By William Fisher
President George W. Bush’s critics are charging that he is attempting to use a “backdoor signing statement” to thwart the will of Congress to help lift the veil of secrecy that has shrouded the U.S. Government for the past seven years.
In August of last year, Congress passed the Open Government Act. The measure established a new Office of Government Information within the National Archives and Records Administration (NARA), an independent Federal agency charged with preserving and documenting government and historical records and increasing public access to those documents. The office was to be headed by an ombudsman to oversee disputes over the Freedom of Information Act (FOIA), avoid unnecessary litigation, and monitor the way Department of Justice (DOJ) implements that law.
President Bush signed the measure in December 2007. But when he submitted his $3.1 trillion budget proposal to Congress, no funds were included for the new program. Instead, the funding was hidden deep within the budget appendix under the Department of Commerce -- on page 239 of the 1,314-page document – and shifted the new office to the Department of Justice (DOJ).
The Chairman of the Senate Judiciary Committee, Vermont Democrat Sen. Patrick Leahy, one of the original cosponsors of the Open Government Act, said, "Such a move is not only contrary to the express intent of the Congress, but it is also contrary to the very purpose of this legislation — to ensure the timely and fair resolution of Americans’ FOIA requests."
The reason: The DOJ is the department charged with defending agencies accused of inappropriately withholding documents requested under the FOIA. This gives it a bias in favor of federal agencies, making it both judge and jury.
According to Sean Moulton, Director of Federal Information Policy for OMB Watch, a not-for-profit government watchdog group, “The president is definitely using his budget proposal to try and relocate the FOIA Ombudsman office (OGIS) to the DOJ. It is similar to signing statements in that it is the president's attempt to alter implementation of a law as it was laid out by congress.”
Leahy also noted DOJ's "abysmal record on FOIA compliance" over the past seven years as another reason the agency makes a poor choice for the location of OGIS.
The Freedom of Information Act, signed into law by President Lyndon B. Johnson in 1966, allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government.
In 2001, Attorney General John Ashcroft issued a memo stating that the DOJ would defend in court any federal agency that withheld information on justifiable grounds. Previously, the standard was that the presumption was for disclosure. The new law restored the previous presumption.
Throughout his administration, President Bush has used so-called “signing statements,” rather than the budget, to modify acts of Congress he finds objectionable. Perhaps the best-known of these was issued after he signed the so-called McCain Amendment to the Detainee Treatment Act of 2005. That measure was intended to prohibit inhumane treatment of prisoners, including prisoners at Guantanamo Bay; and required military interrogations to be performed according to the Code of Military Justice. After signing the law, Bush issued a signing statement saying he would interpret the law “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief.”
Such statements have become a hallmark of the Bush Administration. From the inception of the Republic until 2000, presidents produced fewer than 600 signing. Since 2001, President Bush has objected on constitutional grounds to sections of more than 750 laws.
But critics of the Bush Administration say they are not surprised at the president’s use of the budget to thwart the will of congress. They see the tactic as part of a pattern of restricting access to information. They cite the growth of public requests for information under the Freedom of Information over the last six years. In 2006, the total number of FOIA requests received in 2006 was 21,412,736, substantially larger than in 2005.
And, according to an audit conducted in January 2007 by the National Security Archive (NSA), an independent non-governmental research institute and library located at The George Washington University which collects and publishes declassified documents obtained through FOIA, agency backlogs remain significant. One FOIA request has now been pending for more than 20 years. The statutory response time is 20 business days.
The Bush Administration has refused to release information on a wide range of subjects, including the secret meetings of Vice President Dick Cheney’s energy policy task force. It has ordered federal Websites to remove much of the information they had posted that the Administration believed could be sensitive. It issued a controversial memo limiting access to records under the Presidential Records Act in November 2001, which allowed former Presidents and Vice-Presidents to prevent access to records. And it refused to disclose information on the Patriot Act and the names of those arrested after the attacks of September 11, 2001.
Many of those denied access to information have sued the government. Among the most widely publicized was the suit brought by a group of advocacy organizations including the American Civil Liberties Union (ACLU), the Center for Constitutional Rights (CCR), and others, to force the Department of Defense (DOD) to turn over documents relating to the harsh interrogation methods used against detainees at Guantanamo Bay, Cuba. The suit yielded hundreds of thousands of documents, including reports by agents of the Federal Bureau of Investigation (FBI) confirming such treatment.
