By William Fisher
It has gone largely unreported, but President Bush’s “stay the course” mantra has apparently taken a 180-degree turn.
I offer in evidence this recent quote from Mr. Bush:
"We believe that the more we inform our American citizens, the better our government will be. We believe that the more transparency there is in the system, the better the system functions on behalf of the American people."
The President’s remarks came at a signing ceremony for the Federal Funding
Accountability and Transparency Act, which will establish a searchable online database of federal grants and contracts.
As reported by Steve Aftergood’s Project on Government Secrecy, a White House fact sheet said the new law "is part of President Bush's ongoing commitment to improve transparency, accountability, and management across the Federal Government."
OK, so maybe it wasn’t about Iraq or Afghanistan or the Global War on Terror. And maybe the timing of its revelation had just a tad to do with the mid-term elections. But it has to be seen as some kind of major epiphany anyway.
The reason is that this President has presided over arguably the most secretive government in U.S. history.
Consider the findings of a report issued a while ago by Congressman Henry Waxman of California, one of the Democrats effectively neutered by the current House majority. Waxman’s report found “a systematic effort by the Bush Administration to limit the application of the laws that promote open government and accountability…the Bush Administration has sought to curtail public access to information while expanding the powers of government to operate in secret.”
The report alleged that both the American people and the U.S. Congress are being denied access to millions of pages of documents to which they are entitled under law. It added, “The actions of the Bush Administration have resulted in an extraordinary expansion of government secrecy. External watchdogs, including Congress, the media, and nongovernmental organizations, have consistently been hindered in their ability to monitor government activities.”
The Report found that the Administration has systematically withheld “a vast array“ of records from Congress. Subjects have ranged “from simple census data and routine agency correspondence to presidential and vice presidential records.”
Henry Waxman has good reason to know. Congress itself, Waxman’s report says, has been one of the main victims of our secret government. “On over 100 separate occasions, the Administration has refused to answer the inquiries of, or provide the information requested” by Congressman Waxman in his role as the senior Democrat on the House Committee on Government Reform. The information the Administration has refused to provide includes “documents requested by the ranking members of eight House Committees relating to the prison abuses at Abu Ghraib and elsewhere”, the Report says.
Well, maybe Mr. Waxman and the rest of us need to cut the President some slack. After all, his epiphany only happened a few weeks ago.
Now, The Decider-in-Chief has to get it implemented, and that’s going to take a bit of time. Even for a chief executive with a Harvard MBA, it’s not going to be a quick or easy job.
Because, as of today, the government continues to classify more documents about more different subjects than any of its predecessors ever dreamed of. And it spends billions in taxpayer funds to do so.
Still, the President’s epiphany has to come as welcome news to all the folks who have spent the past six frustrating years trying to make the Freedom of Information Act work in something resembling a timely manner.
Take heart, ACLU, Associated Press, and countless other soldiers in what has become an open-the-government cottage industry.
Given the president’s management skills, and his authority as Decider, maybe it won’t be too long before the government folks whose salaries we pay stop spinning the truth and let us all in on both our successes and our failures.
Maybe, in the future, it won’t take an army of meddlers to learn what we need to know about GITMO, secret CIA prisons, domestic eavesdropping, faux science, rolling back environmental protections, interoperable radios, progress in our Global War On Terrorism, and a host of other issues.
And -- who knows? -- it might just signal the end of whistleblowing!
Monday, October 23, 2006
Wednesday, October 11, 2006
THAT’S A JOKE, SON
By William Fisher
When I was a kid growing up in the 1940s, my favorite radio program was The Fred Allen Show, hosted by one of the funniest comics who ever lived. A key chararacter on this weekly show was Senator Beauregard Claghorn. Portrayed by actor Kenny Delmar, Claghorn became the archetypal caricature of a Southern politician – blustering, fumbling, repetitive, endlessly spouting bad puns.
Senator Beauregard Claghorn was obsessed was with The South. He proudly told his audiences he refused to wear a "Union suit" and claimed to drink only out of Dixie cups. When asked a political question by host Allen, Claghorn would respond with a rapid stream of utterly incoherent hot air. After a quip, the senator would laugh uproariously, then deliver one of his favorite catchphrases: "That's a joke, son!"
Well, sadly, old Beauregard is long gone, but arguably his shoes are being well filled by another Senatorial caricature, Congressman Duncan Hunter of California.
In the fine art of (unintended) black comedy, Hunter has few equals in a House filled with cartoon congressmen and women.
Take his performance some months ago in the House pressroom. Hunter, the powerful chairman of the House Armed Services Committee, had just returned from a Pentagon-sponsored tour of Guantanamo Bay, and he was eager to share his observations with the media.
Far from reporting any detainee abuse, Hunter was sounding more and more like the PR man for the new Club Gitmo on the Caribbean, in particular touting the haute cuisine meticulously prepared for the suspected terrorists.
Someone from his staff set a small table next to the pressroom lectern. On the table a number of appetizing-looking dishes were set out to help Mr. Hunter demonstrate his point. Prisoners, he proclaimed, had a daily choice of two entrees, beautifully prepared fresh fish or succulent chicken. Then came a succession of fresh vegetables, followed by a yummy-looking dessert.
The prisoners, he commented, were eating better than their guards! Whereupon, he ate the lunch.
No matter that GITMO detainees were being held indefinitely as enemy combatants, even though many had already been found to be “no longer a threat” to US security or “of no further intelligence value.” No matter that many were scheduled for release, yet remained behind barbed wire. No matter than not a single one of these detainees had been tried for any crime. No matter that their right to appeal their status was in the hands of the very military folks who put them there in the first place.
Gitmo was good!
The San Diego congressman’s stellar performance was in fact a microcosm of his record since he was elected in 1981. Recent example: When Senators John Warner, John McCain and Lindsey Graham announced their “compromise” with the White House on new detainee treatment legislation, Hunter denounced it as too soft on terrorists. He relented under White House cajoling, since the President got almost everything he asked for, and then some.
Hunter, a former member of the US Army airborne, is a warrior, and his campaign contributors know it. These include such major defense contractors as Northrup Grumman, Boeing, and General Dynamics, to mention only a few.
You will recall that when Rep. Duke Cunningham resigned from Congress last year after pleaded guilty to bribery charges, the alleged coconspirators who bribed Cunningham included two San Diego-based defense contractors, Brent Wilkes and Mitchell Wade. Well, Hunter also had ties to Brent Wilkes, the owner of ADCS, Inc. and Perfect Wave Technologies.
USA today reported that since 1994 Hunter received $40,700 from Wilkes and his companies. In 1997 Hunter and Cunningham worked to extend a multi-million dollar earmark for Wilkes' ADCS to perform document conversion tasks for the Pentagon despite protests from the Defense Department, which claimed that ADCS' services were not needed and a waste of resources. Senator John McCain denounced the House Armed Services Committee for wasting resources in the Defense appropriations bill.
Hunter is a lover of earmarks. One of these, worth $9.7 million, was for ADCS to convert maps of Panama into electronic documents. Hunter and Cunningham both warned, at the time, that China was planning on invading Panama and that America should have electronic documentation of the buildings in the country. They used this premise to justify their inclusion of the $9.7 million earmark that the Pentagon itself did not want in the appropriations bill.
In 2003, Wilkes threw a gala in honor of Hunter called 'Salute to Our Heroes'.
But it doesn’t stop there. In June 2006, Public Citizen reported that Hunter received $11,750 from lobbyist Van D. Hipp Jr., chairman of American Defense International. Hipp's firm represents more than 100 organizations in 11 countries on "government affairs" strategies. Hipp, a former deputy assistant secretary of the Army, was sentenced to five years' probation and three months' house arrest for accepting illegal campaign gifts during a failed 1994 congressional campaign. He also was fined $5,000 and ordered to perform 200 hours of community service.
Further, Hunter’s 2004 financial disclosure form revealed co-ownership of a rural Virginia cabin with former Rep. Pete Geren (D-Texas). Following his stint in Congress, Geren served as an aide to Defense Secretary Donald Rumsfeld at the Pentagon from 2001-2005. According to USA Today, one of his primary responsibilities was "keeping Congress off Rumsfeld’s back" during the Abu Ghraib detainee controversy. So, as Chairman of the House Committee on Armed Services, Hunter dutifully discouraged any congressional investigation into Abu Ghraib.
Despite their affiliation, Hunter’s financial disclosure makes no mention of Geren’s Defense Department affiliation. In addition, Geren’s disclosures simply refer to the "Hunter/Geren partnership," never referring to the fact that "Hunter" is the chairman of the House Committee on Armed Services.
According to POGO, the Project on Government Oversight, Hunter’s top corporate campaign contributor, San Diego-based defense contractor Titan Corporation, suffered from the publicity of the Abu Ghraib scandal. Titan Corp. served as interrogators at the prison, and was subsequently implicated in the mistreatment allegations that followed. Despite this, and the fact that Titan pled guilty to three criminal counts of bribery in March 2005, the Defense Department waived its right to disbar Titan from any contracts. This chain of events has led to questions about Hunter's ties to the Defense Department.
As reported in a May 29, 2006 Inside the Navy story, Titan Corp. has received several government earmarks beyond what the Pentagon requested for two Navy projects: the experimental Sea Fighter LCS (X) craft and the Affordable Weapons System (AWS). According to the report, there are a number of other missile concepts that provide similar solutions as the LCS and AWS, but at a lower cost. Both projects have been championed by Hunter, and are contracted by Titan Corp.
So Senator Claghorn can continue to rest in peace, knowing that even if he’s lost his title as Congress’s premiere caricature, at least he has a worthy successor.
The only thing missing from Duncan Hunter’s shtick is the tagline, “That’s a joke son.”
That OK. Because it’s no joke.
When I was a kid growing up in the 1940s, my favorite radio program was The Fred Allen Show, hosted by one of the funniest comics who ever lived. A key chararacter on this weekly show was Senator Beauregard Claghorn. Portrayed by actor Kenny Delmar, Claghorn became the archetypal caricature of a Southern politician – blustering, fumbling, repetitive, endlessly spouting bad puns.
Senator Beauregard Claghorn was obsessed was with The South. He proudly told his audiences he refused to wear a "Union suit" and claimed to drink only out of Dixie cups. When asked a political question by host Allen, Claghorn would respond with a rapid stream of utterly incoherent hot air. After a quip, the senator would laugh uproariously, then deliver one of his favorite catchphrases: "That's a joke, son!"
Well, sadly, old Beauregard is long gone, but arguably his shoes are being well filled by another Senatorial caricature, Congressman Duncan Hunter of California.
In the fine art of (unintended) black comedy, Hunter has few equals in a House filled with cartoon congressmen and women.
Take his performance some months ago in the House pressroom. Hunter, the powerful chairman of the House Armed Services Committee, had just returned from a Pentagon-sponsored tour of Guantanamo Bay, and he was eager to share his observations with the media.
Far from reporting any detainee abuse, Hunter was sounding more and more like the PR man for the new Club Gitmo on the Caribbean, in particular touting the haute cuisine meticulously prepared for the suspected terrorists.
