peterson – former Commerce Secretary, the founder of the Blackstone group, The Concord Coalition, and legendary advocate for government fiscal responsibility.
“We are at a make-or-break point in American history,” Mr. Peterson said of his new foundation. “The entitlement monster is unfunded. We are dangerously dependent on foreign capital, our health care costs per capita are twice the level of the developed world, he said, and then asked, ” How do you educate a public that has become largely inert?”
It will be up to David Walker to try to find a coherent answer to this question. This is a gargantuan job. There are no short-term fixes, despite what our current presidential wanabees would have us believe.
George Bush and his Executive branch of government have failed abjectly in this mission. Congress has failed. Maybe a private foundation can do better. In his new job, I trust David Walker to continue to speak truth to power, to be as thoughtful, as incisive, and as fearless, as he has been at the GAO.
Even if he’s a Republican!
I usually raise my glass in gleeful celebration every time some senior member of the Bush Administration announces he’s leaving office “to spend more time with his family” or some other lame pro forma Washington excuse.
That usually means he/she is leaving in disgrace. Or yearning for the big bucks on the lecture circuit. Or on his/her way to the slammer.
But today is different.
Today, I lament the departure of one of the most courageous, effective and thoughtful public servants ever to serve the United States.
His name is David M. Walker. Most Americans have never heard of him. His title is Comtroller General of the United States. That’s Comptroller with an M. His job is to head the Government Accountability Office, or GAO. The GAO is the investigative agency of Congress.
Most Americans have never heard of the GAO either.
Pity. Because, in a government of incompetents, spinners, cronies, political hacks, wiretappers and torturers, David Walker’s GAO has been one of the very few bright lights in town.
And he’s a Republican! Imagine me celebrating a departing Republican!
But that’s where the similarity with Dubya ends.
Because David Walker is the kind of Republican who has become an endangered – almost extinct -- species in Bush’s Washington. He’s what the conductor of the Straight-Talk Express pretends to be and what he would like us to believe he is.
A word about the GAO. It used to be called the General Accounting Office. But its name was changed a few years ago to more accurately reflect what it actually does. Which is to hold the government accountable. Its head is by statute appointed by the president for a 15-year term. Which is how Walker got selected by Bill Clinton in 1998. My bet is that Dubya has deep regrets about that decision.
Because holding the government accountable is indeed what GAO has done under David Walker’s leadership. It has investigated government incompetence, waste, fraud and abuse in every Cabinet department and dozens of agencies. The range of subjects it has looked into last year alone is breathtaking. Contractor malfeasance in Iraq and Afghanistan. The failures of FEMA and other agencies to respond adequately to Katrina. The consistently criminal waste by the Pentagon. The failure of the Defense Department and the Veterans Administration to meet minimal standards for providing health care and benefits for our returning warriors. Runaway spending and the absence of even minimal systems to account for that spending. And much, much more.
On behalf of Congress, David Walker and his staff have spoken truth to power.
But, to its great credit, it has resisted being mesmerized by its power to expose. Every GAO report – and there and hundreds of them – tells those with the patience to read not only what’s wrong with a department or a program. It tells those who run these things what they need to do to fix their problems.
This has made the GAO the most agreed-with and most soon-forgotten agency in government. Departments and agencies the GAO has investigated rarely object to its corrective recommendations. In fact, most of them agree. But they rarely take action to implement those recommendations – or they make all the right noises and slow-walk GAO’s suggestions into oblivion.
As for GAO’s masters, the Congress, its members are perfectly delighted to use GAO’s findings to convene “oversight” hearings, adopt non-binding “sense of the House” resolutions, write press releases, and generally hone their grandstanding skills.
And, every once in a while, some actual piece of legislation may arise from a problem illuminated by the GAO. But that’s pretty rare. Politicians have short memories. And they are comforted by the knowledge that the public has less.
That enables them to play their Kabuki Theater roles with Oscar-winning skill – and then do absolutely nothing.
Which, barely having to read between the lines, is why David Walker is leaving his post.
“As comptroller general of the United States, there are real limitations on what I can do and say in connection with key public policy issues, especially issues that directly relate to GAO’s client — the Congress,” he said.
Walker has lived his professional life with clients – before coming to Washington, he headed a major office of a major international accounting firm. But I suspect his private sector clients did a far more conscientious job than our government of following his advice.
So he has chosen to leave his post at the GAO to become the president and CEO of the newly founded Peter G. Peterson Foundation.
“While I love both my job as comptroller general and the GAO,” he said, “I love my country more. And I believe that leading this foundation represents a unique opportunity and will be good for my country. My new position will provide me with the ability and resources to more aggressively address a range of current and emerging challenges facing our country, including advocating specific policy solutions and courses of action.”
In his new incarnation, Walker will oversee the billion-dollar endowment of Pete Peterson – former Commerce Secretary, the founder of the Blackstone group, The Concord Coalition, and legendary advocate for government fiscal responsibility.
“We are at a make-or-break point in American history,” Mr. Peterson said of his new foundation. “The entitlement monster is unfunded. We are dangerously dependent on foreign capital, our health care costs per capita are twice the level of the developed world, he said, and then asked, ” How do you educate a public that has become largely inert?”
It will be up to David Walker to try to find a coherent answer to this question. This is a gargantuan job. There are no short-term fixes, despite what our current presidential wanabees would have us believe.
George Bush and his Executive branch of government have failed abjectly in this mission. Congress has failed. Maybe a private foundation can do better. In his new job, I trust David Walker to continue to speak truth to power, to be as thoughtful, as incisive, and as fearless, as he has been at the GAO.
Even if he’s a Republican!
BACKDOORING THE CONSTITUTION
By William Fisher
First, it was Signing Statements, where the president signs laws passed by Congress and then declares he will interpret them any way he wishes. George W. Bush has issued more of these statements than all his predecessors combined. His trashing of the Detainee Treatment Act is arguably the best known example, but the range of his statements has covered issues from the existential to the trivial.
Simultaneously, he has simply violated previous laws and done whatever he says is “in the interest of national security.” Most widely publicized is his decision to ignore the Foreign Intelligence Surveillance Act of 1978 (FISA) to recruit telephone companies to intercept phone calls and emails to U.S. citizens without court orders. This despite that law’s requirement that the government show probable cause to the FISA court so it can issue a warrant. Makes you wonder whether the telecom industry’s army of lawyers ever passed Constitutional Law 101!
All of the above – and much more -- has been perpetrated upon the people to further Mr. Bush’s ever-expanding definition of presidential powers. Never mind that the Constitution constructs a government of three co-equal branches: executive, legislative and judiciary. The president has treated the legislative branch as if it was his special assistant. And he’s tried to do the same thing with the courts. But, to their credit, our judges – including many appointed by Bush himself -- have dealt this administration some stunning reversals.
The White House mantra is “If the president says it, it’s legal.” He is, after all, The Decider, no?
Now the Bushies have discovered a new tactic: the budget. They are attempting to use a kind of “backdoor signing statement” to thwart the will of Congress.
And the particular issue involved is Congress’ attempt to help lift the veil of secrecy that has shrouded our Government for the past seven years.
In August of last year, Congress passed the Open Government Act. The measure established a new Office of Government Information within the National Archives and Records Administration (NARA), an independent Federal agency charged with preserving and documenting government and historical records and increasing public access to those documents. The office was to be headed by an ombudsman to oversee disputes over the Freedom of Information Act (FOIA), avoid unnecessary litigation, and monitor the way Department of Justice (DOJ) implements that law.
President Bush signed the measure in December 2007. But when he submitted his $3.1 trillion budget proposal to Congress, no funds were included for the new program. Instead, the funding was hidden deep within the budget appendix under the Department of Commerce -- on page 239 of the 1,314-page document – and shifted the new office to the Department of Justice (DOJ).
The Chairman of the Senate Judiciary Committee, Vermont Democrat Sen. Patrick Leahy, one of the original cosponsors of the Open Government Act, said, "Such a move is not only contrary to the express intent of the Congress, but it is also contrary to the very purpose of this legislation — to ensure the timely and fair resolution of Americans’ FOIA requests."
The reason: The DOJ is the department charged with defending agencies accused of inappropriately withholding documents requested under the FOIA. This gives it a bias in favor of federal agencies, making it both judge and jury.
According to Sean Moulton, Director of Federal Information Policy for OMB Watch, a not-for-profit government watchdog group, “The president is definitely using his budget proposal to try and relocate the FOIA Ombudsman office (OGIS) to the DOJ. It is similar to signing statements in that it is the president's attempt to alter implementation of a law as it was laid out by congress.”
Leahy also noted DOJ's "abysmal record on FOIA compliance" over the past seven years as another reason the agency makes a poor choice for the location of OGIS.
The Freedom of Information Act, signed into law by President Lyndon B. Johnson in 1966, allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government.
In 2001, Attorney General John Ashcroft issued a memo stating that the DOJ would defend in court any federal agency that withheld information on justifiable grounds. Previously, the standard was that the presumption was for disclosure. The new law restored the previous presumption.
Critics of the Bush Administration say they are not surprised at the president’s use of the budget to thwart the will of congress. They see the tactic as part of a pattern of restricting access to information. They cite the growth of public requests for information under the Freedom of Information over the last six years. In 2006, the total number of FOIA requests received in 2006 was 21,412,736, substantially larger than in 2005.
And, according to an audit conducted in January 2007 by the National Security Archive (NSA), an independent non-governmental research institute and library located at The George Washington University which collects and publishes declassified documents obtained through FOIA, agency backlogs remain significant. One FOIA request has now been pending for more than 20 years. The statutory response time is 20 business days.
The Bush Administration has refused to release information on a wide range of subjects, including the secret meetings of Vice President Dick Cheney’s energy policy task force. It has ordered federal Websites to remove much of the information they had posted that the Administration believed could be sensitive. It issued a controversial memo limiting access to records under the Presidential Records Act in November 2001, which allowed former Presidents and Vice-Presidents to prevent access to records. And it refused to disclose information on the Patriot Act and the names of those arrested after the attacks of September 11, 2001.
Many of those denied access to information have sued the government. Among the most widely publicized was the suit brought by a group of advocacy organizations including the American Civil Liberties Union (ACLU), the Center for Constitutional Rights (CCR), and others, to force the Department of Defense (DOD) to turn over documents relating to the harsh interrogation methods used against detainees at Guantanamo Bay, Cuba. The suit yielded hundreds of thousands of documents, including reports by agents of the Federal Bureau of Investigation (FBI) confirming such treatment.
While open-government advocates express varying levels of confidence in the proposed new Ombudsman’s importance, they agree on at least one thing: it is important that the law be implemented as written. As expressed by Steven Aftergood, head of the Government Secrecy Project for the Federation of American Scientists, “Any effort by the Administration to deviate from the terms of a statute should be opposed, no matter how trivial it might be, because the law is the law.”
So two questions need to be answered: Is the president listening? And, if not, does Congress have the spine to tell The Decider he’s not?
First, it was Signing Statements, where the president signs laws passed by Congress and then declares he will interpret them any way he wishes. George W. Bush has issued more of these statements than all his predecessors combined. His trashing of the Detainee Treatment Act is arguably the best known example, but the range of his statements has covered issues from the existential to the trivial.