Open-government advocates express varying levels of confidence in the proposed new Ombudsman’s importance. Steven Aftergood, head of the Government Secrecy Project for the Federation of American Scientists, told us he doesn’t have “high expectations of the ombudsman's office, regardless of where it is located.” He asked, “Is an official from the National Archives really going to intervene on my behalf when the CIA stubbornly refuses to process one of my requests? Would it make a difference if he or she did? I tend to doubt it.”
OMB Watch’s Moulton takes a different view. He told us, “I firmly believe Congress got it right when they assigned the job to the National Archives, which has better objectivity on FOIA disputes and greater experience in managing the disclosure of documents. Justice's traditional position of defending agencies against FOIA lawsuits, means a bias to side with agencies in disputes likely exists.”
“The office's direct clout with agencies will derive from the level of support the Administration provides. This will be tied directly to how high a priority the next administration places on disclosure and transparency,” he added.
But both agree that “it is important that the law be implemented as written. Any effort by the Administration to deviate from the terms of a statute should be opposed, no matter how trivial it might be, because the law is the law.”
And both point out that the president’s budget action “is not a done deal.” Aftergood says, “Congress can appropriate funds for the ombudsman to be expended solely at the Archives, and can prohibit their use by Justice.”
OMB Watch’s Moulton agrees. He told us, “Congress can, and in many ways always does, deviate from the President's proposed budget. The question is whether congress will allocate money to the National Archives for the office even though the President didn't request it.”
Saturday, February 16, 2008
Friday, February 15, 2008
GITMO: JUSTICE OR SHOW TRIALS
By William Fisher
As the U.S. moves toward the death-sentence trials of six suspected terrorists at Guantanamo Bay, Cuba, legal scholars and human rights advocates are raising questions not only about the process that led to the prosecutions but also about the Bush Administration’s motives in bringing the charges now and the credibility of the trials themselves.
The charges filed against the six, including alleged Sept. 11 mastermind Khalid Sheik Mohammed, outline a litany of war crimes and include conspiracy, murder, attacking civilians, terrorism and supporting terrorism. All six suspects are being held at Guantanamo Bay, Cuba, and the military plans to try the six together. If convicted, they would likely be executed at Guantanamo.
Before being shipped to Guantanamo, five of the defendants were held without charges or legal representation by the U.S. Central Intelligence Agency in secret prisons in Eastern Europe and elsewhere and reportedly subjected to torture.
The Bush Administration has acknowledged that at least one of the defendants, Mr. Mohammed, the reported “mastermind” of the September 11, 2001 attack on the World Trade Center and Pentagon, was subjected to “waterboarding” while in custody.
Waterboarding, a technique that simulates drowning, has been acknowledged as torture for hundreds of years. During World War Two, U.S. authorities prosecuted Japanese soldiers for using the practice against American prisoners of war. The newly-appointed U.S. Attorney General, Michael Mukasey, has declined to say whether waterboarding is torture.
Vice President Dick Cheney has vigorously defended the use of waterboarding and other harsh interrogation techniques, referring to them as “a tougher program for a very few tougher customers.”
Of the six men charged, Mr. Mohammed and four others were held for as long as three years in the secret C.I.A. prisons that were part of what the agency calls its “high-value terrorist interrogation program.” The prisons were established in 2002, but the administration did not publicly reveal their existence until 2006, when Mr. Mohammed and other detainees were moved from the C.I.A. facilities to the military prison in Guantánamo Bay, Cuba.
Military authorities have declared that no evidence obtained through torture will be used at the trials.
But many legal experts, including Columbia University law professor Scott Horton, are questioning whether the government can convict the six without using evidence obtained through torture.
Horton also told IPS he believes the process used to establish the Military Commissions -- criminal courts run by the U.S. armed forces -- is likely to result in what says will be “a series of show trials” timed to strengthen the Republican Party’s chances in the 2008 presidential election.
Horton is one of a large group of lawyers and legal scholars who are questioning the government’s motives and well as its timing in deciding to move ahead with the trials.
He added, “After being held for six years, there is a suspicion that the timing of trials is being ‘politically manipulated’ to coincide with the 2008 presidential election. He said he feared the result will be a case “bordering on a show trial."