Someone from his staff set a small table next to the pressroom lectern. On the table a number of appetizing-looking dishes were set out to help Mr. Hunter demonstrate his point. Prisoners, he proclaimed, had a daily choice of two entrees, beautifully prepared fresh fish or succulent chicken. Then came a succession of fresh vegetables, followed by a yummy-looking dessert.
The prisoners, he commented, were eating better than their guards! Whereupon, he ate the lunch.
No matter that GITMO detainees were being held indefinitely as enemy combatants, even though many had already been found to be “no longer a threat” to US security or “of no further intelligence value.” No matter that many were scheduled for release, yet remained behind barbed wire. No matter than not a single one of these detainees had been tried for any crime. No matter that their right to appeal their status was in the hands of the very military folks who put them there in the first place.
Gitmo was good!
The San Diego congressman’s stellar performance was in fact a microcosm of his record since he was elected in 1981. Recent example: When Senators John Warner, John McCain and Lindsey Graham announced their “compromise” with the White House on new detainee treatment legislation, Hunter denounced it as too soft on terrorists. He relented under White House cajoling, since the President got almost everything he asked for, and then some.
Hunter, a former member of the US Army airborne, is a warrior, and his campaign contributors know it. These include such major defense contractors as Northrup Grumman, Boeing, and General Dynamics, to mention only a few.
You will recall that when Rep. Duke Cunningham resigned from Congress last year after pleaded guilty to bribery charges, the alleged coconspirators who bribed Cunningham included two San Diego-based defense contractors, Brent Wilkes and Mitchell Wade. Well, Hunter also had ties to Brent Wilkes, the owner of ADCS, Inc. and Perfect Wave Technologies.
USA today reported that since 1994 Hunter received $40,700 from Wilkes and his companies. In 1997 Hunter and Cunningham worked to extend a multi-million dollar earmark for Wilkes' ADCS to perform document conversion tasks for the Pentagon despite protests from the Defense Department, which claimed that ADCS' services were not needed and a waste of resources. Senator John McCain denounced the House Armed Services Committee for wasting resources in the Defense appropriations bill.
Hunter is a lover of earmarks. One of these, worth $9.7 million, was for ADCS to convert maps of Panama into electronic documents. Hunter and Cunningham both warned, at the time, that China was planning on invading Panama and that America should have electronic documentation of the buildings in the country. They used this premise to justify their inclusion of the $9.7 million earmark that the Pentagon itself did not want in the appropriations bill.
In 2003, Wilkes threw a gala in honor of Hunter called 'Salute to Our Heroes'.
But it doesn’t stop there. In June 2006, Public Citizen reported that Hunter received $11,750 from lobbyist Van D. Hipp Jr., chairman of American Defense International. Hipp's firm represents more than 100 organizations in 11 countries on "government affairs" strategies. Hipp, a former deputy assistant secretary of the Army, was sentenced to five years' probation and three months' house arrest for accepting illegal campaign gifts during a failed 1994 congressional campaign. He also was fined $5,000 and ordered to perform 200 hours of community service.
Further, Hunter’s 2004 financial disclosure form revealed co-ownership of a rural Virginia cabin with former Rep. Pete Geren (D-Texas). Following his stint in Congress, Geren served as an aide to Defense Secretary Donald Rumsfeld at the Pentagon from 2001-2005. According to USA Today, one of his primary responsibilities was "keeping Congress off Rumsfeld’s back" during the Abu Ghraib detainee controversy. So, as Chairman of the House Committee on Armed Services, Hunter dutifully discouraged any congressional investigation into Abu Ghraib.
Despite their affiliation, Hunter’s financial disclosure makes no mention of Geren’s Defense Department affiliation. In addition, Geren’s disclosures simply refer to the "Hunter/Geren partnership," never referring to the fact that "Hunter" is the chairman of the House Committee on Armed Services.
According to POGO, the Project on Government Oversight, Hunter’s top corporate campaign contributor, San Diego-based defense contractor Titan Corporation, suffered from the publicity of the Abu Ghraib scandal. Titan Corp. served as interrogators at the prison, and was subsequently implicated in the mistreatment allegations that followed. Despite this, and the fact that Titan pled guilty to three criminal counts of bribery in March 2005, the Defense Department waived its right to disbar Titan from any contracts. This chain of events has led to questions about Hunter's ties to the Defense Department.
As reported in a May 29, 2006 Inside the Navy story, Titan Corp. has received several government earmarks beyond what the Pentagon requested for two Navy projects: the experimental Sea Fighter LCS (X) craft and the Affordable Weapons System (AWS). According to the report, there are a number of other missile concepts that provide similar solutions as the LCS and AWS, but at a lower cost. Both projects have been championed by Hunter, and are contracted by Titan Corp.
So Senator Claghorn can continue to rest in peace, knowing that even if he’s lost his title as Congress’s premiere caricature, at least he has a worthy successor.
The only thing missing from Duncan Hunter’s shtick is the tagline, “That’s a joke son.”
That OK. Because it’s no joke.
SWIFT-BOATED -- AGAIN
By William Fisher
This has to be the non-surprise of the week: Lt. Cmdr. Charles Swift, the Navy lawyer who led the recent successful Supreme Court challenge of the Bush administration's military tribunals for Guantanamo detainees, has been passed over for promotion to full Commander and will have to leave the military.
The military claims there is no connection between its decision and Swift’s defense of Salim Ahmed Hamdan, a Yemeni and alleged al-Qaida member who was accused of being Osama bin Laden's driver. Yet the Navy lost no time in exacting retribution. Its decision on Swift came about two weeks after the Supreme Court sided with him and against the White House.
And it was made despite a report from his supervisor saying he served with distinction. "Charlie has obviously done an exceptional job, a really extraordinary job," said Marine Col. Dwight Sullivan, the Pentagon's chief defense counsel for Military Commissions. Sullivan added it was "quite a coincidence" that Swift was passed over for a promotion "within two weeks of the Supreme Court opinion."
A coincidence indeed!
The 44-year-old lawyer will be forced to retire from the armed services in March or April under the military's "up or out" promotion system. Swift said he would have defended Hamdan even if he had known it would cut short his Navy career. He added that he plans to continue defending Hamdan as a civilian.
The 36-year-old Hamdan was captured along the border between Pakistan and Afghanistan while fleeing the U.S. invasion that was a response to the Sept. 11, 2001 terrorist attacks. Hamdan has acknowledged that bin Laden paid him $200 a month as his driver on a Kandahar farm, but he says he never joined al-Qaida or engaged in military fighting.
With Swift’s help, Hamdan turned to civilian courts to challenge the constitutionality of his war-crimes trial, a case that eventually led the Supreme Court to rule that President Bush had outstripped his authority when he created ad hoc military tribunals for Guantanamo Bay prisoners.
The Pentagon sought to redesign the format of the trials, but substituted a system similar to the one The Supreme Court struck down. Thus, a new court challenge is likely.
Legislation passed by Congress last month has meanwhile taken away the right of Guantanamo detainees to file traditional habeas corpus petitions, meaning that Swift's first hurdle as a civilian will be to argue that he has the right to represent Hamdan in federal court. Swift says the legislation's rules for the commission trials are "better by a degree" than the previous guidelines, but still leave open the possibility that a defendant could be convicted by unreliable evidence obtained by coercion.
He believes that military judges would have too much discretion to permit tainted evidence. "It's absolutely dependent on individuals rather than on clear rules of law," he says.
Washington, D.C., attorney Eugene Fidell, president of the National Institute of Military Justice, said Swift was "a no-brainer for promotion."
He added that “Swift joins many other distinguished Navy officers over the years who have seen their careers end prematurely…He brought real credit to the Navy. It's too bad that it's unrequited love."
Swift never had a choice in representing Hamdan. He was ordered to represent him, but says that was only “for purposes of obtaining a guilty plea.” Instead, he took the case to a US Federal Court, which ruled that Hamdan had not received a fair hearing.
But Swift became a clear target for the Pentagon by testifying before Congressional Committees and speaking out in many other public settings about the Hamdan case.
That case has been bouncing around the US justice system for several years, beginning in 2004, when the DOD formally referred charges against the Yemeni national, one of six Guantánamo detainees who were designated by President Bush in July 2003 as subject to trial by military commission under the President’s Order of November 13, 2001. He is formally charged with conspiracy to attack civilians, attack civilian objects, murder, destruction of property, and terrorism.
Documents unsealed two years ago revealed allegations that Hamdan was beaten, threatened, and kept in isolation for upwards of eight months. A military commission preliminary hearing began the week of August 23, 2004.
In September 2004, the petition was re-filed in the federal district court for the District of Columbia, and, in November 2004, that court found the military commission unlawful because the process violated the laws of war and military law, and stayed the commission.
In July 2005 the Court of Appeals for the District of Columbia reversed the district court and upheld the commission as lawful. Concurring with that decision was then Judge John Roberts, who was later confirmed as Chief Justice of the Supreme Court.
Hamdan’s lawyers appealed the ruling, and in November 2005 the Supreme Court agreed to hear the case.
In January 2006, the government filed a motion for the Supreme Court to dismiss the case on the ground that the Detainee Treatment Act of 2005 (the Graham/Levin amendment) divested Hamdan of the right to seek habeas corpus in a federal court.
The Supreme Court – with Chief Justice Roberts not participating -- found otherwise. It ruled 5-3 that the president had no inherent authority to establish military commissions without Congressional authorization. The key issue was separation of powers as mandated by the US Constitution.
That sparked a huge battle between Congress and the White House, as well as among Senate Republicans. Most of these, joined by some Democrats who face tight reelection races in November, would have been content to rubber-stamp the “substitute” legislation proposed by the White House. But three so-called “maverick” Senators refused to go along. The “compromise” reached by the three – Senators John McCain, Lindsey Graham and John Warner -- was hailed by some as a significant congressional victory over the Executive Branch. But the compromise gave the president virtually everything he asked for.
Which means we aren’t anywhere close to having heard the last of Mr. Hamdan – or Lt. Commander Swift.
During the Senate’s debate over its new military commission legislation, as well as its deliberations on last year’s Detainee Treatment Act, we have been treated to endless tributes to the military’s JAG Corps and its competence and fairness.
Many of these paeans of praise have come from Senator Lindsay Graham, a South Carolina conservative who has been a military lawyer and judge for many years and who holds the rank of Colonel in the Air Force Reserve.
Well, it would be gratifying if Senator Graham now put his clout where his mouth is and pressured the Pentagon to reverse the Swift decision. From all Graham has said over the past several years, the Swift-Boating of this courageous young lawyer compromises the very soul of the JAG Corps of which Graham is so proud.
He should be seriously concerned about the chilling effect that the booting of Lt. Commander Swift will have on military lawyers who are ordered to mount a vigorous defense of their clients – and who get dumped as their reward.
Until that happens, the moral of the Swift story has to be that no good deed will go unpunished.
This has to be the non-surprise of the week: Lt. Cmdr. Charles Swift, the Navy lawyer who led the recent successful Supreme Court challenge of the Bush administration's military tribunals for Guantanamo detainees, has been passed over for promotion to full Commander and will have to leave the military.
The military claims there is no connection between its decision and Swift’s defense of Salim Ahmed Hamdan, a Yemeni and alleged al-Qaida member who was accused of being Osama bin Laden's driver. Yet the Navy lost no time in exacting retribution. Its decision on Swift came about two weeks after the Supreme Court sided with him and against the White House.