Simultaneously, he has simply violated previous laws and done whatever he says is “in the interest of national security.” Most widely publicized is his decision to ignore the Foreign Intelligence Surveillance Act of 1978 (FISA) to recruit telephone companies to intercept phone calls and emails to U.S. citizens without court orders. This despite that law’s requirement that the government show probable cause to the FISA court so it can issue a warrant. Makes you wonder whether the telecom industry’s army of lawyers ever passed Constitutional Law 101!
All of the above – and much more -- has been perpetrated upon the people to further Mr. Bush’s ever-expanding definition of presidential powers. Never mind that the Constitution constructs a government of three co-equal branches: executive, legislative and judiciary. The president has treated the legislative branch as if it was his special assistant. And he’s tried to do the same thing with the courts. But, to their credit, our judges – including many appointed by Bush himself -- have dealt this administration some stunning reversals.
The White House mantra is “If the president says it, it’s legal.” He is, after all, The Decider, no?
Now the Bushies have discovered a new tactic: the budget. They are attempting to use a kind of “backdoor signing statement” to thwart the will of Congress.
And the particular issue involved is Congress’ attempt to help lift the veil of secrecy that has shrouded our Government for the past seven years.
In August of last year, Congress passed the Open Government Act. The measure established a new Office of Government Information within the National Archives and Records Administration (NARA), an independent Federal agency charged with preserving and documenting government and historical records and increasing public access to those documents. The office was to be headed by an ombudsman to oversee disputes over the Freedom of Information Act (FOIA), avoid unnecessary litigation, and monitor the way Department of Justice (DOJ) implements that law.
President Bush signed the measure in December 2007. But when he submitted his $3.1 trillion budget proposal to Congress, no funds were included for the new program. Instead, the funding was hidden deep within the budget appendix under the Department of Commerce -- on page 239 of the 1,314-page document – and shifted the new office to the Department of Justice (DOJ).
The Chairman of the Senate Judiciary Committee, Vermont Democrat Sen. Patrick Leahy, one of the original cosponsors of the Open Government Act, said, "Such a move is not only contrary to the express intent of the Congress, but it is also contrary to the very purpose of this legislation — to ensure the timely and fair resolution of Americans’ FOIA requests."
The reason: The DOJ is the department charged with defending agencies accused of inappropriately withholding documents requested under the FOIA. This gives it a bias in favor of federal agencies, making it both judge and jury.
According to Sean Moulton, Director of Federal Information Policy for OMB Watch, a not-for-profit government watchdog group, “The president is definitely using his budget proposal to try and relocate the FOIA Ombudsman office (OGIS) to the DOJ. It is similar to signing statements in that it is the president's attempt to alter implementation of a law as it was laid out by congress.”
Leahy also noted DOJ's "abysmal record on FOIA compliance" over the past seven years as another reason the agency makes a poor choice for the location of OGIS.
The Freedom of Information Act, signed into law by President Lyndon B. Johnson in 1966, allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government.
In 2001, Attorney General John Ashcroft issued a memo stating that the DOJ would defend in court any federal agency that withheld information on justifiable grounds. Previously, the standard was that the presumption was for disclosure. The new law restored the previous presumption.
Critics of the Bush Administration say they are not surprised at the president’s use of the budget to thwart the will of congress. They see the tactic as part of a pattern of restricting access to information. They cite the growth of public requests for information under the Freedom of Information over the last six years. In 2006, the total number of FOIA requests received in 2006 was 21,412,736, substantially larger than in 2005.
And, according to an audit conducted in January 2007 by the National Security Archive (NSA), an independent non-governmental research institute and library located at The George Washington University which collects and publishes declassified documents obtained through FOIA, agency backlogs remain significant. One FOIA request has now been pending for more than 20 years. The statutory response time is 20 business days.
The Bush Administration has refused to release information on a wide range of subjects, including the secret meetings of Vice President Dick Cheney’s energy policy task force. It has ordered federal Websites to remove much of the information they had posted that the Administration believed could be sensitive. It issued a controversial memo limiting access to records under the Presidential Records Act in November 2001, which allowed former Presidents and Vice-Presidents to prevent access to records. And it refused to disclose information on the Patriot Act and the names of those arrested after the attacks of September 11, 2001.
Many of those denied access to information have sued the government. Among the most widely publicized was the suit brought by a group of advocacy organizations including the American Civil Liberties Union (ACLU), the Center for Constitutional Rights (CCR), and others, to force the Department of Defense (DOD) to turn over documents relating to the harsh interrogation methods used against detainees at Guantanamo Bay, Cuba. The suit yielded hundreds of thousands of documents, including reports by agents of the Federal Bureau of Investigation (FBI) confirming such treatment.
While open-government advocates express varying levels of confidence in the proposed new Ombudsman’s importance, they agree on at least one thing: it is important that the law be implemented as written. As expressed by Steven Aftergood, head of the Government Secrecy Project for the Federation of American Scientists, “Any effort by the Administration to deviate from the terms of a statute should be opposed, no matter how trivial it might be, because the law is the law.”
So two questions need to be answered: Is the president listening? And, if not, does Congress have the spine to tell The Decider he’s not?
Saturday, February 16, 2008
HEAR NO EVIL, SEE NO EVIL
By William Fisher
President George W. Bush’s critics are charging that he is attempting to use a “backdoor signing statement” to thwart the will of Congress to help lift the veil of secrecy that has shrouded the U.S. Government for the past seven years.
In August of last year, Congress passed the Open Government Act. The measure established a new Office of Government Information within the National Archives and Records Administration (NARA), an independent Federal agency charged with preserving and documenting government and historical records and increasing public access to those documents. The office was to be headed by an ombudsman to oversee disputes over the Freedom of Information Act (FOIA), avoid unnecessary litigation, and monitor the way Department of Justice (DOJ) implements that law.
President Bush signed the measure in December 2007. But when he submitted his $3.1 trillion budget proposal to Congress, no funds were included for the new program. Instead, the funding was hidden deep within the budget appendix under the Department of Commerce -- on page 239 of the 1,314-page document – and shifted the new office to the Department of Justice (DOJ).
The Chairman of the Senate Judiciary Committee, Vermont Democrat Sen. Patrick Leahy, one of the original cosponsors of the Open Government Act, said, "Such a move is not only contrary to the express intent of the Congress, but it is also contrary to the very purpose of this legislation — to ensure the timely and fair resolution of Americans’ FOIA requests."
The reason: The DOJ is the department charged with defending agencies accused of inappropriately withholding documents requested under the FOIA. This gives it a bias in favor of federal agencies, making it both judge and jury.
According to Sean Moulton, Director of Federal Information Policy for OMB Watch, a not-for-profit government watchdog group, “The president is definitely using his budget proposal to try and relocate the FOIA Ombudsman office (OGIS) to the DOJ. It is similar to signing statements in that it is the president's attempt to alter implementation of a law as it was laid out by congress.”
Leahy also noted DOJ's "abysmal record on FOIA compliance" over the past seven years as another reason the agency makes a poor choice for the location of OGIS.
The Freedom of Information Act, signed into law by President Lyndon B. Johnson in 1966, allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government.
In 2001, Attorney General John Ashcroft issued a memo stating that the DOJ would defend in court any federal agency that withheld information on justifiable grounds. Previously, the standard was that the presumption was for disclosure. The new law restored the previous presumption.
Throughout his administration, President Bush has used so-called “signing statements,” rather than the budget, to modify acts of Congress he finds objectionable. Perhaps the best-known of these was issued after he signed the so-called McCain Amendment to the Detainee Treatment Act of 2005. That measure was intended to prohibit inhumane treatment of prisoners, including prisoners at Guantanamo Bay; and required military interrogations to be performed according to the Code of Military Justice. After signing the law, Bush issued a signing statement saying he would interpret the law “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief.”
Such statements have become a hallmark of the Bush Administration. From the inception of the Republic until 2000, presidents produced fewer than 600 signing. Since 2001, President Bush has objected on constitutional grounds to sections of more than 750 laws.
But critics of the Bush Administration say they are not surprised at the president’s use of the budget to thwart the will of congress. They see the tactic as part of a pattern of restricting access to information. They cite the growth of public requests for information under the Freedom of Information over the last six years. In 2006, the total number of FOIA requests received in 2006 was 21,412,736, substantially larger than in 2005.
And, according to an audit conducted in January 2007 by the National Security Archive (NSA), an independent non-governmental research institute and library located at The George Washington University which collects and publishes declassified documents obtained through FOIA, agency backlogs remain significant. One FOIA request has now been pending for more than 20 years. The statutory response time is 20 business days.
The Bush Administration has refused to release information on a wide range of subjects, including the secret meetings of Vice President Dick Cheney’s energy policy task force. It has ordered federal Websites to remove much of the information they had posted that the Administration believed could be sensitive. It issued a controversial memo limiting access to records under the Presidential Records Act in November 2001, which allowed former Presidents and Vice-Presidents to prevent access to records. And it refused to disclose information on the Patriot Act and the names of those arrested after the attacks of September 11, 2001.
Many of those denied access to information have sued the government. Among the most widely publicized was the suit brought by a group of advocacy organizations including the American Civil Liberties Union (ACLU), the Center for Constitutional Rights (CCR), and others, to force the Department of Defense (DOD) to turn over documents relating to the harsh interrogation methods used against detainees at Guantanamo Bay, Cuba. The suit yielded hundreds of thousands of documents, including reports by agents of the Federal Bureau of Investigation (FBI) confirming such treatment.
Open-government advocates express varying levels of confidence in the proposed new Ombudsman’s importance. Steven Aftergood, head of the Government Secrecy Project for the Federation of American Scientists, told us he doesn’t have “high expectations of the ombudsman's office, regardless of where it is located.” He asked, “Is an official from the National Archives really going to intervene on my behalf when the CIA stubbornly refuses to process one of my requests? Would it make a difference if he or she did? I tend to doubt it.”
OMB Watch’s Moulton takes a different view. He told us, “I firmly believe Congress got it right when they assigned the job to the National Archives, which has better objectivity on FOIA disputes and greater experience in managing the disclosure of documents. Justice's traditional position of defending agencies against FOIA lawsuits, means a bias to side with agencies in disputes likely exists.”
“The office's direct clout with agencies will derive from the level of support the Administration provides. This will be tied directly to how high a priority the next administration places on disclosure and transparency,” he added.
But both agree that “it is important that the law be implemented as written. Any effort by the Administration to deviate from the terms of a statute should be opposed, no matter how trivial it might be, because the law is the law.”
And both point out that the president’s budget action “is not a done deal.” Aftergood says, “Congress can appropriate funds for the ombudsman to be expended solely at the Archives, and can prohibit their use by Justice.”
OMB Watch’s Moulton agrees. He told us, “Congress can, and in many ways always does, deviate from the President's proposed budget. The question is whether congress will allocate money to the National Archives for the office even though the President didn't request it.”
President George W. Bush’s critics are charging that he is attempting to use a “backdoor signing statement” to thwart the will of Congress to help lift the veil of secrecy that has shrouded the U.S. Government for the past seven years.