This viewed is shared by Michael Ratner, president of the Center for Constitutional Rights (CCR), a New York-based legal advocacy group, which represents one of the defendants, Mohammad al Qahtani, who has been held at Guantanamo for six years and claims to have been tortured during that time.
Ratner told IPS that the Military Commission system “has none of the guarantees of regular trials. Coerced and hearsay evidence can be used. There is no jury only a group of military officers and the judge is appointed by the Bush administration. Much of the trial can be held in secret and the defendant does not get to see all of the evidence. After this sham process the defendant if convicted can receive the death penalty. There is a barbarity to the actions of the Bush administration that is without precedent.”
Many military lawyers have expressed similar views. For example, the head prosecutor at Guantánamo, Colonel Morris Davis, resigned when he was placed directly under the command of the General Counsel of the Department of Defense, a principal author of the military commissions system.
And lifelong Republican John Hutson, a retired Judge Advocate General, has expressed increasing frustration with the Bush administration's treatment of detainees at Guantanamo Bay. Hutson has become a leading voice among former military officials opposing Bush policies on Guantanamo Bay and torture, worried about the precedent it would set for future conflicts.
But the Bush Administration argues that ordinary courts are not equipped to handle the sensitive national security considerations involved in trying top
terrorists.
A spokesman for the Pentagon, Air Force Brig. Gen. Thomas W. Hartmann, a Defense Department legal adviser, said the trials will be "as open as possible,", and the accused will have the right to call their own witnesses, cross-examine prosecution witnesses and see the evidence presented against them.
"There will be no secret trials," he said. He added that the defendants will be tried by a 12-member military commission, which must reach a unanimous verdict. A decision to impose a capital sentence also must be unanimous, he said.
But Hartmann declined to answer questions about the admissibility of evidence
obtained by waterboarding, which the CIA has acknowledged using to extract information from one of those now being charged.
The procedures of the military commissions have been repeatedly challenged in U.S. civilian courts, resulting in a number of stinging defeats for the Bush Administration and contributing to the delays in beginning prosecutions.
The legal saga began in 2001, when President Bush issued an executive order establishing military commissions to try those captured in the “War on Terror.” But in 2004, a federal judge ruled that Salim Hamdan – accused of being a driver of Osama bin Laden – could not be tried by a commission established by an executive order. Only an act of congress, the court suggested, could be legal.
So in December 2005, a Republican-controlled congress passed the Detainee Treatment Act of 2005 (DTA). It stripped U.S. courts of jurisdiction over habeas corpus petitions filed on behalf of Guantánamo detainees challenging the reason for their detention and vested exclusive review of final decisions of military commissions in a single circuit court.
A year later, an appeals court overturned the Hamdan decision. And a year after that, the Supreme Court reversed the appeals court decision. The High Court ruled that military commissions, as defined under the President’s executive order, violated military law and the Geneva Conventions.
Congress then hurriedly enacted the Military Commissions Act of 2005, which President Bush signed into law in early 2006. That law, which is still under challenge in the courts, became the basis of the current prosecutions.
The forthcoming trials have also generated considerable interest abroad. For example, the influential British newspaper, The Independent, wrote last month, “The decision to use Mohammed and the others as guinea-pigs in a constitutionally dubious legal proceeding is likely to trigger a firestorm of anti-American sentiment in the Islamic world and spark a fractious domestic debate in an already highly charged presidential election year.”
Concern about the credibility of the U.S. has also been voiced by many American legal scholars.
David Cole, one of America’s preeminent constitutional authorities, told IPS, “For better or worse, the U.S. is a world leader on matters of human rights. When the US violates human rights in the fight against terrorism, it sends a message to autocrats and dictators worldwide that they, too, can deny human rights in the name of counterterrorism.”
This viewed was echoed by he CCR’s Ratner, who told IPS, “These trials are important because the U.S., a country that often criticizes torture and military tribunals in other countries such as Nigeria and Turkey is now using torture and trials outside its normal system to try alleged 9/11 conspirators.”
And This view was echoed by Ratner, who said: "These trials are important because the U.S., a country that often criticises torture and military tribunals in other countries -- such as Nigeria and Turkey -- is now using torture and trials outside its normal system to try the alleged Sep. 11 conspirators.