And it was made despite a report from his supervisor saying he served with distinction. "Charlie has obviously done an exceptional job, a really extraordinary job," said Marine Col. Dwight Sullivan, the Pentagon's chief defense counsel for Military Commissions. Sullivan added it was "quite a coincidence" that Swift was passed over for a promotion "within two weeks of the Supreme Court opinion."
A coincidence indeed!
The 44-year-old lawyer will be forced to retire from the armed services in March or April under the military's "up or out" promotion system. Swift said he would have defended Hamdan even if he had known it would cut short his Navy career. He added that he plans to continue defending Hamdan as a civilian.
The 36-year-old Hamdan was captured along the border between Pakistan and Afghanistan while fleeing the U.S. invasion that was a response to the Sept. 11, 2001 terrorist attacks. Hamdan has acknowledged that bin Laden paid him $200 a month as his driver on a Kandahar farm, but he says he never joined al-Qaida or engaged in military fighting.
With Swift’s help, Hamdan turned to civilian courts to challenge the constitutionality of his war-crimes trial, a case that eventually led the Supreme Court to rule that President Bush had outstripped his authority when he created ad hoc military tribunals for Guantanamo Bay prisoners.
The Pentagon sought to redesign the format of the trials, but substituted a system similar to the one The Supreme Court struck down. Thus, a new court challenge is likely.
Legislation passed by Congress last month has meanwhile taken away the right of Guantanamo detainees to file traditional habeas corpus petitions, meaning that Swift's first hurdle as a civilian will be to argue that he has the right to represent Hamdan in federal court. Swift says the legislation's rules for the commission trials are "better by a degree" than the previous guidelines, but still leave open the possibility that a defendant could be convicted by unreliable evidence obtained by coercion.
He believes that military judges would have too much discretion to permit tainted evidence. "It's absolutely dependent on individuals rather than on clear rules of law," he says.
Washington, D.C., attorney Eugene Fidell, president of the National Institute of Military Justice, said Swift was "a no-brainer for promotion."
He added that “Swift joins many other distinguished Navy officers over the years who have seen their careers end prematurely…He brought real credit to the Navy. It's too bad that it's unrequited love."
Swift never had a choice in representing Hamdan. He was ordered to represent him, but says that was only “for purposes of obtaining a guilty plea.” Instead, he took the case to a US Federal Court, which ruled that Hamdan had not received a fair hearing.
But Swift became a clear target for the Pentagon by testifying before Congressional Committees and speaking out in many other public settings about the Hamdan case.
That case has been bouncing around the US justice system for several years, beginning in 2004, when the DOD formally referred charges against the Yemeni national, one of six Guantánamo detainees who were designated by President Bush in July 2003 as subject to trial by military commission under the President’s Order of November 13, 2001. He is formally charged with conspiracy to attack civilians, attack civilian objects, murder, destruction of property, and terrorism.
Documents unsealed two years ago revealed allegations that Hamdan was beaten, threatened, and kept in isolation for upwards of eight months. A military commission preliminary hearing began the week of August 23, 2004.
In September 2004, the petition was re-filed in the federal district court for the District of Columbia, and, in November 2004, that court found the military commission unlawful because the process violated the laws of war and military law, and stayed the commission.
In July 2005 the Court of Appeals for the District of Columbia reversed the district court and upheld the commission as lawful. Concurring with that decision was then Judge John Roberts, who was later confirmed as Chief Justice of the Supreme Court.
Hamdan’s lawyers appealed the ruling, and in November 2005 the Supreme Court agreed to hear the case.
In January 2006, the government filed a motion for the Supreme Court to dismiss the case on the ground that the Detainee Treatment Act of 2005 (the Graham/Levin amendment) divested Hamdan of the right to seek habeas corpus in a federal court.
The Supreme Court – with Chief Justice Roberts not participating -- found otherwise. It ruled 5-3 that the president had no inherent authority to establish military commissions without Congressional authorization. The key issue was separation of powers as mandated by the US Constitution.
That sparked a huge battle between Congress and the White House, as well as among Senate Republicans. Most of these, joined by some Democrats who face tight reelection races in November, would have been content to rubber-stamp the “substitute” legislation proposed by the White House. But three so-called “maverick” Senators refused to go along. The “compromise” reached by the three – Senators John McCain, Lindsey Graham and John Warner -- was hailed by some as a significant congressional victory over the Executive Branch. But the compromise gave the president virtually everything he asked for.
Which means we aren’t anywhere close to having heard the last of Mr. Hamdan – or Lt. Commander Swift.
During the Senate’s debate over its new military commission legislation, as well as its deliberations on last year’s Detainee Treatment Act, we have been treated to endless tributes to the military’s JAG Corps and its competence and fairness.
Many of these paeans of praise have come from Senator Lindsay Graham, a South Carolina conservative who has been a military lawyer and judge for many years and who holds the rank of Colonel in the Air Force Reserve.
Well, it would be gratifying if Senator Graham now put his clout where his mouth is and pressured the Pentagon to reverse the Swift decision. From all Graham has said over the past several years, the Swift-Boating of this courageous young lawyer compromises the very soul of the JAG Corps of which Graham is so proud.
He should be seriously concerned about the chilling effect that the booting of Lt. Commander Swift will have on military lawyers who are ordered to mount a vigorous defense of their clients – and who get dumped as their reward.
Until that happens, the moral of the Swift story has to be that no good deed will go unpunished.
Friday, September 29, 2006
LET’S HEAR IT FOR THE ‘MAVERICKS’!
By William Fisher
Ever since the Supreme Court ruled in Hamdan v. Rumsfeld that the president of the United States is not a king, our media has been obsessed with the ‘rebellion’ of three ‘maverick’ Republican senators who said they refused to accept the White House version of a new law governing how we treat and detain alleged terrorists.
Journalists had a ball, writing endlessly about these three brave guys who had the courage to break with the president and push back against the White House to “preserve the moral high ground” for the United States. Common Article 3 of the Geneva Conventions would be sacrosanct. People held in US detention would not be tortured. They would be afforded fair trials and the right to appeal if convicted. They would be able to go to a real court to challenge the basis of their detention. They would have the right to see the evidence the government had against them. Evidence obtained by coercion would be inadmissible. The president would no longer be able to act unilaterally to consign the accused to a never-ending legal limbo by declaring them enemy combatants who would never be charged or tried, just held until the end of this ‘long war’ on terror.
Following Hamdan, these and many similar issues would require Congressional authorization. So the Administration sent a bill to The Hill that gave our legislators the extraordinary opportunity to pass a law authorizing virtually everything the Supreme Court said the president couldn’t do on his own.
The ‘mavericks’ said they weren’t buying it. This was big news, considering who wasn’t buying. First there was Mr. Establishment himself, the courtly chairman of the Senate Armed Services Committee, Senator John Warner of Virginia. Then there was the ‘fiercely independent’ Senator John McCain of Arizona, a leading presidential hopeful whose resume, including years as a P.O.W. in the Vietnam War, makes him the quintessential American hero. Finally, there was Senator Lindsey Graham of South Carolina, an Air Force Colonel who has spent some 20 years as a military lawyer and judge, a JAG.
Their negotiations with the White House were bolstered by such luminaries as soldier-statesman Colin Powell, who wrote that he feared American treatment of detainees threatened to undermine America’s position of moral leadership. The commentariat bit its fingernails. The media continued to scribble and vent.
So what happened? On Thursday, September 28, 2006, we found out. The ‘mavericks’ caved. They crafted a bill that gave the president virtually everything he asked for. And a large majority of House and Senate members, including some Democrats, caved in lockstep, their eyes transfixed with fear on the upcoming mid-term elections and the threat of being labeled ‘soft on terror.’
As summarized by The Washington Post, these are a few items contained in the bill the president will likely sign into law next week:
Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign
citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.
The Geneva Conventions: The bill would repudiate a half-century of international
precedent by allowing Mr. Bush to decide on his own what abusive interrogation
methods he considered permissible. And his decision could stay secret — there’s
no requirement that this list be published.
Habeas Corpus: Detainees in US military prisons would lose the basic right to
challenge their imprisonment.
Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and
bar legal actions based on the Geneva Conventions, directly or indirectly. All
Mr. Bush would have to do to lock anyone up forever is to declare him an illegal
combatant and not have a trial.
Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant.
Secret Evidence: American standards of justice prohibit evidence and testimony
that is kept secret from the defendant, whether the accused is a corporate
executive or a mass murderer. But the bill…seems to weaken protections against such evidence.
Offenses: The definition of torture is unacceptably narrow, a virtual reprise of
the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced
activity, and not other forms of nonconsensual sex. The bill would effectively
eliminate the idea of rape as torture.
But here’s arguably the most cynical provision of the bill. While it would bar military commissions from considering testimony obtained through interrogation techniques that involve "cruel, unusual or inhumane treatment or punishment," this bar would be retroactive only to Dec. 30, 2005 -- when Congress
adopted the Detainee Treatment Act -- to protect CIA operatives from possible
prosecution over interrogation tactics used before that date.
So much for the ‘rebels’ pushing back against the White House. Messrs. Warner, Graham, and McCain deserve the nation’s thanks. Thanks, Mavericks!
Despite the overwhelmingly depressing outcome of the debate on the Senate floor Thursday, there were a few heroes, albeit unsuccessful heroes. One of them was the Republican chairman of the Senate Judiciary Committee, Arlen Specter of Pennsylvania, whose civil yet impassioned plea to strip the bill of its anti-habeas corpus provision may one day join Calhoun, Clay and Webster on the list of the Senate’s greatest orations.
Specter, perhaps best known for presiding over hearings for Supreme Court nominees, was joined by the equally impassioned Vermont Democrat, Senator Patrick Leahy – whose speech was more predictable but no less eloquent. Lamentably, they both lost.
Our once-rockstar Secretary of Defense, Donald Rumsfeld, keeps referring to the detainees at Guantanamo Bay as “the worst of the worst.” But five years after 9/11, none of these worst has been tried, and the Bush Administration appears to have little interest in trying them. Except for the 14 recently moved to GITMO from the CIA’s secret prisons. And it remains unclear whether these 14 could ever be tried, given the CIA’s “aggressive” interrogation methods.
The Bush Administration’s disinterest in trying the other 4-500 prisoners at GITMO shouldn’t surprise us. A substantial number of them were captured because they were in the wrong place at the wrong time, or were sold to us for bounties by Afghan warlords, or have been classified by the Pentagon as innocent of any terror-related crime, but continue to be held nevertheless.
I have yet to meet – either in the US or abroad – a single person who doesn’t want the perpetrators or 9/11 and other terrorist crimes brought to justice. But I have heard from lots of Americans who don’t seem to care much about the fairness of the process for trying and punishing them.
That’s not surprising. We have every right to be angry with those who kill our people. But too many Americans are also historically challenged. They know nothing about our Alien and Sedition Acts, Lincoln’s suspension of Habeas Corpus, Woodrow Wilson’s espionage acts, the “red raids” of Attorney General Mitchell Palmer, Franklin Roosevelt’s internment of Japanese-Americans, the rantings of Senator Joe McCarthy, or any of the other sadder chapters in our country’s administration of justice.