In August of last year, Congress passed the Open Government Act. The measure established a new Office of Government Information within the National Archives and Records Administration (NARA), an independent Federal agency charged with preserving and documenting government and historical records and increasing public access to those documents. The office was to be headed by an ombudsman to oversee disputes over the Freedom of Information Act (FOIA), avoid unnecessary litigation, and monitor the way Department of Justice (DOJ) implements that law.
President Bush signed the measure in December 2007. But when he submitted his $3.1 trillion budget proposal to Congress, no funds were included for the new program. Instead, the funding was hidden deep within the budget appendix under the Department of Commerce -- on page 239 of the 1,314-page document – and shifted the new office to the Department of Justice (DOJ).
The Chairman of the Senate Judiciary Committee, Vermont Democrat Sen. Patrick Leahy, one of the original cosponsors of the Open Government Act, said, "Such a move is not only contrary to the express intent of the Congress, but it is also contrary to the very purpose of this legislation — to ensure the timely and fair resolution of Americans’ FOIA requests."
The reason: The DOJ is the department charged with defending agencies accused of inappropriately withholding documents requested under the FOIA. This gives it a bias in favor of federal agencies, making it both judge and jury.
According to Sean Moulton, Director of Federal Information Policy for OMB Watch, a not-for-profit government watchdog group, “The president is definitely using his budget proposal to try and relocate the FOIA Ombudsman office (OGIS) to the DOJ. It is similar to signing statements in that it is the president's attempt to alter implementation of a law as it was laid out by congress.”
Leahy also noted DOJ's "abysmal record on FOIA compliance" over the past seven years as another reason the agency makes a poor choice for the location of OGIS.
The Freedom of Information Act, signed into law by President Lyndon B. Johnson in 1966, allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government.
In 2001, Attorney General John Ashcroft issued a memo stating that the DOJ would defend in court any federal agency that withheld information on justifiable grounds. Previously, the standard was that the presumption was for disclosure. The new law restored the previous presumption.
Throughout his administration, President Bush has used so-called “signing statements,” rather than the budget, to modify acts of Congress he finds objectionable. Perhaps the best-known of these was issued after he signed the so-called McCain Amendment to the Detainee Treatment Act of 2005. That measure was intended to prohibit inhumane treatment of prisoners, including prisoners at Guantanamo Bay; and required military interrogations to be performed according to the Code of Military Justice. After signing the law, Bush issued a signing statement saying he would interpret the law “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief.”
Such statements have become a hallmark of the Bush Administration. From the inception of the Republic until 2000, presidents produced fewer than 600 signing. Since 2001, President Bush has objected on constitutional grounds to sections of more than 750 laws.
But critics of the Bush Administration say they are not surprised at the president’s use of the budget to thwart the will of congress. They see the tactic as part of a pattern of restricting access to information. They cite the growth of public requests for information under the Freedom of Information over the last six years. In 2006, the total number of FOIA requests received in 2006 was 21,412,736, substantially larger than in 2005.
And, according to an audit conducted in January 2007 by the National Security Archive (NSA), an independent non-governmental research institute and library located at The George Washington University which collects and publishes declassified documents obtained through FOIA, agency backlogs remain significant. One FOIA request has now been pending for more than 20 years. The statutory response time is 20 business days.
The Bush Administration has refused to release information on a wide range of subjects, including the secret meetings of Vice President Dick Cheney’s energy policy task force. It has ordered federal Websites to remove much of the information they had posted that the Administration believed could be sensitive. It issued a controversial memo limiting access to records under the Presidential Records Act in November 2001, which allowed former Presidents and Vice-Presidents to prevent access to records. And it refused to disclose information on the Patriot Act and the names of those arrested after the attacks of September 11, 2001.
Many of those denied access to information have sued the government. Among the most widely publicized was the suit brought by a group of advocacy organizations including the American Civil Liberties Union (ACLU), the Center for Constitutional Rights (CCR), and others, to force the Department of Defense (DOD) to turn over documents relating to the harsh interrogation methods used against detainees at Guantanamo Bay, Cuba. The suit yielded hundreds of thousands of documents, including reports by agents of the Federal Bureau of Investigation (FBI) confirming such treatment.
Open-government advocates express varying levels of confidence in the proposed new Ombudsman’s importance. Steven Aftergood, head of the Government Secrecy Project for the Federation of American Scientists, told us he doesn’t have “high expectations of the ombudsman's office, regardless of where it is located.” He asked, “Is an official from the National Archives really going to intervene on my behalf when the CIA stubbornly refuses to process one of my requests? Would it make a difference if he or she did? I tend to doubt it.”
OMB Watch’s Moulton takes a different view. He told us, “I firmly believe Congress got it right when they assigned the job to the National Archives, which has better objectivity on FOIA disputes and greater experience in managing the disclosure of documents. Justice's traditional position of defending agencies against FOIA lawsuits, means a bias to side with agencies in disputes likely exists.”
“The office's direct clout with agencies will derive from the level of support the Administration provides. This will be tied directly to how high a priority the next administration places on disclosure and transparency,” he added.
But both agree that “it is important that the law be implemented as written. Any effort by the Administration to deviate from the terms of a statute should be opposed, no matter how trivial it might be, because the law is the law.”
And both point out that the president’s budget action “is not a done deal.” Aftergood says, “Congress can appropriate funds for the ombudsman to be expended solely at the Archives, and can prohibit their use by Justice.”
OMB Watch’s Moulton agrees. He told us, “Congress can, and in many ways always does, deviate from the President's proposed budget. The question is whether congress will allocate money to the National Archives for the office even though the President didn't request it.”
Friday, February 15, 2008
GITMO: JUSTICE OR SHOW TRIALS
By William Fisher
As the U.S. moves toward the death-sentence trials of six suspected terrorists at Guantanamo Bay, Cuba, legal scholars and human rights advocates are raising questions not only about the process that led to the prosecutions but also about the Bush Administration’s motives in bringing the charges now and the credibility of the trials themselves.
The charges filed against the six, including alleged Sept. 11 mastermind Khalid Sheik Mohammed, outline a litany of war crimes and include conspiracy, murder, attacking civilians, terrorism and supporting terrorism. All six suspects are being held at Guantanamo Bay, Cuba, and the military plans to try the six together. If convicted, they would likely be executed at Guantanamo.
Before being shipped to Guantanamo, five of the defendants were held without charges or legal representation by the U.S. Central Intelligence Agency in secret prisons in Eastern Europe and elsewhere and reportedly subjected to torture.
The Bush Administration has acknowledged that at least one of the defendants, Mr. Mohammed, the reported “mastermind” of the September 11, 2001 attack on the World Trade Center and Pentagon, was subjected to “waterboarding” while in custody.
Waterboarding, a technique that simulates drowning, has been acknowledged as torture for hundreds of years. During World War Two, U.S. authorities prosecuted Japanese soldiers for using the practice against American prisoners of war. The newly-appointed U.S. Attorney General, Michael Mukasey, has declined to say whether waterboarding is torture.
Vice President Dick Cheney has vigorously defended the use of waterboarding and other harsh interrogation techniques, referring to them as “a tougher program for a very few tougher customers.”
Of the six men charged, Mr. Mohammed and four others were held for as long as three years in the secret C.I.A. prisons that were part of what the agency calls its “high-value terrorist interrogation program.” The prisons were established in 2002, but the administration did not publicly reveal their existence until 2006, when Mr. Mohammed and other detainees were moved from the C.I.A. facilities to the military prison in Guantánamo Bay, Cuba.
Military authorities have declared that no evidence obtained through torture will be used at the trials.
But many legal experts, including Columbia University law professor Scott Horton, are questioning whether the government can convict the six without using evidence obtained through torture.
Horton also told IPS he believes the process used to establish the Military Commissions -- criminal courts run by the U.S. armed forces -- is likely to result in what says will be “a series of show trials” timed to strengthen the Republican Party’s chances in the 2008 presidential election.
Horton is one of a large group of lawyers and legal scholars who are questioning the government’s motives and well as its timing in deciding to move ahead with the trials.
He added, “After being held for six years, there is a suspicion that the timing of trials is being ‘politically manipulated’ to coincide with the 2008 presidential election. He said he feared the result will be a case “bordering on a show trial."
This viewed is shared by Michael Ratner, president of the Center for Constitutional Rights (CCR), a New York-based legal advocacy group, which represents one of the defendants, Mohammad al Qahtani, who has been held at Guantanamo for six years and claims to have been tortured during that time.
Ratner told IPS that the Military Commission system “has none of the guarantees of regular trials. Coerced and hearsay evidence can be used. There is no jury only a group of military officers and the judge is appointed by the Bush administration. Much of the trial can be held in secret and the defendant does not get to see all of the evidence. After this sham process the defendant if convicted can receive the death penalty. There is a barbarity to the actions of the Bush administration that is without precedent.”
Many military lawyers have expressed similar views. For example, the head prosecutor at Guantánamo, Colonel Morris Davis, resigned when he was placed directly under the command of the General Counsel of the Department of Defense, a principal author of the military commissions system.
And lifelong Republican John Hutson, a retired Judge Advocate General, has expressed increasing frustration with the Bush administration's treatment of detainees at Guantanamo Bay. Hutson has become a leading voice among former military officials opposing Bush policies on Guantanamo Bay and torture, worried about the precedent it would set for future conflicts.
But the Bush Administration argues that ordinary courts are not equipped to handle the sensitive national security considerations involved in trying top
terrorists.
A spokesman for the Pentagon, Air Force Brig. Gen. Thomas W. Hartmann, a Defense Department legal adviser, said the trials will be "as open as possible,", and the accused will have the right to call their own witnesses, cross-examine prosecution witnesses and see the evidence presented against them.
"There will be no secret trials," he said. He added that the defendants will be tried by a 12-member military commission, which must reach a unanimous verdict. A decision to impose a capital sentence also must be unanimous, he said.
But Hartmann declined to answer questions about the admissibility of evidence
obtained by waterboarding, which the CIA has acknowledged using to extract information from one of those now being charged.
The procedures of the military commissions have been repeatedly challenged in U.S. civilian courts, resulting in a number of stinging defeats for the Bush Administration and contributing to the delays in beginning prosecutions.
The legal saga began in 2001, when President Bush issued an executive order establishing military commissions to try those captured in the “War on Terror.” But in 2004, a federal judge ruled that Salim Hamdan – accused of being a driver of Osama bin Laden – could not be tried by a commission established by an executive order. Only an act of congress, the court suggested, could be legal.
So in December 2005, a Republican-controlled congress passed the Detainee Treatment Act of 2005 (DTA). It stripped U.S. courts of jurisdiction over habeas corpus petitions filed on behalf of Guantánamo detainees challenging the reason for their detention and vested exclusive review of final decisions of military commissions in a single circuit court.
A year later, an appeals court overturned the Hamdan decision. And a year after that, the Supreme Court reversed the appeals court decision. The High Court ruled that military commissions, as defined under the President’s executive order, violated military law and the Geneva Conventions.
Congress then hurriedly enacted the Military Commissions Act of 2005, which President Bush signed into law in early 2006. That law, which is still under challenge in the courts, became the basis of the current prosecutions.