“These trials, if they ever do occur, cannot deliver justice. The use of secret evidence, hearsay evidence (where the accused does not have the opportunity to cross-examine the witness against him), and evidence possibly gained through torture and other cruel and inhuman interrogation techniques assures that the trials will not be fair,” he told us.
Gabor Rona, International Legal Director for legal advocacy group Human Rights First, concurs. He told us, “This process was designed not to do justice, but to assure convictions. If it is justice that is sought, then there is little reason for inventing a new system of trials where everything is uncertain and the rules are made up as the cases proceed. If it is justice that is sought, there is little logic in casting aside the legal architecture that has served the US well for over 200 years. Both before and since 9/11, America's normal criminal justice system has handled dozens of often difficult cases involving allegations of international terrorism, using established rules consistent with international principles of fair trial.”
He added, “These trials will be a stain on America's reputation for fairness. These trials will harm US relations with the rest of the world, will give ammunition to those who promote international terrorism, and will setback the cause of human rights values around the world.”
As the U.S. moves toward the death-sentence trials of six suspected terrorists at Guantanamo Bay, Cuba, legal scholars and human rights advocates are raising questions not only about the process that led to the prosecutions but also about the Bush Administration’s motives in bringing the charges now and the credibility of the trials themselves.
The charges filed against the six, including alleged Sept. 11 mastermind Khalid Sheik Mohammed, outline a litany of war crimes and include conspiracy, murder, attacking civilians, terrorism and supporting terrorism. All six suspects are being held at Guantanamo Bay, Cuba, and the military plans to try the six together. If convicted, they would likely be executed at Guantanamo.
Before being shipped to Guantanamo, five of the defendants were held without charges or legal representation by the U.S. Central Intelligence Agency in secret prisons in Eastern Europe and elsewhere and reportedly subjected to torture.
The Bush Administration has acknowledged that at least one of the defendants, Mr. Mohammed, the reported “mastermind” of the September 11, 2001 attack on the World Trade Center and Pentagon, was subjected to “waterboarding” while in custody.
Waterboarding, a technique that simulates drowning, has been acknowledged as torture for hundreds of years. During World War Two, U.S. authorities prosecuted Japanese soldiers for using the practice against American prisoners of war. The newly-appointed U.S. Attorney General, Michael Mukasey, has declined to say whether waterboarding is torture.
Vice President Dick Cheney has vigorously defended the use of waterboarding and other harsh interrogation techniques, referring to them as “a tougher program for a very few tougher customers.”
Of the six men charged, Mr. Mohammed and four others were held for as long as three years in the secret C.I.A. prisons that were part of what the agency calls its “high-value terrorist interrogation program.” The prisons were established in 2002, but the administration did not publicly reveal their existence until 2006, when Mr. Mohammed and other detainees were moved from the C.I.A. facilities to the military prison in Guantánamo Bay, Cuba.
Military authorities have declared that no evidence obtained through torture will be used at the trials.
But many legal experts, including Columbia University law professor Scott Horton, are questioning whether the government can convict the six without using evidence obtained through torture.
Horton also told IPS he believes the process used to establish the Military Commissions -- criminal courts run by the U.S. armed forces -- is likely to result in what says will be “a series of show trials” timed to strengthen the Republican Party’s chances in the 2008 presidential election.
Horton is one of a large group of lawyers and legal scholars who are questioning the government’s motives and well as its timing in deciding to move ahead with the trials.
He added, “After being held for six years, there is a suspicion that the timing of trials is being ‘politically manipulated’ to coincide with the 2008 presidential election. He said he feared the result will be a case “bordering on a show trial."
This viewed is shared by Michael Ratner, president of the Center for Constitutional Rights (CCR), a New York-based legal advocacy group, which represents one of the defendants, Mohammad al Qahtani, who has been held at Guantanamo for six years and claims to have been tortured during that time.
Ratner told IPS that the Military Commission system “has none of the guarantees of regular trials. Coerced and hearsay evidence can be used. There is no jury only a group of military officers and the judge is appointed by the Bush administration. Much of the trial can be held in secret and the defendant does not get to see all of the evidence. After this sham process the defendant if convicted can receive the death penalty. There is a barbarity to the actions of the Bush administration that is without precedent.”