For most of these egregious lapses, it has been our Supreme Court that eventually righted the ship of state. Today is no different.
If there is a light at the end of President Bush’s tunnel, it will be the Supreme Court that flips the switch. Sooner or later, the law the president signs next week will turn up on the doorstep of the Supremes.
Given the ideological makeup of the current court, the light may be faint. But it’s all we have.
Ever since the Supreme Court ruled in Hamdan v. Rumsfeld that the president of the United States is not a king, our media has been obsessed with the ‘rebellion’ of three ‘maverick’ Republican senators who said they refused to accept the White House version of a new law governing how we treat and detain alleged terrorists.
Journalists had a ball, writing endlessly about these three brave guys who had the courage to break with the president and push back against the White House to “preserve the moral high ground” for the United States. Common Article 3 of the Geneva Conventions would be sacrosanct. People held in US detention would not be tortured. They would be afforded fair trials and the right to appeal if convicted. They would be able to go to a real court to challenge the basis of their detention. They would have the right to see the evidence the government had against them. Evidence obtained by coercion would be inadmissible. The president would no longer be able to act unilaterally to consign the accused to a never-ending legal limbo by declaring them enemy combatants who would never be charged or tried, just held until the end of this ‘long war’ on terror.
Following Hamdan, these and many similar issues would require Congressional authorization. So the Administration sent a bill to The Hill that gave our legislators the extraordinary opportunity to pass a law authorizing virtually everything the Supreme Court said the president couldn’t do on his own.
The ‘mavericks’ said they weren’t buying it. This was big news, considering who wasn’t buying. First there was Mr. Establishment himself, the courtly chairman of the Senate Armed Services Committee, Senator John Warner of Virginia. Then there was the ‘fiercely independent’ Senator John McCain of Arizona, a leading presidential hopeful whose resume, including years as a P.O.W. in the Vietnam War, makes him the quintessential American hero. Finally, there was Senator Lindsey Graham of South Carolina, an Air Force Colonel who has spent some 20 years as a military lawyer and judge, a JAG.
Their negotiations with the White House were bolstered by such luminaries as soldier-statesman Colin Powell, who wrote that he feared American treatment of detainees threatened to undermine America’s position of moral leadership. The commentariat bit its fingernails. The media continued to scribble and vent.
So what happened? On Thursday, September 28, 2006, we found out. The ‘mavericks’ caved. They crafted a bill that gave the president virtually everything he asked for. And a large majority of House and Senate members, including some Democrats, caved in lockstep, their eyes transfixed with fear on the upcoming mid-term elections and the threat of being labeled ‘soft on terror.’
As summarized by The Washington Post, these are a few items contained in the bill the president will likely sign into law next week:
Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign
citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.
The Geneva Conventions: The bill would repudiate a half-century of international
precedent by allowing Mr. Bush to decide on his own what abusive interrogation
methods he considered permissible. And his decision could stay secret — there’s
no requirement that this list be published.
Habeas Corpus: Detainees in US military prisons would lose the basic right to
challenge their imprisonment.
Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and
bar legal actions based on the Geneva Conventions, directly or indirectly. All
Mr. Bush would have to do to lock anyone up forever is to declare him an illegal
combatant and not have a trial.
Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant.
Secret Evidence: American standards of justice prohibit evidence and testimony
that is kept secret from the defendant, whether the accused is a corporate
executive or a mass murderer. But the bill…seems to weaken protections against such evidence.
Offenses: The definition of torture is unacceptably narrow, a virtual reprise of
the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced
activity, and not other forms of nonconsensual sex. The bill would effectively
eliminate the idea of rape as torture.
But here’s arguably the most cynical provision of the bill. While it would bar military commissions from considering testimony obtained through interrogation techniques that involve "cruel, unusual or inhumane treatment or punishment," this bar would be retroactive only to Dec. 30, 2005 -- when Congress
adopted the Detainee Treatment Act -- to protect CIA operatives from possible
prosecution over interrogation tactics used before that date.
So much for the ‘rebels’ pushing back against the White House. Messrs. Warner, Graham, and McCain deserve the nation’s thanks. Thanks, Mavericks!
Despite the overwhelmingly depressing outcome of the debate on the Senate floor Thursday, there were a few heroes, albeit unsuccessful heroes. One of them was the Republican chairman of the Senate Judiciary Committee, Arlen Specter of Pennsylvania, whose civil yet impassioned plea to strip the bill of its anti-habeas corpus provision may one day join Calhoun, Clay and Webster on the list of the Senate’s greatest orations.
Specter, perhaps best known for presiding over hearings for Supreme Court nominees, was joined by the equally impassioned Vermont Democrat, Senator Patrick Leahy – whose speech was more predictable but no less eloquent. Lamentably, they both lost.
Our once-rockstar Secretary of Defense, Donald Rumsfeld, keeps referring to the detainees at Guantanamo Bay as “the worst of the worst.” But five years after 9/11, none of these worst has been tried, and the Bush Administration appears to have little interest in trying them. Except for the 14 recently moved to GITMO from the CIA’s secret prisons. And it remains unclear whether these 14 could ever be tried, given the CIA’s “aggressive” interrogation methods.
The Bush Administration’s disinterest in trying the other 4-500 prisoners at GITMO shouldn’t surprise us. A substantial number of them were captured because they were in the wrong place at the wrong time, or were sold to us for bounties by Afghan warlords, or have been classified by the Pentagon as innocent of any terror-related crime, but continue to be held nevertheless.
I have yet to meet – either in the US or abroad – a single person who doesn’t want the perpetrators or 9/11 and other terrorist crimes brought to justice. But I have heard from lots of Americans who don’t seem to care much about the fairness of the process for trying and punishing them.
That’s not surprising. We have every right to be angry with those who kill our people. But too many Americans are also historically challenged. They know nothing about our Alien and Sedition Acts, Lincoln’s suspension of Habeas Corpus, Woodrow Wilson’s espionage acts, the “red raids” of Attorney General Mitchell Palmer, Franklin Roosevelt’s internment of Japanese-Americans, the rantings of Senator Joe McCarthy, or any of the other sadder chapters in our country’s administration of justice.
For most of these egregious lapses, it has been our Supreme Court that eventually righted the ship of state. Today is no different.
If there is a light at the end of President Bush’s tunnel, it will be the Supreme Court that flips the switch. Sooner or later, the law the president signs next week will turn up on the doorstep of the Supremes.
Given the ideological makeup of the current court, the light may be faint. But it’s all we have.
Friday, September 22, 2006
OUTSOURCING TORTURE REDUX
By William Fisher
The American mainstream press has front-paged the exoneration by a Canadian government commission of Mahar Arar, the Canadian citizen who was detained by U.S. authorities at JFK International Airport in New York in 2002 after returning from a trip to Tunisia enroute to his home in Ottowa. He was questioned for 12 days without access to counsel, and then flown on a U.S. Government plane to Jordan, and finally overland to Syria, where he was imprisoned in a coffin-size cell and tortured for ten months until the Syrians released him without charges.
Most media accounts of Mr. Arar’s ordeal have attributed this travesty to faulty intelligence passed to US authorities by the Royal Canadian Mounted Police, the RCMP. The Mounties characterized the now 37-year-old engineer as "an Islamic extremist individual," and had him – and his entire family, including a six-month-old infant -- placed on a US Al Qaeda no-fly watchlist.
Indeed, the Canadian information was grossly incorrect. The Chairman of the 2.5-year investigation, Ontario Justice Dennis O'Connor, concluded that "categorically there is no evidence" that Arar did anything wrong or was a security threat.
But headlines such as the one topping a New York Times editorial last week – “Tortured by Mistake” – are missing some larger points.
Point one is whether US intelligence agencies made any effort to verify the Canadian information, or merely accepted the word of a trusted neighbor. We will probably never know the answer, because the CIA and the FBI aren’t likely to ever tell us.
Point two is whether the US government sought the customary – and customarily useless – “diplomatic assurances” from the Syrians that they would not torture their detainee. The US State Department has been following this absurd protocol for years, receiving such assurances from some of the world’s most pernicious purveyors of torture. Again, we will probably never know because State has from the outset declined to cooperate with the Canadian inquiry.
In fact, the State Department has consistently refused to utter a single word of comment on the case. And, until last week, all other government officials were similarly silent.
Some time ago, we heard from Attorney General Alberto Gonzales, who said, "Mr. Arar was deported under immigration laws. He was initially detained because his name appeared on a terrorist list. He was deported according to our laws.” Gonzales said that Arar’s removal was “a deportation, not a rendition.”
But last week came a contradictory and bumbling statement from the Attorney General. Gonzales disputed Canadian findings that the US was responsible for deporting an innocent man. At a news conference about the Canadian commission’s finding that Mr. Arar was wrongly sent to Syria and tortured there, Mr. Gonzales replied, “Well, we were not responsible for his removal to Syria.” He added, “I’m not aware that he was tortured.”
The attorney general’s denial followed front-page news articles of the findings of the Canadian commission, which reported that American officials ordered him taken to Syria. Shortly afterward, a Justice Department spokesman attempted to clarify the AG’s remarks, saying Mr. Gonzales had intended to make only a narrow point: that deportations are now handled by the Department of Homeland Security, not the Department of Justice. The spokesman said the attorney general forgot that at the time of Mr. Arar’s deportation, deportation was still handled by the Immigration and Naturalization Service, then part of the Department of Justice. “He had his timeline mixed up,”
He also declined to elaborate on why Mr. Gonzales appeared to cast doubt on the Canadian finding that Mr. Arar had been tortured, except to note that Mr. Arar had brought a lawsuit against United States officials. The case was dismissed by a lower court after the DOJ invoked the so-called “state secrets” privilege.
The “state secrets” maneuver was rarely used before the Bush presidency. Since then, it has become standard practice for government lawyers. In response to a host of lawsuits against the US, the Department of Justice tells a judge that if the case were to go forward, it would expose national security secrets in open court. Judges have for the most part been compliant, and numerous suits have been dismissed as a result. They involve a variety of plaintiffs – from government whistleblowers to wrongly accused terrorists.
In addition to the dismissal of Mr. Arar’s suit, which he is now appealing, the “state secrets” privilege was used to silence Sibel Edmonds, an FBI translator who tried to report serious management and national security abuses at the Bureau. And, among the most egregious cases, a German citizen, Khaled al-Masri, was kidnapped by the CIA in Macedonia and taken to Afghanistan, where he was imprisoned incommunicado for five months. Al-Masri sued former CIA director George Tenet, but his case was dismissed on the basis of “state secrets.” The US Government never admitted its “mistake.”
Point three is larger still. Despite the Attorney General’s denials, Mr. Arar was spirited off to Syria under a CIA program known as “extraordinary rendition.” Authorized by a secret “finding” by President Clinton in 1995, and exponentially accelerated after the 9/11 attacks, this program was illegal before Arar’s kidnapping, was illegal after it, and remains illegal. It is illegal because it violates US and international law.
And, absent the strongest statutory action by Congress, we have little reason to believe that this President will not continue the rendition program when (or if) the dust settles on the current Congressional dispute over prisoner detention and treatment.