The forthcoming trials have also generated considerable interest abroad. For example, the influential British newspaper, The Independent, wrote last month, “The decision to use Mohammed and the others as guinea-pigs in a constitutionally dubious legal proceeding is likely to trigger a firestorm of anti-American sentiment in the Islamic world and spark a fractious domestic debate in an already highly charged presidential election year.”
Concern about the credibility of the U.S. has also been voiced by many American legal scholars.
David Cole, one of America’s preeminent constitutional authorities, told IPS, “For better or worse, the U.S. is a world leader on matters of human rights. When the US violates human rights in the fight against terrorism, it sends a message to autocrats and dictators worldwide that they, too, can deny human rights in the name of counterterrorism.”
This viewed was echoed by he CCR’s Ratner, who told IPS, “These trials are important because the U.S., a country that often criticizes torture and military tribunals in other countries such as Nigeria and Turkey is now using torture and trials outside its normal system to try alleged 9/11 conspirators.”
And This view was echoed by Ratner, who said: "These trials are important because the U.S., a country that often criticises torture and military tribunals in other countries -- such as Nigeria and Turkey -- is now using torture and trials outside its normal system to try the alleged Sep. 11 conspirators.
“These trials, if they ever do occur, cannot deliver justice. The use of secret evidence, hearsay evidence (where the accused does not have the opportunity to cross-examine the witness against him), and evidence possibly gained through torture and other cruel and inhuman interrogation techniques assures that the trials will not be fair,” he told us.
Gabor Rona, International Legal Director for legal advocacy group Human Rights First, concurs. He told us, “This process was designed not to do justice, but to assure convictions. If it is justice that is sought, then there is little reason for inventing a new system of trials where everything is uncertain and the rules are made up as the cases proceed. If it is justice that is sought, there is little logic in casting aside the legal architecture that has served the US well for over 200 years. Both before and since 9/11, America's normal criminal justice system has handled dozens of often difficult cases involving allegations of international terrorism, using established rules consistent with international principles of fair trial.”
He added, “These trials will be a stain on America's reputation for fairness. These trials will harm US relations with the rest of the world, will give ammunition to those who promote international terrorism, and will setback the cause of human rights values around the world.”
As the U.S. moves toward the death-sentence trials of six suspected terrorists at Guantanamo Bay, Cuba, legal scholars and human rights advocates are raising questions not only about the process that led to the prosecutions but also about the Bush Administration’s motives in bringing the charges now and the credibility of the trials themselves.
The charges filed against the six, including alleged Sept. 11 mastermind Khalid Sheik Mohammed, outline a litany of war crimes and include conspiracy, murder, attacking civilians, terrorism and supporting terrorism. All six suspects are being held at Guantanamo Bay, Cuba, and the military plans to try the six together. If convicted, they would likely be executed at Guantanamo.
Before being shipped to Guantanamo, five of the defendants were held without charges or legal representation by the U.S. Central Intelligence Agency in secret prisons in Eastern Europe and elsewhere and reportedly subjected to torture.
The Bush Administration has acknowledged that at least one of the defendants, Mr. Mohammed, the reported “mastermind” of the September 11, 2001 attack on the World Trade Center and Pentagon, was subjected to “waterboarding” while in custody.
Waterboarding, a technique that simulates drowning, has been acknowledged as torture for hundreds of years. During World War Two, U.S. authorities prosecuted Japanese soldiers for using the practice against American prisoners of war. The newly-appointed U.S. Attorney General, Michael Mukasey, has declined to say whether waterboarding is torture.
Vice President Dick Cheney has vigorously defended the use of waterboarding and other harsh interrogation techniques, referring to them as “a tougher program for a very few tougher customers.”
Of the six men charged, Mr. Mohammed and four others were held for as long as three years in the secret C.I.A. prisons that were part of what the agency calls its “high-value terrorist interrogation program.” The prisons were established in 2002, but the administration did not publicly reveal their existence until 2006, when Mr. Mohammed and other detainees were moved from the C.I.A. facilities to the military prison in Guantánamo Bay, Cuba.
Military authorities have declared that no evidence obtained through torture will be used at the trials.
But many legal experts, including Columbia University law professor Scott Horton, are questioning whether the government can convict the six without using evidence obtained through torture.
Horton also told IPS he believes the process used to establish the Military Commissions -- criminal courts run by the U.S. armed forces -- is likely to result in what says will be “a series of show trials” timed to strengthen the Republican Party’s chances in the 2008 presidential election.
Horton is one of a large group of lawyers and legal scholars who are questioning the government’s motives and well as its timing in deciding to move ahead with the trials.
He added, “After being held for six years, there is a suspicion that the timing of trials is being ‘politically manipulated’ to coincide with the 2008 presidential election. He said he feared the result will be a case “bordering on a show trial."
This viewed is shared by Michael Ratner, president of the Center for Constitutional Rights (CCR), a New York-based legal advocacy group, which represents one of the defendants, Mohammad al Qahtani, who has been held at Guantanamo for six years and claims to have been tortured during that time.
Ratner told IPS that the Military Commission system “has none of the guarantees of regular trials. Coerced and hearsay evidence can be used. There is no jury only a group of military officers and the judge is appointed by the Bush administration. Much of the trial can be held in secret and the defendant does not get to see all of the evidence. After this sham process the defendant if convicted can receive the death penalty. There is a barbarity to the actions of the Bush administration that is without precedent.”
Many military lawyers have expressed similar views. For example, the head prosecutor at Guantánamo, Colonel Morris Davis, resigned when he was placed directly under the command of the General Counsel of the Department of Defense, a principal author of the military commissions system.
And lifelong Republican John Hutson, a retired Judge Advocate General, has expressed increasing frustration with the Bush administration's treatment of detainees at Guantanamo Bay. Hutson has become a leading voice among former military officials opposing Bush policies on Guantanamo Bay and torture, worried about the precedent it would set for future conflicts.
But the Bush Administration argues that ordinary courts are not equipped to handle the sensitive national security considerations involved in trying top
terrorists.
A spokesman for the Pentagon, Air Force Brig. Gen. Thomas W. Hartmann, a Defense Department legal adviser, said the trials will be "as open as possible,", and the accused will have the right to call their own witnesses, cross-examine prosecution witnesses and see the evidence presented against them.
"There will be no secret trials," he said. He added that the defendants will be tried by a 12-member military commission, which must reach a unanimous verdict. A decision to impose a capital sentence also must be unanimous, he said.
But Hartmann declined to answer questions about the admissibility of evidence
obtained by waterboarding, which the CIA has acknowledged using to extract information from one of those now being charged.
The procedures of the military commissions have been repeatedly challenged in U.S. civilian courts, resulting in a number of stinging defeats for the Bush Administration and contributing to the delays in beginning prosecutions.
The legal saga began in 2001, when President Bush issued an executive order establishing military commissions to try those captured in the “War on Terror.” But in 2004, a federal judge ruled that Salim Hamdan – accused of being a driver of Osama bin Laden – could not be tried by a commission established by an executive order. Only an act of congress, the court suggested, could be legal.
So in December 2005, a Republican-controlled congress passed the Detainee Treatment Act of 2005 (DTA). It stripped U.S. courts of jurisdiction over habeas corpus petitions filed on behalf of Guantánamo detainees challenging the reason for their detention and vested exclusive review of final decisions of military commissions in a single circuit court.
A year later, an appeals court overturned the Hamdan decision. And a year after that, the Supreme Court reversed the appeals court decision. The High Court ruled that military commissions, as defined under the President’s executive order, violated military law and the Geneva Conventions.
Congress then hurriedly enacted the Military Commissions Act of 2005, which President Bush signed into law in early 2006. That law, which is still under challenge in the courts, became the basis of the current prosecutions.
The forthcoming trials have also generated considerable interest abroad. For example, the influential British newspaper, The Independent, wrote last month, “The decision to use Mohammed and the others as guinea-pigs in a constitutionally dubious legal proceeding is likely to trigger a firestorm of anti-American sentiment in the Islamic world and spark a fractious domestic debate in an already highly charged presidential election year.”
Concern about the credibility of the U.S. has also been voiced by many American legal scholars.
David Cole, one of America’s preeminent constitutional authorities, told IPS, “For better or worse, the U.S. is a world leader on matters of human rights. When the US violates human rights in the fight against terrorism, it sends a message to autocrats and dictators worldwide that they, too, can deny human rights in the name of counterterrorism.”
This viewed was echoed by he CCR’s Ratner, who told IPS, “These trials are important because the U.S., a country that often criticizes torture and military tribunals in other countries such as Nigeria and Turkey is now using torture and trials outside its normal system to try alleged 9/11 conspirators.”
And This view was echoed by Ratner, who said: "These trials are important because the U.S., a country that often criticises torture and military tribunals in other countries -- such as Nigeria and Turkey -- is now using torture and trials outside its normal system to try the alleged Sep. 11 conspirators.
“These trials, if they ever do occur, cannot deliver justice. The use of secret evidence, hearsay evidence (where the accused does not have the opportunity to cross-examine the witness against him), and evidence possibly gained through torture and other cruel and inhuman interrogation techniques assures that the trials will not be fair,” he told us.
Gabor Rona, International Legal Director for legal advocacy group Human Rights First, concurs. He told us, “This process was designed not to do justice, but to assure convictions. If it is justice that is sought, then there is little reason for inventing a new system of trials where everything is uncertain and the rules are made up as the cases proceed. If it is justice that is sought, there is little logic in casting aside the legal architecture that has served the US well for over 200 years. Both before and since 9/11, America's normal criminal justice system has handled dozens of often difficult cases involving allegations of international terrorism, using established rules consistent with international principles of fair trial.”
He added, “These trials will be a stain on America's reputation for fairness. These trials will harm US relations with the rest of the world, will give ammunition to those who promote international terrorism, and will setback the cause of human rights values around the world.”
Wednesday, February 13, 2008
LET THE EAGLE WHORE
By William Fisher
Since this is the season of nominations – Grammies, Oscars, etc. – it’s time for me to disclose my choice for the winner of “The Most Outrageous Statement of the Year.”
Here’s the statement: George W. Bush has been "most respectful in terms of respecting the civil liberties and rights of individuals while engaged in the important task of fighting for freedom." The president “respects liberty so profoundly that he has protected it and has safeguarded civil liberties more than any other president in wartime that I know of.”
And the maker of that statement? Here’s a hint: He’s something of a singer – “Let The Eagle Soar” is among his favorites. And he’s also something of a prude: The government department he headed spent $8,000 on blue drapes to hide two giant, semi-nude art deco statues, one a female representing the “Spirit of Justice”, with its arms raised and a toga draped over its body, but a single breast exposed; the other a man depicting the “Majesty of Law” with a cloth covering his midsection.
You guessed it: Former U.S. Attorney General John Ashcroft.
Speaking to hundreds of Missouri Republicans attending the party's statewide Lincoln Days festivities last weekend, the one-time Missouri governor and senator said the president has been using security measures to protect freedoms, not to curb freedom.
"It is stunning to me that when the president of the United States, George W. Bush, simply says that we need to be able to monitor calls being made to terrorist territories, known geographies that are the source of terrorist activities, or known terrorists who are making calls into the United States … that some people see it as an infringement somehow, " Ashcroft said.
But how much credibility does the Bush first-term Attorney General have on the subject of protecting civil liberties and the rule of law?