Many military lawyers have expressed similar views. For example, the head prosecutor at Guantánamo, Colonel Morris Davis, resigned when he was placed directly under the command of the General Counsel of the Department of Defense, a principal author of the military commissions system.
And lifelong Republican John Hutson, a retired Judge Advocate General, has expressed increasing frustration with the Bush administration's treatment of detainees at Guantanamo Bay. Hutson has become a leading voice among former military officials opposing Bush policies on Guantanamo Bay and torture, worried about the precedent it would set for future conflicts.
But the Bush Administration argues that ordinary courts are not equipped to handle the sensitive national security considerations involved in trying top
terrorists.
A spokesman for the Pentagon, Air Force Brig. Gen. Thomas W. Hartmann, a Defense Department legal adviser, said the trials will be "as open as possible,", and the accused will have the right to call their own witnesses, cross-examine prosecution witnesses and see the evidence presented against them.
"There will be no secret trials," he said. He added that the defendants will be tried by a 12-member military commission, which must reach a unanimous verdict. A decision to impose a capital sentence also must be unanimous, he said.
But Hartmann declined to answer questions about the admissibility of evidence
obtained by waterboarding, which the CIA has acknowledged using to extract information from one of those now being charged.
The procedures of the military commissions have been repeatedly challenged in U.S. civilian courts, resulting in a number of stinging defeats for the Bush Administration and contributing to the delays in beginning prosecutions.
The legal saga began in 2001, when President Bush issued an executive order establishing military commissions to try those captured in the “War on Terror.” But in 2004, a federal judge ruled that Salim Hamdan – accused of being a driver of Osama bin Laden – could not be tried by a commission established by an executive order. Only an act of congress, the court suggested, could be legal.
So in December 2005, a Republican-controlled congress passed the Detainee Treatment Act of 2005 (DTA). It stripped U.S. courts of jurisdiction over habeas corpus petitions filed on behalf of Guantánamo detainees challenging the reason for their detention and vested exclusive review of final decisions of military commissions in a single circuit court.
A year later, an appeals court overturned the Hamdan decision. And a year after that, the Supreme Court reversed the appeals court decision. The High Court ruled that military commissions, as defined under the President’s executive order, violated military law and the Geneva Conventions.
Congress then hurriedly enacted the Military Commissions Act of 2005, which President Bush signed into law in early 2006. That law, which is still under challenge in the courts, became the basis of the current prosecutions.
The forthcoming trials have also generated considerable interest abroad. For example, the influential British newspaper, The Independent, wrote last month, “The decision to use Mohammed and the others as guinea-pigs in a constitutionally dubious legal proceeding is likely to trigger a firestorm of anti-American sentiment in the Islamic world and spark a fractious domestic debate in an already highly charged presidential election year.”
Concern about the credibility of the U.S. has also been voiced by many American legal scholars.
David Cole, one of America’s preeminent constitutional authorities, told IPS, “For better or worse, the U.S. is a world leader on matters of human rights. When the US violates human rights in the fight against terrorism, it sends a message to autocrats and dictators worldwide that they, too, can deny human rights in the name of counterterrorism.”
This viewed was echoed by he CCR’s Ratner, who told IPS, “These trials are important because the U.S., a country that often criticizes torture and military tribunals in other countries such as Nigeria and Turkey is now using torture and trials outside its normal system to try alleged 9/11 conspirators.”
And This view was echoed by Ratner, who said: "These trials are important because the U.S., a country that often criticises torture and military tribunals in other countries -- such as Nigeria and Turkey -- is now using torture and trials outside its normal system to try the alleged Sep. 11 conspirators.
“These trials, if they ever do occur, cannot deliver justice. The use of secret evidence, hearsay evidence (where the accused does not have the opportunity to cross-examine the witness against him), and evidence possibly gained through torture and other cruel and inhuman interrogation techniques assures that the trials will not be fair,” he told us.
Gabor Rona, International Legal Director for legal advocacy group Human Rights First, concurs. He told us, “This process was designed not to do justice, but to assure convictions. If it is justice that is sought, then there is little reason for inventing a new system of trials where everything is uncertain and the rules are made up as the cases proceed. If it is justice that is sought, there is little logic in casting aside the legal architecture that has served the US well for over 200 years. Both before and since 9/11, America's normal criminal justice system has handled dozens of often difficult cases involving allegations of international terrorism, using established rules consistent with international principles of fair trial.”