Why is “extraordinary rendition” illegal?
The US was one of the original signatories to the Geneva Conventions, of which the now much-discussed Common Article 3 is a part. The UN’s International Covenant on Civil and Political Rights (ICCPR) was ratified by the US in 1992. Two years later, the US ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Thus, all have become part of US law, as are all treaties ratified by Congress.
Common Article 3, with which the Supreme Court in the recent Hamdan decision, ruled that the US must comply in its treatment of detainees, applies to armed conflict. If the armed conflict is international -- between two or more states-- then they are governed by one set of rules. If the armed conflict is not international -- not between two or more states, but rather, between a state and armed groups or between armed groups -- then another set of Common Article 3 rules apply. This is the section the Supreme Court said governs the treatment of suspected terrorists.
All of these treaties prohibit inhumane treatment. Without doubt, this would include transfer of a person to a country either for the purpose inflicting inhumane treatment, or with the knowledge that such treatment is distinctly possible. And both the ICCPR and the CAT specifically prohibit "refoulement" -- the transfer of persons to countries where they may be tortured. Yet, since September 11, 2001, the number of renditions appears to be in the hundreds.
Egypt’s Prime Minister noted in 2005 that the US had transferred some 60-70 detainees to Egypt alone, and a former CIA agent with experience in the region believes that hundreds of detainees have been sent by the US to prisons in Jordan, Saudi Arabia, and elsewhere in North Africa and the Middle East.
The US has used the “diplomatic assurances” figleaf to continue this program. And Congress has largely turned a blind eye. It has failed to exercise anything approaching its oversight responsibilities where intelligence agencies are involved. Congressional hearings offering public testimony by CIA officials are extremely rare. And what the House and Senate Intelligence Committees learn in closed session remains largely secret – unless leaked to the media. This gives Congress a perfect cover for doing nothing.
A few legislators have tried to deal with the issue, with mixed success.
Most prominent among these is Sen. John McCain. Against the active lobbying of Vice President Cheney and other high administration officials, McCain – a tortured prisoner of war during Vietnam – successfully introduced his Detainee Treatment Act in 2005, as an amendment to a defense appropriations measure.
The McCain amendment prohibits the use of cruel, inhuman or degrading treatment against any individual in the custody or physical control of the Unite States. Passed by overwhelming majorities in both Houses of Congress, its effect was then diminished by a “signing statement” by President Bush. The President said, in effect, that he would follow the law unless it jeopardized national security.
Other legislators have had even less luck. A Massachusetts congressman, Edward Markey, introduced legislation last year to ban extraordinary renditions. A companion bill in the Senate -- the Convention Against Torture Implementation Act -- has been introduced by Sen. Patrick Leahy, a Democrat from Vermont, and ranking member of the Senate Judiciary Committee. Like Markey's, the Leahy bill would require annual reporting of countries that engage in torture, and prohibit the US government from transferring or rendering a detainee to a country that has a history of torture.
But it is unlikely these bills will ever come to a vote in either chamber. According to the New Yorker’s Jane Mayer, who has written authoritatively on extraordinary rendition and the connection of policymakers to torture, “Democrats don’t have the ability to hold hearings unless the party in power, the GOP, agrees. And Republicans have been loath to do that. There’s been none of the usual fact-finding with subpoena power,” she says.
Even now, with the Republican majority in the Senate facing an open rebellion by prominent members of their own party about how to implement the Hamdan decision, neither the legislation proposed by the White House nor the bill being pushed by the rebels – Senators McCain, Lindsey Graham, John Warner, Susan Collins, Olympia Snowe, and others -- mentions extraordinary rendition explicitly. Nor does it mention secret detention, another practice clearly in violation of US treaty obligations.
But unless Congress decides to abrogate the Geneva Conventions and kindred treaties altogether, rendition itself would constitute a clear violation.
Moreover, there is a strong case to be made that the techniques known to be used by the CIA in carrying out extraordinary renditions themselves constitute cruel, degrading and inhumane treatment – before the suspects themselves ever reach their destination prisons. We know from eyewitness testimony and various leaks to the media that typically masked CIA operatives forcibly abduct a suspect, strip him, insert a suppository into his anus to drug him, put a diaper on him, and then put him aboard a CIA-chartered aircraft, where he is placed in a standing position against a bulkhead with his wrists handcuffed above his head. He remains in that position until the plane lands.
That’s what reportedly happened to two Egyptians, who were free in Sweden awaiting a decision on their asylum application. They were kidnapped, flown back to Egypt, arrested by security services, and tried before a military court.
The take-offs, landings and flights of various CIA-leased aircraft over airspace in Europe and elsewhere have been meticulously documented, causing major disruptions in US relations with the European Union and other bodies.
Months after Dana Priest of the Washington Post broke the story of secret CIA prisons in Eastern Europe and elsewhere, and after the Supreme Court handed down its Hamdan decision, President Bush announced that these prisons would now be emptied and their occupants transferred to Guantanamo Bay, Cuba. Thus, he implicitly acknowledged that the US had used extraordinary renditions to transport detainees to these secret prisons.
There is only one reason prisoners are whisked off to other countries: To allow the CIA to use what President Bush euphemistically calls “alternative interrogation” methods outside the reach of US law. But neither the CIA secret prisons nor Guantanamo Bay are outside the reach of US law. The test is whether these people are effectively in US custody or under US control. The Supreme Court has said they are.
That said, the Congress – not the President – needs to figure out an equitable way to try them. Defense Secretary Rumsfeld has described these people as “the worst of the worst.” And likely some of them are. But we also know that there are prisoners at GITMO who have been cleared of any connection to terrorism, yet are still in detention; that many of them were simply in the wrong place at the wrong time; that many others were “bought” by the US military in Afghanistan for payments of $5,000 per head from Afghanistan’s Northern Alliance. Since the opening of the prison at GITMO, not a single inmate has been tried.
None of which will help Mahar Arar. The damage to his life cannot be undone. But an acknowledgement by the US of its role in his ordeal, apologies from both Canada and America, and payment of damages, would be reasonable places to begin.
But at the end of the day, it will be up to Congress not just to enact effective and fair legislation, but to begin to exercise the oversight responsibilities it has so recklessly ceded to the White House.
The American mainstream press has front-paged the exoneration by a Canadian government commission of Mahar Arar, the Canadian citizen who was detained by U.S. authorities at JFK International Airport in New York in 2002 after returning from a trip to Tunisia enroute to his home in Ottowa. He was questioned for 12 days without access to counsel, and then flown on a U.S. Government plane to Jordan, and finally overland to Syria, where he was imprisoned in a coffin-size cell and tortured for ten months until the Syrians released him without charges.
Most media accounts of Mr. Arar’s ordeal have attributed this travesty to faulty intelligence passed to US authorities by the Royal Canadian Mounted Police, the RCMP. The Mounties characterized the now 37-year-old engineer as "an Islamic extremist individual," and had him – and his entire family, including a six-month-old infant -- placed on a US Al Qaeda no-fly watchlist.
Indeed, the Canadian information was grossly incorrect. The Chairman of the 2.5-year investigation, Ontario Justice Dennis O'Connor, concluded that "categorically there is no evidence" that Arar did anything wrong or was a security threat.
But headlines such as the one topping a New York Times editorial last week – “Tortured by Mistake” – are missing some larger points.
Point one is whether US intelligence agencies made any effort to verify the Canadian information, or merely accepted the word of a trusted neighbor. We will probably never know the answer, because the CIA and the FBI aren’t likely to ever tell us.
Point two is whether the US government sought the customary – and customarily useless – “diplomatic assurances” from the Syrians that they would not torture their detainee. The US State Department has been following this absurd protocol for years, receiving such assurances from some of the world’s most pernicious purveyors of torture. Again, we will probably never know because State has from the outset declined to cooperate with the Canadian inquiry.
In fact, the State Department has consistently refused to utter a single word of comment on the case. And, until last week, all other government officials were similarly silent.
Some time ago, we heard from Attorney General Alberto Gonzales, who said, "Mr. Arar was deported under immigration laws. He was initially detained because his name appeared on a terrorist list. He was deported according to our laws.” Gonzales said that Arar’s removal was “a deportation, not a rendition.”
But last week came a contradictory and bumbling statement from the Attorney General. Gonzales disputed Canadian findings that the US was responsible for deporting an innocent man. At a news conference about the Canadian commission’s finding that Mr. Arar was wrongly sent to Syria and tortured there, Mr. Gonzales replied, “Well, we were not responsible for his removal to Syria.” He added, “I’m not aware that he was tortured.”
The attorney general’s denial followed front-page news articles of the findings of the Canadian commission, which reported that American officials ordered him taken to Syria. Shortly afterward, a Justice Department spokesman attempted to clarify the AG’s remarks, saying Mr. Gonzales had intended to make only a narrow point: that deportations are now handled by the Department of Homeland Security, not the Department of Justice. The spokesman said the attorney general forgot that at the time of Mr. Arar’s deportation, deportation was still handled by the Immigration and Naturalization Service, then part of the Department of Justice. “He had his timeline mixed up,”
He also declined to elaborate on why Mr. Gonzales appeared to cast doubt on the Canadian finding that Mr. Arar had been tortured, except to note that Mr. Arar had brought a lawsuit against United States officials. The case was dismissed by a lower court after the DOJ invoked the so-called “state secrets” privilege.
The “state secrets” maneuver was rarely used before the Bush presidency. Since then, it has become standard practice for government lawyers. In response to a host of lawsuits against the US, the Department of Justice tells a judge that if the case were to go forward, it would expose national security secrets in open court. Judges have for the most part been compliant, and numerous suits have been dismissed as a result. They involve a variety of plaintiffs – from government whistleblowers to wrongly accused terrorists.
In addition to the dismissal of Mr. Arar’s suit, which he is now appealing, the “state secrets” privilege was used to silence Sibel Edmonds, an FBI translator who tried to report serious management and national security abuses at the Bureau. And, among the most egregious cases, a German citizen, Khaled al-Masri, was kidnapped by the CIA in Macedonia and taken to Afghanistan, where he was imprisoned incommunicado for five months. Al-Masri sued former CIA director George Tenet, but his case was dismissed on the basis of “state secrets.” The US Government never admitted its “mistake.”
Point three is larger still. Despite the Attorney General’s denials, Mr. Arar was spirited off to Syria under a CIA program known as “extraordinary rendition.” Authorized by a secret “finding” by President Clinton in 1995, and exponentially accelerated after the 9/11 attacks, this program was illegal before Arar’s kidnapping, was illegal after it, and remains illegal. It is illegal because it violates US and international law.
And, absent the strongest statutory action by Congress, we have little reason to believe that this President will not continue the rendition program when (or if) the dust settles on the current Congressional dispute over prisoner detention and treatment.
Why is “extraordinary rendition” illegal?
The US was one of the original signatories to the Geneva Conventions, of which the now much-discussed Common Article 3 is a part. The UN’s International Covenant on Civil and Political Rights (ICCPR) was ratified by the US in 1992. Two years later, the US ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Thus, all have become part of US law, as are all treaties ratified by Congress.