Isn’t this the same guy who pressured Congress to hurriedly enact the USA Patriot Act, which gave astonishing powers to federal agencies to dramatically increase the government's surveillance, search-and-seizure and wiretapping authority?
Isn’t this the same guy who authorized DOJ officials to monitor the discussions that attorneys have with clients who are in federal custody, including those detained, but not charged with a criminal offense in violation of the First, Fourth, Fifth and Sixth Amendments to the Constitution?
Who rounded up and imprisoned over 1200 men of Middle Eastern descent based largely on pretextual immigration violations and refused to disclose their identity and location and the reason for their detention, while denying them fundamental due process rights? (The roundup produced some deportations, but NO criminal convictions.)
Who sought to question roughly 8,000 men of Middle Eastern descent, who were legal residents of the U.S., a flagrant form of racial profiling?
Who imposed a policy of selectively enforcing deportation orders against men from Middle Eastern countries?
Who helped draft the presidential order that created secret military tribunals to bypass the U.S. court system, contained significant due process violations, and allowed for the imposition of the death penalty?
Who initiated a project called Operation TIPS (Terrorist Information and Prevention System) to recruit and train a million volunteers (including postal workers, utility personnel and the like) in 10 cities who would be encouraged to report suspicious terrorist activity?
Who approved racial profiling guidelines that were little more than rhetorical smoke and mirrors, providing no rights or remedies and included a broad and largely undefined exception when ""national security" concerns came into play?
Who encouraged the 93 US Attorneys to lobby members of Congress who voted for an amendment to prohibit DOJ funds to be used to enforce ""sneak and peak"" warrants?
Who failed to bring any new cases against any police departments for police misconduct or abuse and attempted to change the definition of racial profiling to undermine future litigation?
Who killed a pilot program that provided federal money to pay for DNA testing to exonerate innocent inmates?
Who issued an order that certified federal agents to repeal the licenses of any doctor who prescribed lethal drugs for terminally ill patients?
Who further blurred the line between church and state by conducting daily sessions of prayer and Bible study at the DOJ, while being a major proponent of Bush's faith based initiative and working to create a legal theory that would withstand a constitutional challenge to direct federal funding of religious groups including churches, synagogues and mosques?
And who thumbed his nose at the First Amendment right to dissent by telling Congress that anyone who raised concerns about his actions would ""aid terrorists"" and ""give ammunition to America's enemies"?
In the wake of 9/11, it is understandable that the American people were traumatized and terrified that the next shoe would soon drop – on them. But John Ashcroft and his politically-appointed cronies at the Justice Department blatantly exploited that fear. They pandered to the worst instincts of the American people.
Let us not forget that it was John Ashcroft who hastily convened a taxpayer-financed satellite press conference while on a trip to Moscow to proclaim that the U.S. had arrested a man who planned to use a radiological “dirty bomb” to blow up apartment buildings in the U.S. (a charge that was nowhere to be found when American citizen Jose Padilla was finally put on trial after three years of virtually incommunicado imprisonment.)
And, speaking of cronies, let us note that Mr. Ashcroft’s loyalty to the president is not without its upside. Recently, the U.S. Attorney for the New Jersey, Christopher Christie, selected Ashcroft, his former boss, as one of four attorneys hired in a no-bid process to monitor five medical device manufacturers companies that New Jersey prosecutors had investigated for funneling kickbacks to orthopedic surgeons.
Ashcroft's contract will bring his legal and consulting firm between $27 million and $52 million for monitoring compliance at Indiana-based Zimmer Holdings, Inc.
So The Eagle will soar – all the way to the bank.
Since this is the season of nominations – Grammies, Oscars, etc. – it’s time for me to disclose my choice for the winner of “The Most Outrageous Statement of the Year.”
Here’s the statement: George W. Bush has been "most respectful in terms of respecting the civil liberties and rights of individuals while engaged in the important task of fighting for freedom." The president “respects liberty so profoundly that he has protected it and has safeguarded civil liberties more than any other president in wartime that I know of.”
And the maker of that statement? Here’s a hint: He’s something of a singer – “Let The Eagle Soar” is among his favorites. And he’s also something of a prude: The government department he headed spent $8,000 on blue drapes to hide two giant, semi-nude art deco statues, one a female representing the “Spirit of Justice”, with its arms raised and a toga draped over its body, but a single breast exposed; the other a man depicting the “Majesty of Law” with a cloth covering his midsection.
You guessed it: Former U.S. Attorney General John Ashcroft.
Speaking to hundreds of Missouri Republicans attending the party's statewide Lincoln Days festivities last weekend, the one-time Missouri governor and senator said the president has been using security measures to protect freedoms, not to curb freedom.
"It is stunning to me that when the president of the United States, George W. Bush, simply says that we need to be able to monitor calls being made to terrorist territories, known geographies that are the source of terrorist activities, or known terrorists who are making calls into the United States … that some people see it as an infringement somehow, " Ashcroft said.
But how much credibility does the Bush first-term Attorney General have on the subject of protecting civil liberties and the rule of law?
Isn’t this the same guy who pressured Congress to hurriedly enact the USA Patriot Act, which gave astonishing powers to federal agencies to dramatically increase the government's surveillance, search-and-seizure and wiretapping authority?
Isn’t this the same guy who authorized DOJ officials to monitor the discussions that attorneys have with clients who are in federal custody, including those detained, but not charged with a criminal offense in violation of the First, Fourth, Fifth and Sixth Amendments to the Constitution?
Who rounded up and imprisoned over 1200 men of Middle Eastern descent based largely on pretextual immigration violations and refused to disclose their identity and location and the reason for their detention, while denying them fundamental due process rights? (The roundup produced some deportations, but NO criminal convictions.)
Who sought to question roughly 8,000 men of Middle Eastern descent, who were legal residents of the U.S., a flagrant form of racial profiling?
Who imposed a policy of selectively enforcing deportation orders against men from Middle Eastern countries?
Who helped draft the presidential order that created secret military tribunals to bypass the U.S. court system, contained significant due process violations, and allowed for the imposition of the death penalty?
Who initiated a project called Operation TIPS (Terrorist Information and Prevention System) to recruit and train a million volunteers (including postal workers, utility personnel and the like) in 10 cities who would be encouraged to report suspicious terrorist activity?
Who approved racial profiling guidelines that were little more than rhetorical smoke and mirrors, providing no rights or remedies and included a broad and largely undefined exception when ""national security" concerns came into play?
Who encouraged the 93 US Attorneys to lobby members of Congress who voted for an amendment to prohibit DOJ funds to be used to enforce ""sneak and peak"" warrants?
Who failed to bring any new cases against any police departments for police misconduct or abuse and attempted to change the definition of racial profiling to undermine future litigation?
Who killed a pilot program that provided federal money to pay for DNA testing to exonerate innocent inmates?
Who issued an order that certified federal agents to repeal the licenses of any doctor who prescribed lethal drugs for terminally ill patients?
Who further blurred the line between church and state by conducting daily sessions of prayer and Bible study at the DOJ, while being a major proponent of Bush's faith based initiative and working to create a legal theory that would withstand a constitutional challenge to direct federal funding of religious groups including churches, synagogues and mosques?
And who thumbed his nose at the First Amendment right to dissent by telling Congress that anyone who raised concerns about his actions would ""aid terrorists"" and ""give ammunition to America's enemies"?
In the wake of 9/11, it is understandable that the American people were traumatized and terrified that the next shoe would soon drop – on them. But John Ashcroft and his politically-appointed cronies at the Justice Department blatantly exploited that fear. They pandered to the worst instincts of the American people.
Let us not forget that it was John Ashcroft who hastily convened a taxpayer-financed satellite press conference while on a trip to Moscow to proclaim that the U.S. had arrested a man who planned to use a radiological “dirty bomb” to blow up apartment buildings in the U.S. (a charge that was nowhere to be found when American citizen Jose Padilla was finally put on trial after three years of virtually incommunicado imprisonment.)
And, speaking of cronies, let us note that Mr. Ashcroft’s loyalty to the president is not without its upside. Recently, the U.S. Attorney for the New Jersey, Christopher Christie, selected Ashcroft, his former boss, as one of four attorneys hired in a no-bid process to monitor five medical device manufacturers companies that New Jersey prosecutors had investigated for funneling kickbacks to orthopedic surgeons.
Ashcroft's contract will bring his legal and consulting firm between $27 million and $52 million for monitoring compliance at Indiana-based Zimmer Holdings, Inc.
So The Eagle will soar – all the way to the bank.
Friday, February 08, 2008
KABUKI ON THE HILL
By William Fisher
The partisan political divide morphed into a chasm again this week as the House of Representatives Judiciary Committee convened to grill Attorney General Michael Mukasey for the first time since his confirmation hearings.
The ostensible objective of the hearing was “oversight.” But one has to wonder what, if anything, our elected representatives learned that everyone didn’t already know.
If there was a big winner in this all-too-familiar tableau, it was the audience, which got to enjoy some of America’s best Kabuki Theater.
The Democrats on the panel, under the velvet-voiced chairmanship of the patrician John Conyers of Michigan, clearly smelled blood in the water. Their menu was a litany of allegedly penetrating questions whose answers were totally predictable.
These covered such issues as whether the AG would open a criminal investigation of the CIA’s use of waterboarding, whether he thought waterboarding constituted torture, whether he would prosecute Bush’s chief of staff, Joshua Bolten, and former White House counsel Harriet Miers, for failing to show up in response to a congressional contempt citation, whether the telecom companies involved in the FISA controversy should receive retroactive immunity from prosecution for helping the government to snoop on American citizens, whether he thought the CIA destroyed their interrogation tapes simply to protect the spooks from prosecution – and lots more fun subjects.
Our elected representatives put on their most serious faces and asked their questions with just the right combination of gravitas and passion.
The AG, soft-spoken and seemingly unflappable, answered with his own mix of legalese and gravitas – at least a welcome change from the bumbling, confused and disingenuous ramblings of his predecessor, Alberto Gonzales.
But his answers were as predictable as the questions he was answering.
Take, for example, his response to the question of opening a criminal investigation into the CIA’s use of waterboarding.
No, he would not open such an investigation because a memorandum prepared at the time by the Department of Justice’s Office of Legal Counsel concluded that the practice was legal. An investigation would place the DOJ in the position of investigating procedures it had found to be lawful.
What was never asked: If the DOJ found waterboarding “legal at that time,” why was it stricken from the CIA’s menu of “enhanced interrogation” techniques? And if waterboarding become un-legal at some point, why and when?
And, no he would not let congress see the OLC memorandum because (a) it was classified and (b) it was covered by executive privilege.
And yet again, no, he would not prosecute Bolten and Miers because the president has the authority to instruct his senior aides not to comply with congressional subpoenas or contempt citations. It was a “separation of powers” issue, he said.
Mukasey then addressed the Foreign Intelligence Surveillance Act (FISA). He urged Congress to reauthorize the expiring law, including granting retroactive immunity to the private telecom companies who cooperated with the government to intercept, without warrants, telephone calls and emails the Administration believed involved terrorists.
The AG said the companies participated at the government’s request and believed their efforts to be “necessary and lawful.” Makes you wonder about Constitutional education of the army of lawyers who work for these telecom giants!