He added, “These trials will be a stain on America's reputation for fairness. These trials will harm US relations with the rest of the world, will give ammunition to those who promote international terrorism, and will setback the cause of human rights values around the world.”
Wednesday, February 13, 2008
LET THE EAGLE WHORE
By William Fisher
Since this is the season of nominations – Grammies, Oscars, etc. – it’s time for me to disclose my choice for the winner of “The Most Outrageous Statement of the Year.”
Here’s the statement: George W. Bush has been "most respectful in terms of respecting the civil liberties and rights of individuals while engaged in the important task of fighting for freedom." The president “respects liberty so profoundly that he has protected it and has safeguarded civil liberties more than any other president in wartime that I know of.”
And the maker of that statement? Here’s a hint: He’s something of a singer – “Let The Eagle Soar” is among his favorites. And he’s also something of a prude: The government department he headed spent $8,000 on blue drapes to hide two giant, semi-nude art deco statues, one a female representing the “Spirit of Justice”, with its arms raised and a toga draped over its body, but a single breast exposed; the other a man depicting the “Majesty of Law” with a cloth covering his midsection.
You guessed it: Former U.S. Attorney General John Ashcroft.
Speaking to hundreds of Missouri Republicans attending the party's statewide Lincoln Days festivities last weekend, the one-time Missouri governor and senator said the president has been using security measures to protect freedoms, not to curb freedom.
"It is stunning to me that when the president of the United States, George W. Bush, simply says that we need to be able to monitor calls being made to terrorist territories, known geographies that are the source of terrorist activities, or known terrorists who are making calls into the United States … that some people see it as an infringement somehow, " Ashcroft said.
But how much credibility does the Bush first-term Attorney General have on the subject of protecting civil liberties and the rule of law?
Isn’t this the same guy who pressured Congress to hurriedly enact the USA Patriot Act, which gave astonishing powers to federal agencies to dramatically increase the government's surveillance, search-and-seizure and wiretapping authority?
Isn’t this the same guy who authorized DOJ officials to monitor the discussions that attorneys have with clients who are in federal custody, including those detained, but not charged with a criminal offense in violation of the First, Fourth, Fifth and Sixth Amendments to the Constitution?
Who rounded up and imprisoned over 1200 men of Middle Eastern descent based largely on pretextual immigration violations and refused to disclose their identity and location and the reason for their detention, while denying them fundamental due process rights? (The roundup produced some deportations, but NO criminal convictions.)
Who sought to question roughly 8,000 men of Middle Eastern descent, who were legal residents of the U.S., a flagrant form of racial profiling?
Who imposed a policy of selectively enforcing deportation orders against men from Middle Eastern countries?
Who helped draft the presidential order that created secret military tribunals to bypass the U.S. court system, contained significant due process violations, and allowed for the imposition of the death penalty?
Who initiated a project called Operation TIPS (Terrorist Information and Prevention System) to recruit and train a million volunteers (including postal workers, utility personnel and the like) in 10 cities who would be encouraged to report suspicious terrorist activity?
Who approved racial profiling guidelines that were little more than rhetorical smoke and mirrors, providing no rights or remedies and included a broad and largely undefined exception when ""national security" concerns came into play?
Who encouraged the 93 US Attorneys to lobby members of Congress who voted for an amendment to prohibit DOJ funds to be used to enforce ""sneak and peak"" warrants?
Who failed to bring any new cases against any police departments for police misconduct or abuse and attempted to change the definition of racial profiling to undermine future litigation?
Who killed a pilot program that provided federal money to pay for DNA testing to exonerate innocent inmates?
Who issued an order that certified federal agents to repeal the licenses of any doctor who prescribed lethal drugs for terminally ill patients?
Who further blurred the line between church and state by conducting daily sessions of prayer and Bible study at the DOJ, while being a major proponent of Bush's faith based initiative and working to create a legal theory that would withstand a constitutional challenge to direct federal funding of religious groups including churches, synagogues and mosques?
And who thumbed his nose at the First Amendment right to dissent by telling Congress that anyone who raised concerns about his actions would ""aid terrorists"" and ""give ammunition to America's enemies"?
In the wake of 9/11, it is understandable that the American people were traumatized and terrified that the next shoe would soon drop – on them. But John Ashcroft and his politically-appointed cronies at the Justice Department blatantly exploited that fear. They pandered to the worst instincts of the American people.