Common Article 3, with which the Supreme Court in the recent Hamdan decision, ruled that the US must comply in its treatment of detainees, applies to armed conflict. If the armed conflict is international -- between two or more states-- then they are governed by one set of rules. If the armed conflict is not international -- not between two or more states, but rather, between a state and armed groups or between armed groups -- then another set of Common Article 3 rules apply. This is the section the Supreme Court said governs the treatment of suspected terrorists.
All of these treaties prohibit inhumane treatment. Without doubt, this would include transfer of a person to a country either for the purpose inflicting inhumane treatment, or with the knowledge that such treatment is distinctly possible. And both the ICCPR and the CAT specifically prohibit "refoulement" -- the transfer of persons to countries where they may be tortured. Yet, since September 11, 2001, the number of renditions appears to be in the hundreds.
Egypt’s Prime Minister noted in 2005 that the US had transferred some 60-70 detainees to Egypt alone, and a former CIA agent with experience in the region believes that hundreds of detainees have been sent by the US to prisons in Jordan, Saudi Arabia, and elsewhere in North Africa and the Middle East.
The US has used the “diplomatic assurances” figleaf to continue this program. And Congress has largely turned a blind eye. It has failed to exercise anything approaching its oversight responsibilities where intelligence agencies are involved. Congressional hearings offering public testimony by CIA officials are extremely rare. And what the House and Senate Intelligence Committees learn in closed session remains largely secret – unless leaked to the media. This gives Congress a perfect cover for doing nothing.
A few legislators have tried to deal with the issue, with mixed success.
Most prominent among these is Sen. John McCain. Against the active lobbying of Vice President Cheney and other high administration officials, McCain – a tortured prisoner of war during Vietnam – successfully introduced his Detainee Treatment Act in 2005, as an amendment to a defense appropriations measure.
The McCain amendment prohibits the use of cruel, inhuman or degrading treatment against any individual in the custody or physical control of the Unite States. Passed by overwhelming majorities in both Houses of Congress, its effect was then diminished by a “signing statement” by President Bush. The President said, in effect, that he would follow the law unless it jeopardized national security.
Other legislators have had even less luck. A Massachusetts congressman, Edward Markey, introduced legislation last year to ban extraordinary renditions. A companion bill in the Senate -- the Convention Against Torture Implementation Act -- has been introduced by Sen. Patrick Leahy, a Democrat from Vermont, and ranking member of the Senate Judiciary Committee. Like Markey's, the Leahy bill would require annual reporting of countries that engage in torture, and prohibit the US government from transferring or rendering a detainee to a country that has a history of torture.
But it is unlikely these bills will ever come to a vote in either chamber. According to the New Yorker’s Jane Mayer, who has written authoritatively on extraordinary rendition and the connection of policymakers to torture, “Democrats don’t have the ability to hold hearings unless the party in power, the GOP, agrees. And Republicans have been loath to do that. There’s been none of the usual fact-finding with subpoena power,” she says.
Even now, with the Republican majority in the Senate facing an open rebellion by prominent members of their own party about how to implement the Hamdan decision, neither the legislation proposed by the White House nor the bill being pushed by the rebels – Senators McCain, Lindsey Graham, John Warner, Susan Collins, Olympia Snowe, and others -- mentions extraordinary rendition explicitly. Nor does it mention secret detention, another practice clearly in violation of US treaty obligations.
But unless Congress decides to abrogate the Geneva Conventions and kindred treaties altogether, rendition itself would constitute a clear violation.
Moreover, there is a strong case to be made that the techniques known to be used by the CIA in carrying out extraordinary renditions themselves constitute cruel, degrading and inhumane treatment – before the suspects themselves ever reach their destination prisons. We know from eyewitness testimony and various leaks to the media that typically masked CIA operatives forcibly abduct a suspect, strip him, insert a suppository into his anus to drug him, put a diaper on him, and then put him aboard a CIA-chartered aircraft, where he is placed in a standing position against a bulkhead with his wrists handcuffed above his head. He remains in that position until the plane lands.
That’s what reportedly happened to two Egyptians, who were free in Sweden awaiting a decision on their asylum application. They were kidnapped, flown back to Egypt, arrested by security services, and tried before a military court.
The take-offs, landings and flights of various CIA-leased aircraft over airspace in Europe and elsewhere have been meticulously documented, causing major disruptions in US relations with the European Union and other bodies.
Months after Dana Priest of the Washington Post broke the story of secret CIA prisons in Eastern Europe and elsewhere, and after the Supreme Court handed down its Hamdan decision, President Bush announced that these prisons would now be emptied and their occupants transferred to Guantanamo Bay, Cuba. Thus, he implicitly acknowledged that the US had used extraordinary renditions to transport detainees to these secret prisons.
There is only one reason prisoners are whisked off to other countries: To allow the CIA to use what President Bush euphemistically calls “alternative interrogation” methods outside the reach of US law. But neither the CIA secret prisons nor Guantanamo Bay are outside the reach of US law. The test is whether these people are effectively in US custody or under US control. The Supreme Court has said they are.
That said, the Congress – not the President – needs to figure out an equitable way to try them. Defense Secretary Rumsfeld has described these people as “the worst of the worst.” And likely some of them are. But we also know that there are prisoners at GITMO who have been cleared of any connection to terrorism, yet are still in detention; that many of them were simply in the wrong place at the wrong time; that many others were “bought” by the US military in Afghanistan for payments of $5,000 per head from Afghanistan’s Northern Alliance. Since the opening of the prison at GITMO, not a single inmate has been tried.
None of which will help Mahar Arar. The damage to his life cannot be undone. But an acknowledgement by the US of its role in his ordeal, apologies from both Canada and America, and payment of damages, would be reasonable places to begin.
But at the end of the day, it will be up to Congress not just to enact effective and fair legislation, but to begin to exercise the oversight responsibilities it has so recklessly ceded to the White House.
Sunday, September 17, 2006
THE THIRD RAIL OF BUSH’S DICTIONARY
By William Fisher
President Bush’s speechwriters have just about worn out their lexicon of scary words and phrases to regale us with tales of all the terrorist plots he has disrupted since 9/11. But one word has apparently been expunged from the White House dictionary: Anthrax.
It has been four years since letters laced with the deadly white powder were mailed to the offices of then-Senate Democratic leader Thomas A. Daschle and Sen. Patrick J. Leahy, as well as to media companies in Florida and New York. The letters included denunciations of Israel and America and were written in childish capitals.
Two D.C. postal workers, a Florida journalist, a New York hospital worker, and an elderly Connecticut woman died. Seventeen others were sickened and the House, Senate, Supreme Court buildings, and numerous postal facilities were contaminated and shut down. The mailings led the nation to the brink of mass hysteria. The Washington Post reports that, including cleanup costs, the damage was more than a billion dollars.
The Post’s Alan Lengel reports that the search for the anthrax-mailer led to “one of the most exhaustive investigations in FBI history.” But, after some 8,000 interviews and 5,000 subpoenas in the U.S., Europe, Asia, and Africa, he writes, the investigation “has yielded no arrests and is showing signs of growing cold as officials have sharply reduced the number of agents on the case.”
With a $2.5 million reward for information leading to an arrest and conviction, the
FBI says it is still working hard with forensics experts and scientific
researchers from law enforcement agencies, the intelligence community,
university laboratories and private corporations, to find the culprit.
“The prevailing theory,” Lengel writes, is that “The culprit is a U.S. scientist who had access to the high-grade anthrax and the knowledge of how to physically manipulate it and use it as a weapon.”
That theory has been around virtually since the beginning of the investigation, when authorities narrowed down the type of anthrax to a strain called Ames. But they have been unable to identify the lab of origin. After ruling out a possible al-Qaida link, the FBI focused on domestic “home-grown” terrorists.
The FBI initially suspected the U.S. Army Medical Research Institute of Infectious Diseases, housed at Fort Detrick in the Frederick, Maryland, area. Two years ago, the FBI spent about $250,000 and three weeks draining a pond in Frederick, acting on a theory that someone might have discarded materials there. But that exercise yielded nothing.
Yet is was that same theory that prompted the Justice Department and then-Attorney General John D. Ashcroft in 2002 to publicly name “a person of interest” -- Steven J. Hatfill, a physician and bioterrorism expert who worked at Fort Detrick from 1997 to 1999.
But four years after he was “outed,” Hatfill has not been charged with any crime, has denied any involvement, has lost his job, and has issued legal writs against the government and media organizations.
Hatfill’s designation as a “person of interest” should call our attention once again to one of the Justice Department’s most pernicious practices. It is no less shameful than law enforcement’s penchant to capture headlines by calling high-profile press conferences to publicly trumpet someone’s arrest before he or she is charged with an offense based on a judicial finding of probable cause.
Rewind to 1996, when the FBI identified as a “person of interest” a security guard named Richard Jewel, who alerted authorities to the presence of a suspicious package at Centennial Olympic Park in Atlanta, where a bomb exploded shortly afterwards, killing a bystander and causing a fatal heart attack to a foreign journalist. Instead of being hailed as a hero whose action saved many lives, the hapless Jewel was universally condemned and relentlessly harassed by the media, which painted him as a gung-ho cop wannabee. The FBI finally fessed up to his innocence – but never apologized. Oh well, another day at the office, and another life ruined.
But back to the President’s dictionary.
We have no way to verify the President’s claims of success in thwarting terrorist plots through the secret “alternative methods” of interrogation used by the Central Intelligence Agency – precisely because they are secret. The alleged terrorists have been held incommunicado in secret prisons whose existence Mr. Bush finally conceded after months of denials and “no comments.” Nor has anyone told us what these CIA “alternative methods” involve; we hear only that waterboarding and hypothermia are prominent in the interrogation repertoire, though the President continues to insist that “The United States doesn’t torture.”
(Which makes it even more bizarre that he now insists on amending Common Article Three of the Geneva Conventions.)
Absent the decision of the Supreme Court, few of us would have the foggiest idea what Common Article Three is. The Court said, in essence, that there are some things that The Decider simply cannot decide. One of them is how to treat people suspected of committing terrorist acts. The other is how to bring them to justice.
Cutting through the legalese, the President’s response to both is still “trust me.” But Mr. Bush has lost that battle. He has squandered the virtually universal trust the world had in him following 9/11. In so doing, he has dealt a deadly blow to America’s reputation in the world. And, arguably, he has made it more, not less, difficult for our country to win a war of ideologies against those who would attack and kill us.
So “trust me” is just not working anymore. Which is why we’re not likely to hear the president talking about Anthrax any time soon.
President Bush’s speechwriters have just about worn out their lexicon of scary words and phrases to regale us with tales of all the terrorist plots he has disrupted since 9/11. But one word has apparently been expunged from the White House dictionary: Anthrax.
It has been four years since letters laced with the deadly white powder were mailed to the offices of then-Senate Democratic leader Thomas A. Daschle and Sen. Patrick J. Leahy, as well as to media companies in Florida and New York. The letters included denunciations of Israel and America and were written in childish capitals.
Two D.C. postal workers, a Florida journalist, a New York hospital worker, and an elderly Connecticut woman died. Seventeen others were sickened and the House, Senate, Supreme Court buildings, and numerous postal facilities were contaminated and shut down. The mailings led the nation to the brink of mass hysteria. The Washington Post reports that, including cleanup costs, the damage was more than a billion dollars.