Maybe these corporate law types didn’t know that FISA requires the government to obtain warrants from its own special and highly secretive court before intercepting phone calls or emails involving Americans. That’s odd, because any first-year law student could tell you this requirement is based on the Fourth Amendment of the U.S. Constitution, which forbids unlawful searches and seizures.
And so it went on. And on. And on.
The Democrats got to ask their headline-hungry questions, looking less for answers than for TV soundbites. Good thing too, because the answers were few and far between.
But, not to be outdone, the Republican members of the Committee, led by the senior member of his party, Rep. Lamar Smith of Texas, had their own agenda: making the Bush Administration look, well, better. Like the Dems, GOP members’ leading questions came mostly in the form of statements.
For example, Rep. Smith asked Mukasey whether he would agree that “99 per cent of the American people would support harsh interrogation techniques on a known terrorist to save thousands of American lives.”
Mukasey suggested he didn’t know much about the 99 per cent and declined to answer.
Not to worry: the question got asked.
After hours of largely unilluminating ping pong law, the performance mercifully came to an end.
The Democrats got to score their points. The Republicans got to pay their party dues. Whereupon both sides rushed back to their offices to get their press releases out.
And the AG smiled and took his gravitas back to the DOJ.
Mission Accomplished!
The partisan political divide morphed into a chasm again this week as the House of Representatives Judiciary Committee convened to grill Attorney General Michael Mukasey for the first time since his confirmation hearings.
The ostensible objective of the hearing was “oversight.” But one has to wonder what, if anything, our elected representatives learned that everyone didn’t already know.
If there was a big winner in this all-too-familiar tableau, it was the audience, which got to enjoy some of America’s best Kabuki Theater.
The Democrats on the panel, under the velvet-voiced chairmanship of the patrician John Conyers of Michigan, clearly smelled blood in the water. Their menu was a litany of allegedly penetrating questions whose answers were totally predictable.
These covered such issues as whether the AG would open a criminal investigation of the CIA’s use of waterboarding, whether he thought waterboarding constituted torture, whether he would prosecute Bush’s chief of staff, Joshua Bolten, and former White House counsel Harriet Miers, for failing to show up in response to a congressional contempt citation, whether the telecom companies involved in the FISA controversy should receive retroactive immunity from prosecution for helping the government to snoop on American citizens, whether he thought the CIA destroyed their interrogation tapes simply to protect the spooks from prosecution – and lots more fun subjects.
Our elected representatives put on their most serious faces and asked their questions with just the right combination of gravitas and passion.
The AG, soft-spoken and seemingly unflappable, answered with his own mix of legalese and gravitas – at least a welcome change from the bumbling, confused and disingenuous ramblings of his predecessor, Alberto Gonzales.
But his answers were as predictable as the questions he was answering.
Take, for example, his response to the question of opening a criminal investigation into the CIA’s use of waterboarding.
No, he would not open such an investigation because a memorandum prepared at the time by the Department of Justice’s Office of Legal Counsel concluded that the practice was legal. An investigation would place the DOJ in the position of investigating procedures it had found to be lawful.
What was never asked: If the DOJ found waterboarding “legal at that time,” why was it stricken from the CIA’s menu of “enhanced interrogation” techniques? And if waterboarding become un-legal at some point, why and when?
And, no he would not let congress see the OLC memorandum because (a) it was classified and (b) it was covered by executive privilege.
And yet again, no, he would not prosecute Bolten and Miers because the president has the authority to instruct his senior aides not to comply with congressional subpoenas or contempt citations. It was a “separation of powers” issue, he said.
Mukasey then addressed the Foreign Intelligence Surveillance Act (FISA). He urged Congress to reauthorize the expiring law, including granting retroactive immunity to the private telecom companies who cooperated with the government to intercept, without warrants, telephone calls and emails the Administration believed involved terrorists.
The AG said the companies participated at the government’s request and believed their efforts to be “necessary and lawful.” Makes you wonder about Constitutional education of the army of lawyers who work for these telecom giants!
Maybe these corporate law types didn’t know that FISA requires the government to obtain warrants from its own special and highly secretive court before intercepting phone calls or emails involving Americans. That’s odd, because any first-year law student could tell you this requirement is based on the Fourth Amendment of the U.S. Constitution, which forbids unlawful searches and seizures.
And so it went on. And on. And on.
The Democrats got to ask their headline-hungry questions, looking less for answers than for TV soundbites. Good thing too, because the answers were few and far between.
But, not to be outdone, the Republican members of the Committee, led by the senior member of his party, Rep. Lamar Smith of Texas, had their own agenda: making the Bush Administration look, well, better. Like the Dems, GOP members’ leading questions came mostly in the form of statements.
For example, Rep. Smith asked Mukasey whether he would agree that “99 per cent of the American people would support harsh interrogation techniques on a known terrorist to save thousands of American lives.”
Mukasey suggested he didn’t know much about the 99 per cent and declined to answer.
Not to worry: the question got asked.
After hours of largely unilluminating ping pong law, the performance mercifully came to an end.
The Democrats got to score their points. The Republicans got to pay their party dues. Whereupon both sides rushed back to their offices to get their press releases out.
And the AG smiled and took his gravitas back to the DOJ.
Mission Accomplished!
Thursday, February 07, 2008
AT THE HOUSE OF MIRRORS
By William Fisher
Attorney General Michael Mukasey today refused to open a criminal investigation into the Central Intelligence Agency’s (CIA) use of waterboarding and other “enhanced interrogation techniques” or to let Congress see the memorandum prepared by the Department of Justice (DOJ) Office of Legal Counsel (OLC) that concluded that these practices were legal.
The DOJ found waterboarding “legal at that time,” Mukasey told the House of Representatives Judiciary Committee, but said the documents relating to that conclusion were classified. He added that no criminal investigation was feasible because it would place the DOJ in the position of investigating procedures it had found to be lawful.
At his confirmation hearings last October, Mukasey declined to say whether he thought waterboarding was torture.
Republican members of the Judiciary Committee, led by the senior member of his party, Rep. Lamar Smith of Texas, asked Mukasey whether he would agree that “99 per cent of the American people would support harsh interrogation techniques on a known terrorist to save thousands of American lives.” Mukasey declined to answer.
Mukasey also addressed the Foreign Intelligence Surveillance Act (FISA). He urged Congress to reauthorize the law, including granting retroactive immunity to private telecommunications companies which cooperated with the government to intercept, without warrants, telephone calls and emails the Administration believed involved terrorists.
He said the companies participated at the government’s request and believed their efforts to be “necessary and lawful.”
The issue of granting immunity to the telecom companies is at the center of the Senate’s current debate on the reauthorization of the FISA law, which is set to expire next week. The law requires the government to obtain warrants from a special FISA court before phone calls or emails involving Americans are intercepted. This requirement is based on the Fourth Amendment of the U.S. Constitution, which forbids unlawful searches and seizures.
The House hearing came at a time when the issue of interrogation techniques was grabbing headlines again after a period of relative silence. The headlines were triggered by the disclosure yesterday by White House spokesman Tony Fratto, who said that waterboarding is legal and that President Bush could authorize the CIA to resume using the simulated-drowning method under extraordinary circumstances.
Fratto said such extraordinary circumstances could include a "belief that an attack might be imminent."
In another surprise disclosure yesterday, CIA Director General Michael Hayden told a Congressional committee that waterboarding had been used by the agency as an interrogation technique against three detainees held in secret custody. The White House has always denied that the U.S. had engaged in torture but had never confirmed that waterboarding had been used.
The White House comments came a day after Hayden testified before a congressional committee that the agency had used waterboarding on Al Qaeda suspects in 2002 and 2003. He also identified three prisoners, including self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed, who he said were the only detainees subjected to the method.
Waterboarding refers to a practice that involves strapping down a prisoner, placing a cloth over his face and dousing him with water to simulate the sensation of drowning. The technique has been known since the Spanish Inquisition and has been the subject of a number of war crimes trials, including trials of Japanese soldiers who used waterboarding on American troops during World War Two.
The White House position on the issue is emblematic of its long-standing efforts to expand the power of the executive branch of government and push back against attempts by Congress to limit the president's authority.
Senate Democrats have joined numerous legal and human rights advocacy groups in demanding a government investigation into the matter to determine whether laws forbidding torture were broken. Today, Senate Majority Whip Richard J. Durbin, Illinois Democrat, told Mukasey in a letter that he would stall the nomination of U.S. District Judge Mark Filip in Chicago to be deputy attorney general until Mukasey responds to his request for a criminal investigation and other torture-related inquiries.
While the issues of waterboarding and other harsh interrogation techniques have rarely been discussed by those currently seeking their party’s presidential nomination, leading candidates have spoken out on the subject.
Despite her often-expressed opposition to torture, Hillary Clinton said in a meeting with the New York Daily News editorial board in October that waterboarding and other harsh interrogation practices are “acceptable in some circumstances.”
Asked about the "ticking time bomb" scenario, in which you've captured the terrorist and don't have time for a normal interrogation, she said there is a place for what she termed "severity." The conversation referred to waterboarding, hypothermia, and other techniques commonly described as torture.
"I have said that those are very rare but if they occur there has to be some lawful authority for pursuing that," she responded, adding, “There has to be some check and balance, some reporting.”
Her Democratic Party opponent, Sen. Barack Obama of Illinois, has said in speeches that if he becomes the nominee, his opponent “will not be able to say that I wavered on something as fundamental as whether or not it’s OK for America to use torture, because it’s never OK.”
Their leading Republican rival, Sen. John McCain of Arizona – who was tortured during his five years as a prisoner of war during the Vietnam conflict -- has been a consistent leader of efforts to outlaw waterboarding and other harsh interrogation methods. In a recent GOP presidential debate, McCain said it was inconceivable that "anyone could believe that [waterboarding is] not torture. It's in violation of the Geneva Convention. It's in violation of existing law."
Mc Cain has been an outspoken supporter of two laws banning the practices -- the so-called McCain Amendment to the Detainee Treatment Act of 2005, and the 2006 Military Commissions Act. These laws -- as well as a Supreme Court ruling on the treatment of detainees – have been widely interpreted as banning the CIA's use of extreme interrogation methods.
U.S. and international organizations have reacted angrily to the Administration’s positions. Amnesty International called for a full, independent and prompt criminal investigation. The organization also called for an investigation that goes beyond that initiated by the U.S. Attorney General last month into the destruction by the CIA of videotapes of interrogations, and is fully consistent with international standards
Amnesty’s Mary Shaw told us, “Waterboarding is indeed a form of torture. For this reason, the Army Field Manual expressly prohibits its use. It clearly violates U.S. and international laws against cruel, inhuman, or degrading treatment. No exceptions, no matter when it happened or under what circumstances.”
Amnesty is calling on Congress to “pass legislation that would ensure uniform interrogation standards for anyone in U.S. custody or control, anywhere in the world. By voting to restrict all U.S. agents to the interrogation techniques in the Army Field Manual, Congress can take a significant step towards preventing torture and ill treatment from occurring in the future, and towards restoring this country's moral leadership in the world.”