Let us not forget that it was John Ashcroft who hastily convened a taxpayer-financed satellite press conference while on a trip to Moscow to proclaim that the U.S. had arrested a man who planned to use a radiological “dirty bomb” to blow up apartment buildings in the U.S. (a charge that was nowhere to be found when American citizen Jose Padilla was finally put on trial after three years of virtually incommunicado imprisonment.)
And, speaking of cronies, let us note that Mr. Ashcroft’s loyalty to the president is not without its upside. Recently, the U.S. Attorney for the New Jersey, Christopher Christie, selected Ashcroft, his former boss, as one of four attorneys hired in a no-bid process to monitor five medical device manufacturers companies that New Jersey prosecutors had investigated for funneling kickbacks to orthopedic surgeons.
Ashcroft's contract will bring his legal and consulting firm between $27 million and $52 million for monitoring compliance at Indiana-based Zimmer Holdings, Inc.
So The Eagle will soar – all the way to the bank.
Since this is the season of nominations – Grammies, Oscars, etc. – it’s time for me to disclose my choice for the winner of “The Most Outrageous Statement of the Year.”
Here’s the statement: George W. Bush has been "most respectful in terms of respecting the civil liberties and rights of individuals while engaged in the important task of fighting for freedom." The president “respects liberty so profoundly that he has protected it and has safeguarded civil liberties more than any other president in wartime that I know of.”
And the maker of that statement? Here’s a hint: He’s something of a singer – “Let The Eagle Soar” is among his favorites. And he’s also something of a prude: The government department he headed spent $8,000 on blue drapes to hide two giant, semi-nude art deco statues, one a female representing the “Spirit of Justice”, with its arms raised and a toga draped over its body, but a single breast exposed; the other a man depicting the “Majesty of Law” with a cloth covering his midsection.
You guessed it: Former U.S. Attorney General John Ashcroft.
Speaking to hundreds of Missouri Republicans attending the party's statewide Lincoln Days festivities last weekend, the one-time Missouri governor and senator said the president has been using security measures to protect freedoms, not to curb freedom.
"It is stunning to me that when the president of the United States, George W. Bush, simply says that we need to be able to monitor calls being made to terrorist territories, known geographies that are the source of terrorist activities, or known terrorists who are making calls into the United States … that some people see it as an infringement somehow, " Ashcroft said.
But how much credibility does the Bush first-term Attorney General have on the subject of protecting civil liberties and the rule of law?
Isn’t this the same guy who pressured Congress to hurriedly enact the USA Patriot Act, which gave astonishing powers to federal agencies to dramatically increase the government's surveillance, search-and-seizure and wiretapping authority?
Isn’t this the same guy who authorized DOJ officials to monitor the discussions that attorneys have with clients who are in federal custody, including those detained, but not charged with a criminal offense in violation of the First, Fourth, Fifth and Sixth Amendments to the Constitution?
Who rounded up and imprisoned over 1200 men of Middle Eastern descent based largely on pretextual immigration violations and refused to disclose their identity and location and the reason for their detention, while denying them fundamental due process rights? (The roundup produced some deportations, but NO criminal convictions.)
Who sought to question roughly 8,000 men of Middle Eastern descent, who were legal residents of the U.S., a flagrant form of racial profiling?
Who imposed a policy of selectively enforcing deportation orders against men from Middle Eastern countries?
Who helped draft the presidential order that created secret military tribunals to bypass the U.S. court system, contained significant due process violations, and allowed for the imposition of the death penalty?
Who initiated a project called Operation TIPS (Terrorist Information and Prevention System) to recruit and train a million volunteers (including postal workers, utility personnel and the like) in 10 cities who would be encouraged to report suspicious terrorist activity?
Who approved racial profiling guidelines that were little more than rhetorical smoke and mirrors, providing no rights or remedies and included a broad and largely undefined exception when ""national security" concerns came into play?
Who encouraged the 93 US Attorneys to lobby members of Congress who voted for an amendment to prohibit DOJ funds to be used to enforce ""sneak and peak"" warrants?
Who failed to bring any new cases against any police departments for police misconduct or abuse and attempted to change the definition of racial profiling to undermine future litigation?