The Post’s Alan Lengel reports that the search for the anthrax-mailer led to “one of the most exhaustive investigations in FBI history.” But, after some 8,000 interviews and 5,000 subpoenas in the U.S., Europe, Asia, and Africa, he writes, the investigation “has yielded no arrests and is showing signs of growing cold as officials have sharply reduced the number of agents on the case.”
With a $2.5 million reward for information leading to an arrest and conviction, the
FBI says it is still working hard with forensics experts and scientific
researchers from law enforcement agencies, the intelligence community,
university laboratories and private corporations, to find the culprit.
“The prevailing theory,” Lengel writes, is that “The culprit is a U.S. scientist who had access to the high-grade anthrax and the knowledge of how to physically manipulate it and use it as a weapon.”
That theory has been around virtually since the beginning of the investigation, when authorities narrowed down the type of anthrax to a strain called Ames. But they have been unable to identify the lab of origin. After ruling out a possible al-Qaida link, the FBI focused on domestic “home-grown” terrorists.
The FBI initially suspected the U.S. Army Medical Research Institute of Infectious Diseases, housed at Fort Detrick in the Frederick, Maryland, area. Two years ago, the FBI spent about $250,000 and three weeks draining a pond in Frederick, acting on a theory that someone might have discarded materials there. But that exercise yielded nothing.
Yet is was that same theory that prompted the Justice Department and then-Attorney General John D. Ashcroft in 2002 to publicly name “a person of interest” -- Steven J. Hatfill, a physician and bioterrorism expert who worked at Fort Detrick from 1997 to 1999.
But four years after he was “outed,” Hatfill has not been charged with any crime, has denied any involvement, has lost his job, and has issued legal writs against the government and media organizations.
Hatfill’s designation as a “person of interest” should call our attention once again to one of the Justice Department’s most pernicious practices. It is no less shameful than law enforcement’s penchant to capture headlines by calling high-profile press conferences to publicly trumpet someone’s arrest before he or she is charged with an offense based on a judicial finding of probable cause.
Rewind to 1996, when the FBI identified as a “person of interest” a security guard named Richard Jewel, who alerted authorities to the presence of a suspicious package at Centennial Olympic Park in Atlanta, where a bomb exploded shortly afterwards, killing a bystander and causing a fatal heart attack to a foreign journalist. Instead of being hailed as a hero whose action saved many lives, the hapless Jewel was universally condemned and relentlessly harassed by the media, which painted him as a gung-ho cop wannabee. The FBI finally fessed up to his innocence – but never apologized. Oh well, another day at the office, and another life ruined.
But back to the President’s dictionary.
We have no way to verify the President’s claims of success in thwarting terrorist plots through the secret “alternative methods” of interrogation used by the Central Intelligence Agency – precisely because they are secret. The alleged terrorists have been held incommunicado in secret prisons whose existence Mr. Bush finally conceded after months of denials and “no comments.” Nor has anyone told us what these CIA “alternative methods” involve; we hear only that waterboarding and hypothermia are prominent in the interrogation repertoire, though the President continues to insist that “The United States doesn’t torture.”
(Which makes it even more bizarre that he now insists on amending Common Article Three of the Geneva Conventions.)
Absent the decision of the Supreme Court, few of us would have the foggiest idea what Common Article Three is. The Court said, in essence, that there are some things that The Decider simply cannot decide. One of them is how to treat people suspected of committing terrorist acts. The other is how to bring them to justice.
Cutting through the legalese, the President’s response to both is still “trust me.” But Mr. Bush has lost that battle. He has squandered the virtually universal trust the world had in him following 9/11. In so doing, he has dealt a deadly blow to America’s reputation in the world. And, arguably, he has made it more, not less, difficult for our country to win a war of ideologies against those who would attack and kill us.
So “trust me” is just not working anymore. Which is why we’re not likely to hear the president talking about Anthrax any time soon.
Wednesday, September 13, 2006
A MURROW MOMENT
By William Fisher
People who are too young to remember the 1930s, 40s, and 50s may not know that the airwaves were filled with hysterical, fear-mongering voices long before we ever heard of Bill O’Reilly.
Back then, the airwaves were radio waves. Nightly, millions of families gathered before their Radiolas and Emersons to listen to the news. There were such “commentators” as Lowell Thomas, Gabriel Heater and H.V. Kaltenborn, whose notion of news consisted largely of reading press releases from the Republican National Committee. On Sunday evenings, there was Walter Winchell, a gossip columnist turned world affairs authority, who always began his program with the greeting, “Good evening, Mr. and Mrs. America and all the ships at sea.” Winchell’s rabid anti-Roosevelt and anti-New Deal views were barely concealed in his staccato delivery.
Then there was Boake Carter, a certifiable wing-nut who was for a time the country’s preeminent news commentator. The British-accented Carter had higher ratings than any of the other radio voices. His enemy was anything liberal. He was an apoplectic isolationist who belonged to an Anti-Semitic organization. One of Carter’s claims was that the sinking of an American gunboat by the Japanese on a river in China was part of a secret plot by President Roosevelt to plunge the country into a war in Asia. As Carter became increasingly irrational, pressure on CBS and his sponsor, General Foods, grew and CBS canceled his newscast. He later got a three-times-a-week commentary program on the Mutual Network, but was soon moved out of prime time. His rise was meteoric, but his fall was even faster.
But even in these dark days of no-nothing journalism, there were bright spots. One of the brightest was Edward R. Murrow, who set the standard for television journalism. His calm and courageous reporting captured our nation's and the world's attention during the German Blitz of Great Britain in 1940 and 1941. Millions of Americans sat by their radios to hear Murrow’s deep, sonorous voice begin, as he began all of his wartime broadcasts, “This is London.”
In 1954, at the height of the McCarthy era paranoia, Murrow produced the program that, more than any other single broadcast, has come to define him: A televised critique of Wisconsin Senator Joseph McCarthy.
There’s a reason I cite all this old radio days history. Then, as now, there was little and largely ineffective public push-back against right-wing radio “news.” Then, as now, networks controlled the airwaves, and sponsors controlled the networks. Today, we have television as well as radio. And today, both are still controlled by large corporate interests – owners and sponsors.
The impact of today’s TV and radio “news” has been well-documented. The nightly news programs of the major broadcast networks are caricatures of the cult of “objectivity,” in which anchors feel obliged to present the views of “both sides” of an issue, even when they know one side is peddling falsehoods. In both broadcast and cable outlets, the line between news, commentary and entertainment is no longer decipherable. Which gives us faux history disguised as “docudramas” like ABC’s “The Road to 9/11.” And since a majority of Americans still get most of their “news” from the “fair, balanced and unafraid” Fox Network, there is no mystery about why a large minority of us still thinks Saddam Hussein was responsible for the terrorist attacks depicted in that deeply flawed production.
All of which makes Keith Olbermann an even more remarkable phenomenon. Most remarkable is that Olby is still on the air, because for the past few years he has made a target of Bill O’Reilly, whose reactionary and often incoherent rants have made him not just a broadcaster but a powerful industry.
Well, there are no more Ed Murrows around. Or Walter Cronkites either. Keith Olbermann is virtually the only progressive voice available to us on either broadcast or cable.
And never was that truth more apparent than in his blistering critique of Defense Secretary Donald Rumsfeld’s recent American Legion speech, in which Rumsfeld drew a parallel between those who disagree with the Bush Administration and those who appeased Hitler in the 1930s.
So unusual in our time is Olbermann’s commentary on Rumsfeld that it is worth repeating here in full. This is what he said:
Feeling Morally, Intellectually Confused?
The man who sees absolutes, where all other men see nuances and shades of meaning, is either a prophet, or a quack.
Donald H. Rumsfeld is not a prophet.
Mr. Rumsfeld’s remarkable speech to the American Legion yesterday demands the deep analysis—and the sober contemplation—of every American.
For it did not merely serve to impugn the morality or intelligence -- indeed, the loyalty -- of the majority of Americans who oppose the transient occupants of the highest offices in the land. Worse, still, it credits those same transient occupants -- our employees -- with a total omniscience; a total omniscience which neither common sense, nor this administration’s track record at home or abroad, suggests they deserve.
Dissent and disagreement with government is the life’s blood of human freedom; and not merely because it is the first roadblock against the kind of tyranny the men Mr. Rumsfeld likes to think of as “his” troops still fight, this very evening, in Iraq.
It is also essential. Because just every once in awhile it is right and the power to which it speaks, is wrong.
In a small irony, however, Mr. Rumsfeld’s speechwriter was adroit in invoking the memory of the appeasement of the Nazis. For in their time, there was another government faced with true peril—with a growing evil—powerful and remorseless.
That government, like Mr. Rumsfeld’s, had a monopoly on all the facts. It, too, had the “secret information.” It alone had the true picture of the threat. It too dismissed and insulted its critics in terms like Mr. Rumsfeld’s -- questioning their intellect and their morality.
That government was England’s, in the 1930’s.
It knew Hitler posed no true threat to Europe, let alone England.
It knew Germany was not re-arming, in violation of all treaties and accords.
It knew that the hard evidence it received, which contradicted its own policies, its own conclusions — its own omniscience -- needed to be dismissed.
The English government of Neville Chamberlain already knew the truth.
Most relevant of all — it “knew” that its staunchest critics needed to be marginalized and isolated. In fact, it portrayed the foremost of them as a blood-thirsty war-monger who was, if not truly senile, at best morally or intellectually confused.
That critic’s name was Winston Churchill.
Sadly, we have no Winston Churchills evident among us this evening. We have only Donald Rumsfelds, demonizing disagreement, the way Neville Chamberlain demonized Winston Churchill.
History — and 163 million pounds of Luftwaffe bombs over England — have taught us that all Mr. Chamberlain had was his certainty — and his own confusion. A confusion that suggested that the office cannot only make the man, but that the office can also make the facts.
Thus, did Mr. Rumsfeld make an apt historical analogy.
Excepting the fact, that he has the battery plugged in backwards.
His government, absolute -- and exclusive -- in its knowledge, is not the modern version of the one which stood up to the Nazis.
It is the modern version of the government of Neville Chamberlain.
But back to today’s Omniscient ones.
That, about which Mr. Rumsfeld is confused is simply this: This is a Democracy. Still. Sometimes just barely.
And, as such, all voices count -- not just his.
Had he or his president perhaps proven any of their prior claims of omniscience — about Osama Bin Laden’s plans five years ago, about Saddam Hussein’s weapons four years ago, about Hurricane Katrina’s impact one year ago — we all might be able to swallow hard, and accept their “omniscience” as a bearable, even useful recipe, of fact, plus ego.
But, to date, this government has proved little besides its own arrogance, and its own hubris.
Mr. Rumsfeld is also personally confused, morally or intellectually, about his own standing in this matter. From Iraq to Katrina, to the entire “Fog of Fear” which continues to envelop this nation, he, Mr. Bush, Mr. Cheney, and their cronies have — inadvertently or intentionally — profited and benefited, both personally, and politically.
And yet he can stand up, in public, and question the morality and the intellect of those of us who dare ask just for the receipt for the Emporer’s New Clothes?