According to Amnesty’s Rob Freer, “It has become clear in recent years that the U.S. administration has interpreted U.S. and international law in ways that have sought to avoid the absolute prohibition of torture and other ill-treatment and that have facilitated impunity for human rights violations."
The United Nations also weighed in on the torture issue this week. Manfred Nowak, the U.N. Special Rapporteur on torture, blasted the White House for defending the use of waterboarding and urged the U.S. government to give up its defense of "unjustifiable" interrogation methods.
"This is absolutely unacceptable under international human rights law," he said. "Time has come that the government will actually acknowledge that they did something wrong and not continue trying to justify what is unjustifiable."
Attorney General Michael Mukasey today refused to open a criminal investigation into the Central Intelligence Agency’s (CIA) use of waterboarding and other “enhanced interrogation techniques” or to let Congress see the memorandum prepared by the Department of Justice (DOJ) Office of Legal Counsel (OLC) that concluded that these practices were legal.
The DOJ found waterboarding “legal at that time,” Mukasey told the House of Representatives Judiciary Committee, but said the documents relating to that conclusion were classified. He added that no criminal investigation was feasible because it would place the DOJ in the position of investigating procedures it had found to be lawful.
At his confirmation hearings last October, Mukasey declined to say whether he thought waterboarding was torture.
Republican members of the Judiciary Committee, led by the senior member of his party, Rep. Lamar Smith of Texas, asked Mukasey whether he would agree that “99 per cent of the American people would support harsh interrogation techniques on a known terrorist to save thousands of American lives.” Mukasey declined to answer.
Mukasey also addressed the Foreign Intelligence Surveillance Act (FISA). He urged Congress to reauthorize the law, including granting retroactive immunity to private telecommunications companies which cooperated with the government to intercept, without warrants, telephone calls and emails the Administration believed involved terrorists.
He said the companies participated at the government’s request and believed their efforts to be “necessary and lawful.”
The issue of granting immunity to the telecom companies is at the center of the Senate’s current debate on the reauthorization of the FISA law, which is set to expire next week. The law requires the government to obtain warrants from a special FISA court before phone calls or emails involving Americans are intercepted. This requirement is based on the Fourth Amendment of the U.S. Constitution, which forbids unlawful searches and seizures.
The House hearing came at a time when the issue of interrogation techniques was grabbing headlines again after a period of relative silence. The headlines were triggered by the disclosure yesterday by White House spokesman Tony Fratto, who said that waterboarding is legal and that President Bush could authorize the CIA to resume using the simulated-drowning method under extraordinary circumstances.
Fratto said such extraordinary circumstances could include a "belief that an attack might be imminent."
In another surprise disclosure yesterday, CIA Director General Michael Hayden told a Congressional committee that waterboarding had been used by the agency as an interrogation technique against three detainees held in secret custody. The White House has always denied that the U.S. had engaged in torture but had never confirmed that waterboarding had been used.
The White House comments came a day after Hayden testified before a congressional committee that the agency had used waterboarding on Al Qaeda suspects in 2002 and 2003. He also identified three prisoners, including self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed, who he said were the only detainees subjected to the method.
Waterboarding refers to a practice that involves strapping down a prisoner, placing a cloth over his face and dousing him with water to simulate the sensation of drowning. The technique has been known since the Spanish Inquisition and has been the subject of a number of war crimes trials, including trials of Japanese soldiers who used waterboarding on American troops during World War Two.
The White House position on the issue is emblematic of its long-standing efforts to expand the power of the executive branch of government and push back against attempts by Congress to limit the president's authority.
Senate Democrats have joined numerous legal and human rights advocacy groups in demanding a government investigation into the matter to determine whether laws forbidding torture were broken. Today, Senate Majority Whip Richard J. Durbin, Illinois Democrat, told Mukasey in a letter that he would stall the nomination of U.S. District Judge Mark Filip in Chicago to be deputy attorney general until Mukasey responds to his request for a criminal investigation and other torture-related inquiries.
While the issues of waterboarding and other harsh interrogation techniques have rarely been discussed by those currently seeking their party’s presidential nomination, leading candidates have spoken out on the subject.
Despite her often-expressed opposition to torture, Hillary Clinton said in a meeting with the New York Daily News editorial board in October that waterboarding and other harsh interrogation practices are “acceptable in some circumstances.”
Asked about the "ticking time bomb" scenario, in which you've captured the terrorist and don't have time for a normal interrogation, she said there is a place for what she termed "severity." The conversation referred to waterboarding, hypothermia, and other techniques commonly described as torture.
"I have said that those are very rare but if they occur there has to be some lawful authority for pursuing that," she responded, adding, “There has to be some check and balance, some reporting.”
Her Democratic Party opponent, Sen. Barack Obama of Illinois, has said in speeches that if he becomes the nominee, his opponent “will not be able to say that I wavered on something as fundamental as whether or not it’s OK for America to use torture, because it’s never OK.”
Their leading Republican rival, Sen. John McCain of Arizona – who was tortured during his five years as a prisoner of war during the Vietnam conflict -- has been a consistent leader of efforts to outlaw waterboarding and other harsh interrogation methods. In a recent GOP presidential debate, McCain said it was inconceivable that "anyone could believe that [waterboarding is] not torture. It's in violation of the Geneva Convention. It's in violation of existing law."
Mc Cain has been an outspoken supporter of two laws banning the practices -- the so-called McCain Amendment to the Detainee Treatment Act of 2005, and the 2006 Military Commissions Act. These laws -- as well as a Supreme Court ruling on the treatment of detainees – have been widely interpreted as banning the CIA's use of extreme interrogation methods.
U.S. and international organizations have reacted angrily to the Administration’s positions. Amnesty International called for a full, independent and prompt criminal investigation. The organization also called for an investigation that goes beyond that initiated by the U.S. Attorney General last month into the destruction by the CIA of videotapes of interrogations, and is fully consistent with international standards
Amnesty’s Mary Shaw told us, “Waterboarding is indeed a form of torture. For this reason, the Army Field Manual expressly prohibits its use. It clearly violates U.S. and international laws against cruel, inhuman, or degrading treatment. No exceptions, no matter when it happened or under what circumstances.”
Amnesty is calling on Congress to “pass legislation that would ensure uniform interrogation standards for anyone in U.S. custody or control, anywhere in the world. By voting to restrict all U.S. agents to the interrogation techniques in the Army Field Manual, Congress can take a significant step towards preventing torture and ill treatment from occurring in the future, and towards restoring this country's moral leadership in the world.”
According to Amnesty’s Rob Freer, “It has become clear in recent years that the U.S. administration has interpreted U.S. and international law in ways that have sought to avoid the absolute prohibition of torture and other ill-treatment and that have facilitated impunity for human rights violations."
The United Nations also weighed in on the torture issue this week. Manfred Nowak, the U.N. Special Rapporteur on torture, blasted the White House for defending the use of waterboarding and urged the U.S. government to give up its defense of "unjustifiable" interrogation methods.
"This is absolutely unacceptable under international human rights law," he said. "Time has come that the government will actually acknowledge that they did something wrong and not continue trying to justify what is unjustifiable."
Saturday, February 02, 2008
SIGNING AWAY THE CONSTITUTION
By William Fisher
When George W. Bush signed the 2008 National Defense Authorization Act into law last week, he again thumbed his nose at Congress by taking a second now-familiar step: He issued a “Signing Statement” – a declaration that effectively asserts his authority to ignore parts of the law he disagrees with.
His action brought harsh criticism from dozens of legal scholars and advocacy groups who point out that U.S. presidents have the authority under the Constitution to veto or approve acts of Congress – but not to modify them.
Bush's latest Signing Statement declares his right to ignore sections of the law establishing a commission to investigate U.S. contractor fraud in Iraq and Afghanistan, expanding whistleblower protections, requiring that U.S. intelligence agencies respond to congressional requests for documents, banning funding for permanent bases in Iraq, and prohibiting funding of any actions that exercise U.S. control over Iraq's oil revenues.
One Administration critic, United for Peace and Justice (UFPJ) -- the country's largest anti-war coalition with over 1,400 member groups – characterized Bush's action as “arrogant and unconstitutional” and called on Congress to convene hearings to impeach the president.
Bush’s use of Signing Statements has become one of the hallmarks of his Administration. The UFPJ charged that during the past seven years, the same kind of language used by Bush last week “has been the precursor to numerous violations of law by his administration, including sections of law banning the use of torture and banning the use of funds to construct permanent U.S. military bases in Iraq. The president has signed laws blocking funding for the construction of permanent bases in Iraq six times, but never stopped the construction.”
And, in a recent statement, The Constitution Project’s “Coalition to Defend Check and Balances” – a bipartisan group of legal scholars and former Republican and Democratic presidential advisors – declared: “To restore our system of checks and balances, Congress can, and must, exercise its responsibility as a separate and independent branch of government. Congress has a clear constitutional obligation to make the laws, and when it has made such laws, to ensure through oversight that the executive branch is enforcing those laws and is otherwise carrying out its responsibilities in a manner consistent with the laws and the Constitution”
Last month, a senior Department of Justice (DOJ) official testified before the House of Representatives Judiciary Committee that the president is free to violate any laws until the Supreme Court rules otherwise. However, the U.S. Constitution gives Congress the sole authority to legislate and requires the president to "take care that the laws be faithfully executed."
A year earlier, a blue-ribbon American Bar Association task force composed of constitutional scholars, former presidential advisers, and legal and judicial experts urged Congress to adopt legislation enabling its members to seek court review of signing statements that assert the President’s right to ignore or not enforce laws passed by Congress and demanded that the President veto bills he feels are not constitutional. Since he took office in 2001, the president has vetoed only one bill -- a measure to expand health care for children of poor families.
Another Bush critic, the American Civil Liberties Union (ACLU), declared, “When Congress sends a law to the president for signature it is not asking for his comments. The Constitution doesn’t provide for the president to cherry pick which laws – or which parts of the laws – he will enforce. The Founding Fathers of our country designed a system that works when Congress writes the laws and the president implements them,” said the ACLU’s Caroline Fredrickson. “The president needs to respect the separation of powers,” she added.
Arguably, the most controversial of Bush’s Signing Statements rejected the so-called McCain Amendment in the Detainee Treatment Act of 2006, which categorically prohibits cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world.
In his Signing Statement, the President asserted that he was free to construe that provision “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.”
Bush’s Signing Statements cover not only the so-called war on terror, but also a wide array of bills passed by Congress, ranging from affirmative action programs to requirements of statistical compilations by executive agencies to establishing basic qualifications for executive appointees.
The use of Signing Statements, however, did not start with George W. Bush. In recent U.S. political history, they have been used by Presidents Ronald Reagan, George H. W. Bush, and Bill Clinton as a tool to express constitutional and other objections to legislation, influence judicial interpretation, and otherwise advance policy goals.
Earlier presidents, beginning with James Monroe, the nation’s fifth chief executive, have issued such statements. Monroe signed a bill mandating a reduction in the size of the army and prescribed the method by which the president should select military officers. But a month later, he issued a statement declaring that the president, not Congress, had the Constitutional authority to appoint military officers.
In 1830, President Andrew Jackson signed an appropriations bill providing for a road from Detroit to Chicago, but issued a statement insisting that the road was not to extend beyond Michigan.
President Abraham Lincoln wrote that he was signing one bill on the understanding that the bill and the joint resolution explaining it were "substantially one." He attached to his Signing Statement a draft veto message he had prepared before the joint resolution was adopted.
His successor, President Andrew Johnson, signed but protested an Army appropriations bill, claiming that one of its sections "in certain cases virtually deprives the President of his constitutional functions as Commander in Chief of the Army."
In 1876, when signing a river and harbor appropriations bill that included local appropriations, President Ulysses S. Grant issued a Signing Statement saying that "under no circumstances will I allow expenditures upon works not clearly national."
In 1909, President Theodore Roosevelt issued a Signing Statement proclaiming his intention to ignore a restriction on his power to establish volunteer commissions. In 1920, President Woodrow Wilson signed a merchant marine bill, but determined not to enforce a provision he found unconstitutional.
In 1941, President Franklin Roosevelt found a provision of the Lend-Lease bill “clearly unconstitutional," but signed the bill as a matter of diplomatic and political necessity. Ten years later, when President Harry S. Truman signed the General Appropriation Act of 1951, he issued a statement describing as unconstitutional a provision authorizing loans to Spain.
In 1959, President Dwight Eisenhower signed the Mutual Security Act, but made it clear in a Signing Statement that he was willing only to enforce the bill to the extent that it did not infringe on his definition of executive authority.
When President Lyndon B. Johnson signed a crime bill in 1968, he criticized as "vague and ambiguous" provisions dealing with Federal rules of evidence in criminal cases.
President Richard Nixon objected to a 1971 military authorization bill which set a date for withdrawal of U.S. forces from Indochina. He said the bill was, “without binding force or effect.”
President Gerald Ford objected to a provision of a 1976 Defense Appropriation that restricted the Executive's ability to obligate certain funds until it received approval from several Congressional committees. Ford said he could not "concur in this legislative encroachment," and that he would treat the restriction "as a complete nullity."
President Jimmy Carter issued several Signing Statements in 1980-81. The first of these related to a bill mandating the closing of certain consular posts. Carter objected that Congress "cannot mandate the establishment of consular relations at a time and place unacceptable to the President."
But it was not until the administration of Ronald Reagan that the nation saw a dramatic increase in the frequency of presidential Signing Statements. Reagan saw the statements as a strategic tool for molding and influencing the way legislation was interpreted by Executive agencies. In eight years as president, he issued statements objecting to 72 congressional provisions, a record at the time. His successor, George Herbert Walker Bush, topped that mark in only four years in the White House. Bush objected to 232 provisions. President Bill Clinton followed with 140 objections in eight years.
But, as noted by the ABA’s bipartisan task force, while the current president is not the first to use signing statements, “the frequency of signing statements that challenge laws has escalated substantially.”
From the inception of the Republic until 2000, presidents produced fewer than 600 signing. Since 2001, President Bush has objected on constitutional grounds to sections of more than 750 laws.
Prof. Peter Shane of Ohio State University law school believes the current Bush Administration is creating faux law. He told us, “The Bush Administration’s repeated utterance of its constitutional philosophy shapes executive branch behavior by solidifying allegiance to norms of hostility to external accountability. Like the torture memo or the rationalizations for warrantless NSA wiretapping of domestic telephone calls, the Bush 43 signing statements embody both a disregard for the institutional authorities of the other branches – especially Congress – and a disregard for the necessity to ground legal claims in plausible law. They are best understood as an attempt to invent law, and as an exploitation of Congress’s unwillingness, at least while in Republican hands, to allow the Administration’s more extreme theories of presidential authority to go unchallenged.”
When George W. Bush signed the 2008 National Defense Authorization Act into law last week, he again thumbed his nose at Congress by taking a second now-familiar step: He issued a “Signing Statement” – a declaration that effectively asserts his authority to ignore parts of the law he disagrees with.
His action brought harsh criticism from dozens of legal scholars and advocacy groups who point out that U.S. presidents have the authority under the Constitution to veto or approve acts of Congress – but not to modify them.
Bush's latest Signing Statement declares his right to ignore sections of the law establishing a commission to investigate U.S. contractor fraud in Iraq and Afghanistan, expanding whistleblower protections, requiring that U.S. intelligence agencies respond to congressional requests for documents, banning funding for permanent bases in Iraq, and prohibiting funding of any actions that exercise U.S. control over Iraq's oil revenues.
One Administration critic, United for Peace and Justice (UFPJ) -- the country's largest anti-war coalition with over 1,400 member groups – characterized Bush's action as “arrogant and unconstitutional” and called on Congress to convene hearings to impeach the president.
Bush’s use of Signing Statements has become one of the hallmarks of his Administration. The UFPJ charged that during the past seven years, the same kind of language used by Bush last week “has been the precursor to numerous violations of law by his administration, including sections of law banning the use of torture and banning the use of funds to construct permanent U.S. military bases in Iraq. The president has signed laws blocking funding for the construction of permanent bases in Iraq six times, but never stopped the construction.”
And, in a recent statement, The Constitution Project’s “Coalition to Defend Check and Balances” – a bipartisan group of legal scholars and former Republican and Democratic presidential advisors – declared: “To restore our system of checks and balances, Congress can, and must, exercise its responsibility as a separate and independent branch of government. Congress has a clear constitutional obligation to make the laws, and when it has made such laws, to ensure through oversight that the executive branch is enforcing those laws and is otherwise carrying out its responsibilities in a manner consistent with the laws and the Constitution”
Last month, a senior Department of Justice (DOJ) official testified before the House of Representatives Judiciary Committee that the president is free to violate any laws until the Supreme Court rules otherwise. However, the U.S. Constitution gives Congress the sole authority to legislate and requires the president to "take care that the laws be faithfully executed."
A year earlier, a blue-ribbon American Bar Association task force composed of constitutional scholars, former presidential advisers, and legal and judicial experts urged Congress to adopt legislation enabling its members to seek court review of signing statements that assert the President’s right to ignore or not enforce laws passed by Congress and demanded that the President veto bills he feels are not constitutional. Since he took office in 2001, the president has vetoed only one bill -- a measure to expand health care for children of poor families.
Another Bush critic, the American Civil Liberties Union (ACLU), declared, “When Congress sends a law to the president for signature it is not asking for his comments. The Constitution doesn’t provide for the president to cherry pick which laws – or which parts of the laws – he will enforce. The Founding Fathers of our country designed a system that works when Congress writes the laws and the president implements them,” said the ACLU’s Caroline Fredrickson. “The president needs to respect the separation of powers,” she added.
Arguably, the most controversial of Bush’s Signing Statements rejected the so-called McCain Amendment in the Detainee Treatment Act of 2006, which categorically prohibits cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world.
In his Signing Statement, the President asserted that he was free to construe that provision “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.”
Bush’s Signing Statements cover not only the so-called war on terror, but also a wide array of bills passed by Congress, ranging from affirmative action programs to requirements of statistical compilations by executive agencies to establishing basic qualifications for executive appointees.
The use of Signing Statements, however, did not start with George W. Bush. In recent U.S. political history, they have been used by Presidents Ronald Reagan, George H. W. Bush, and Bill Clinton as a tool to express constitutional and other objections to legislation, influence judicial interpretation, and otherwise advance policy goals.
Earlier presidents, beginning with James Monroe, the nation’s fifth chief executive, have issued such statements. Monroe signed a bill mandating a reduction in the size of the army and prescribed the method by which the president should select military officers. But a month later, he issued a statement declaring that the president, not Congress, had the Constitutional authority to appoint military officers.
In 1830, President Andrew Jackson signed an appropriations bill providing for a road from Detroit to Chicago, but issued a statement insisting that the road was not to extend beyond Michigan.
President Abraham Lincoln wrote that he was signing one bill on the understanding that the bill and the joint resolution explaining it were "substantially one." He attached to his Signing Statement a draft veto message he had prepared before the joint resolution was adopted.
His successor, President Andrew Johnson, signed but protested an Army appropriations bill, claiming that one of its sections "in certain cases virtually deprives the President of his constitutional functions as Commander in Chief of the Army."
In 1876, when signing a river and harbor appropriations bill that included local appropriations, President Ulysses S. Grant issued a Signing Statement saying that "under no circumstances will I allow expenditures upon works not clearly national."
In 1909, President Theodore Roosevelt issued a Signing Statement proclaiming his intention to ignore a restriction on his power to establish volunteer commissions. In 1920, President Woodrow Wilson signed a merchant marine bill, but determined not to enforce a provision he found unconstitutional.
In 1941, President Franklin Roosevelt found a provision of the Lend-Lease bill “clearly unconstitutional," but signed the bill as a matter of diplomatic and political necessity. Ten years later, when President Harry S. Truman signed the General Appropriation Act of 1951, he issued a statement describing as unconstitutional a provision authorizing loans to Spain.
In 1959, President Dwight Eisenhower signed the Mutual Security Act, but made it clear in a Signing Statement that he was willing only to enforce the bill to the extent that it did not infringe on his definition of executive authority.
When President Lyndon B. Johnson signed a crime bill in 1968, he criticized as "vague and ambiguous" provisions dealing with Federal rules of evidence in criminal cases.
President Richard Nixon objected to a 1971 military authorization bill which set a date for withdrawal of U.S. forces from Indochina. He said the bill was, “without binding force or effect.”
President Gerald Ford objected to a provision of a 1976 Defense Appropriation that restricted the Executive's ability to obligate certain funds until it received approval from several Congressional committees. Ford said he could not "concur in this legislative encroachment," and that he would treat the restriction "as a complete nullity."
President Jimmy Carter issued several Signing Statements in 1980-81. The first of these related to a bill mandating the closing of certain consular posts. Carter objected that Congress "cannot mandate the establishment of consular relations at a time and place unacceptable to the President."
But it was not until the administration of Ronald Reagan that the nation saw a dramatic increase in the frequency of presidential Signing Statements. Reagan saw the statements as a strategic tool for molding and influencing the way legislation was interpreted by Executive agencies. In eight years as president, he issued statements objecting to 72 congressional provisions, a record at the time. His successor, George Herbert Walker Bush, topped that mark in only four years in the White House. Bush objected to 232 provisions. President Bill Clinton followed with 140 objections in eight years.
But, as noted by the ABA’s bipartisan task force, while the current president is not the first to use signing statements, “the frequency of signing statements that challenge laws has escalated substantially.”
From the inception of the Republic until 2000, presidents produced fewer than 600 signing. Since 2001, President Bush has objected on constitutional grounds to sections of more than 750 laws.
Prof. Peter Shane of Ohio State University law school believes the current Bush Administration is creating faux law. He told us, “The Bush Administration’s repeated utterance of its constitutional philosophy shapes executive branch behavior by solidifying allegiance to norms of hostility to external accountability. Like the torture memo or the rationalizations for warrantless NSA wiretapping of domestic telephone calls, the Bush 43 signing statements embody both a disregard for the institutional authorities of the other branches – especially Congress – and a disregard for the necessity to ground legal claims in plausible law. They are best understood as an attempt to invent law, and as an exploitation of Congress’s unwillingness, at least while in Republican hands, to allow the Administration’s more extreme theories of presidential authority to go unchallenged.”
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