In what country was Mr. Rumsfeld raised? As a child, of whose heroism did he read? On what side of the battle for freedom did he dream one day to fight? With what country has he confused the United States of America?
The confusion we -- as its citizens— must now address, is stark and forbidding.
But variations of it have faced our forefathers, when men like Nixon and McCarthy and Curtis LeMay have darkened our skies and obscured our flag. Note -- with hope in your heart — that those earlier Americans always found their way to the light, and we can, too.
The confusion is about whether this Secretary of Defense, and this administration, are in fact now accomplishing what they claim the terrorists seek: The destruction of our freedoms, the very ones for which the same veterans Mr. Rumsfeld addressed yesterday in Salt Lake City, so valiantly fought.
And about Mr. Rumsfeld’s other main assertion, that this country faces a “new type of fascism.”
As he was correct to remind us how a government that knew everything could get everything wrong, so too was he right when he said that -- though probably not in the way he thought he meant it.
This country faces a new type of fascism - indeed.
Although I presumptuously use his sign-off each night, in feeble tribute, I have utterly no claim to the words of the exemplary journalist Edward R. Murrow.
But never in the trial of a thousand years of writing could I come close to matching how he phrased a warning to an earlier generation of us, at a time when other politicians thought they (and they alone) knew everything, and branded those who disagreed: “confused” or “immoral.”
Thus, forgive me, for reading Murrow, in full:
“We must not confuse dissent with disloyalty,” he said, in 1954. “We must remember always that accusation is not proof, and that conviction depends upon evidence and due process of law.
“We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men, not from men who feared to write, to speak, to associate, and to defend causes that were for the moment unpopular.”
And so good night, and good luck.
Murrow’s McCarthy broadcast did not bring an end to McCarthy or McCarthyism, but it brought the nation’s attention to this blot on our history and traditions. McCarthy’s political demise followed not long afterwards.
We should all devoutly pray that Olbermann’s words have a similar effect on Mr. Rumsfeld and his boss.
And on their on-air megaphones, starting with Bill O’Reilly.
People who are too young to remember the 1930s, 40s, and 50s may not know that the airwaves were filled with hysterical, fear-mongering voices long before we ever heard of Bill O’Reilly.
Back then, the airwaves were radio waves. Nightly, millions of families gathered before their Radiolas and Emersons to listen to the news. There were such “commentators” as Lowell Thomas, Gabriel Heater and H.V. Kaltenborn, whose notion of news consisted largely of reading press releases from the Republican National Committee. On Sunday evenings, there was Walter Winchell, a gossip columnist turned world affairs authority, who always began his program with the greeting, “Good evening, Mr. and Mrs. America and all the ships at sea.” Winchell’s rabid anti-Roosevelt and anti-New Deal views were barely concealed in his staccato delivery.
Then there was Boake Carter, a certifiable wing-nut who was for a time the country’s preeminent news commentator. The British-accented Carter had higher ratings than any of the other radio voices. His enemy was anything liberal. He was an apoplectic isolationist who belonged to an Anti-Semitic organization. One of Carter’s claims was that the sinking of an American gunboat by the Japanese on a river in China was part of a secret plot by President Roosevelt to plunge the country into a war in Asia. As Carter became increasingly irrational, pressure on CBS and his sponsor, General Foods, grew and CBS canceled his newscast. He later got a three-times-a-week commentary program on the Mutual Network, but was soon moved out of prime time. His rise was meteoric, but his fall was even faster.
But even in these dark days of no-nothing journalism, there were bright spots. One of the brightest was Edward R. Murrow, who set the standard for television journalism. His calm and courageous reporting captured our nation's and the world's attention during the German Blitz of Great Britain in 1940 and 1941. Millions of Americans sat by their radios to hear Murrow’s deep, sonorous voice begin, as he began all of his wartime broadcasts, “This is London.”
In 1954, at the height of the McCarthy era paranoia, Murrow produced the program that, more than any other single broadcast, has come to define him: A televised critique of Wisconsin Senator Joseph McCarthy.
There’s a reason I cite all this old radio days history. Then, as now, there was little and largely ineffective public push-back against right-wing radio “news.” Then, as now, networks controlled the airwaves, and sponsors controlled the networks. Today, we have television as well as radio. And today, both are still controlled by large corporate interests – owners and sponsors.
The impact of today’s TV and radio “news” has been well-documented. The nightly news programs of the major broadcast networks are caricatures of the cult of “objectivity,” in which anchors feel obliged to present the views of “both sides” of an issue, even when they know one side is peddling falsehoods. In both broadcast and cable outlets, the line between news, commentary and entertainment is no longer decipherable. Which gives us faux history disguised as “docudramas” like ABC’s “The Road to 9/11.” And since a majority of Americans still get most of their “news” from the “fair, balanced and unafraid” Fox Network, there is no mystery about why a large minority of us still thinks Saddam Hussein was responsible for the terrorist attacks depicted in that deeply flawed production.
All of which makes Keith Olbermann an even more remarkable phenomenon. Most remarkable is that Olby is still on the air, because for the past few years he has made a target of Bill O’Reilly, whose reactionary and often incoherent rants have made him not just a broadcaster but a powerful industry.
Well, there are no more Ed Murrows around. Or Walter Cronkites either. Keith Olbermann is virtually the only progressive voice available to us on either broadcast or cable.
And never was that truth more apparent than in his blistering critique of Defense Secretary Donald Rumsfeld’s recent American Legion speech, in which Rumsfeld drew a parallel between those who disagree with the Bush Administration and those who appeased Hitler in the 1930s.
So unusual in our time is Olbermann’s commentary on Rumsfeld that it is worth repeating here in full. This is what he said:
Feeling Morally, Intellectually Confused?
The man who sees absolutes, where all other men see nuances and shades of meaning, is either a prophet, or a quack.
Donald H. Rumsfeld is not a prophet.
Mr. Rumsfeld’s remarkable speech to the American Legion yesterday demands the deep analysis—and the sober contemplation—of every American.
For it did not merely serve to impugn the morality or intelligence -- indeed, the loyalty -- of the majority of Americans who oppose the transient occupants of the highest offices in the land. Worse, still, it credits those same transient occupants -- our employees -- with a total omniscience; a total omniscience which neither common sense, nor this administration’s track record at home or abroad, suggests they deserve.
Dissent and disagreement with government is the life’s blood of human freedom; and not merely because it is the first roadblock against the kind of tyranny the men Mr. Rumsfeld likes to think of as “his” troops still fight, this very evening, in Iraq.
It is also essential. Because just every once in awhile it is right and the power to which it speaks, is wrong.
In a small irony, however, Mr. Rumsfeld’s speechwriter was adroit in invoking the memory of the appeasement of the Nazis. For in their time, there was another government faced with true peril—with a growing evil—powerful and remorseless.
That government, like Mr. Rumsfeld’s, had a monopoly on all the facts. It, too, had the “secret information.” It alone had the true picture of the threat. It too dismissed and insulted its critics in terms like Mr. Rumsfeld’s -- questioning their intellect and their morality.
That government was England’s, in the 1930’s.
It knew Hitler posed no true threat to Europe, let alone England.
It knew Germany was not re-arming, in violation of all treaties and accords.
It knew that the hard evidence it received, which contradicted its own policies, its own conclusions — its own omniscience -- needed to be dismissed.
The English government of Neville Chamberlain already knew the truth.
Most relevant of all — it “knew” that its staunchest critics needed to be marginalized and isolated. In fact, it portrayed the foremost of them as a blood-thirsty war-monger who was, if not truly senile, at best morally or intellectually confused.
That critic’s name was Winston Churchill.
Sadly, we have no Winston Churchills evident among us this evening. We have only Donald Rumsfelds, demonizing disagreement, the way Neville Chamberlain demonized Winston Churchill.
History — and 163 million pounds of Luftwaffe bombs over England — have taught us that all Mr. Chamberlain had was his certainty — and his own confusion. A confusion that suggested that the office cannot only make the man, but that the office can also make the facts.
Thus, did Mr. Rumsfeld make an apt historical analogy.
Excepting the fact, that he has the battery plugged in backwards.
His government, absolute -- and exclusive -- in its knowledge, is not the modern version of the one which stood up to the Nazis.
It is the modern version of the government of Neville Chamberlain.
But back to today’s Omniscient ones.
That, about which Mr. Rumsfeld is confused is simply this: This is a Democracy. Still. Sometimes just barely.
And, as such, all voices count -- not just his.
Had he or his president perhaps proven any of their prior claims of omniscience — about Osama Bin Laden’s plans five years ago, about Saddam Hussein’s weapons four years ago, about Hurricane Katrina’s impact one year ago — we all might be able to swallow hard, and accept their “omniscience” as a bearable, even useful recipe, of fact, plus ego.
But, to date, this government has proved little besides its own arrogance, and its own hubris.
Mr. Rumsfeld is also personally confused, morally or intellectually, about his own standing in this matter. From Iraq to Katrina, to the entire “Fog of Fear” which continues to envelop this nation, he, Mr. Bush, Mr. Cheney, and their cronies have — inadvertently or intentionally — profited and benefited, both personally, and politically.
And yet he can stand up, in public, and question the morality and the intellect of those of us who dare ask just for the receipt for the Emporer’s New Clothes?
In what country was Mr. Rumsfeld raised? As a child, of whose heroism did he read? On what side of the battle for freedom did he dream one day to fight? With what country has he confused the United States of America?
The confusion we -- as its citizens— must now address, is stark and forbidding.
But variations of it have faced our forefathers, when men like Nixon and McCarthy and Curtis LeMay have darkened our skies and obscured our flag. Note -- with hope in your heart — that those earlier Americans always found their way to the light, and we can, too.
The confusion is about whether this Secretary of Defense, and this administration, are in fact now accomplishing what they claim the terrorists seek: The destruction of our freedoms, the very ones for which the same veterans Mr. Rumsfeld addressed yesterday in Salt Lake City, so valiantly fought.
And about Mr. Rumsfeld’s other main assertion, that this country faces a “new type of fascism.”
As he was correct to remind us how a government that knew everything could get everything wrong, so too was he right when he said that -- though probably not in the way he thought he meant it.
This country faces a new type of fascism - indeed.
Although I presumptuously use his sign-off each night, in feeble tribute, I have utterly no claim to the words of the exemplary journalist Edward R. Murrow.
But never in the trial of a thousand years of writing could I come close to matching how he phrased a warning to an earlier generation of us, at a time when other politicians thought they (and they alone) knew everything, and branded those who disagreed: “confused” or “immoral.”
Thus, forgive me, for reading Murrow, in full:
“We must not confuse dissent with disloyalty,” he said, in 1954. “We must remember always that accusation is not proof, and that conviction depends upon evidence and due process of law.
“We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men, not from men who feared to write, to speak, to associate, and to defend causes that were for the moment unpopular.”
And so good night, and good luck.
Murrow’s McCarthy broadcast did not bring an end to McCarthy or McCarthyism, but it brought the nation’s attention to this blot on our history and traditions. McCarthy’s political demise followed not long afterwards.
We should all devoutly pray that Olbermann’s words have a similar effect on Mr. Rumsfeld and his boss.
And on their on-air megaphones, starting with Bill O’Reilly.
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