Who killed a pilot program that provided federal money to pay for DNA testing to exonerate innocent inmates?
Who issued an order that certified federal agents to repeal the licenses of any doctor who prescribed lethal drugs for terminally ill patients?
Who further blurred the line between church and state by conducting daily sessions of prayer and Bible study at the DOJ, while being a major proponent of Bush's faith based initiative and working to create a legal theory that would withstand a constitutional challenge to direct federal funding of religious groups including churches, synagogues and mosques?
And who thumbed his nose at the First Amendment right to dissent by telling Congress that anyone who raised concerns about his actions would ""aid terrorists"" and ""give ammunition to America's enemies"?
In the wake of 9/11, it is understandable that the American people were traumatized and terrified that the next shoe would soon drop – on them. But John Ashcroft and his politically-appointed cronies at the Justice Department blatantly exploited that fear. They pandered to the worst instincts of the American people.
Let us not forget that it was John Ashcroft who hastily convened a taxpayer-financed satellite press conference while on a trip to Moscow to proclaim that the U.S. had arrested a man who planned to use a radiological “dirty bomb” to blow up apartment buildings in the U.S. (a charge that was nowhere to be found when American citizen Jose Padilla was finally put on trial after three years of virtually incommunicado imprisonment.)
And, speaking of cronies, let us note that Mr. Ashcroft’s loyalty to the president is not without its upside. Recently, the U.S. Attorney for the New Jersey, Christopher Christie, selected Ashcroft, his former boss, as one of four attorneys hired in a no-bid process to monitor five medical device manufacturers companies that New Jersey prosecutors had investigated for funneling kickbacks to orthopedic surgeons.
Ashcroft's contract will bring his legal and consulting firm between $27 million and $52 million for monitoring compliance at Indiana-based Zimmer Holdings, Inc.
So The Eagle will soar – all the way to the bank.
Friday, February 08, 2008
KABUKI ON THE HILL
By William Fisher
The partisan political divide morphed into a chasm again this week as the House of Representatives Judiciary Committee convened to grill Attorney General Michael Mukasey for the first time since his confirmation hearings.
The ostensible objective of the hearing was “oversight.” But one has to wonder what, if anything, our elected representatives learned that everyone didn’t already know.
If there was a big winner in this all-too-familiar tableau, it was the audience, which got to enjoy some of America’s best Kabuki Theater.
The Democrats on the panel, under the velvet-voiced chairmanship of the patrician John Conyers of Michigan, clearly smelled blood in the water. Their menu was a litany of allegedly penetrating questions whose answers were totally predictable.
These covered such issues as whether the AG would open a criminal investigation of the CIA’s use of waterboarding, whether he thought waterboarding constituted torture, whether he would prosecute Bush’s chief of staff, Joshua Bolten, and former White House counsel Harriet Miers, for failing to show up in response to a congressional contempt citation, whether the telecom companies involved in the FISA controversy should receive retroactive immunity from prosecution for helping the government to snoop on American citizens, whether he thought the CIA destroyed their interrogation tapes simply to protect the spooks from prosecution – and lots more fun subjects.
Our elected representatives put on their most serious faces and asked their questions with just the right combination of gravitas and passion.
The AG, soft-spoken and seemingly unflappable, answered with his own mix of legalese and gravitas – at least a welcome change from the bumbling, confused and disingenuous ramblings of his predecessor, Alberto Gonzales.
But his answers were as predictable as the questions he was answering.
Take, for example, his response to the question of opening a criminal investigation into the CIA’s use of waterboarding.
No, he would not open such an investigation because a memorandum prepared at the time by the Department of Justice’s Office of Legal Counsel concluded that the practice was legal. An investigation would place the DOJ in the position of investigating procedures it had found to be lawful.
What was never asked: If the DOJ found waterboarding “legal at that time,” why was it stricken from the CIA’s menu of “enhanced interrogation” techniques? And if waterboarding become un-legal at some point, why and when?
And, no he would not let congress see the OLC memorandum because (a) it was classified and (b) it was covered by executive privilege.
And yet again, no, he would not prosecute Bolten and Miers because the president has the authority to instruct his senior aides not to comply with congressional subpoenas or contempt citations. It was a “separation of powers” issue, he said.
Mukasey then addressed the Foreign Intelligence Surveillance Act (FISA). He urged Congress to reauthorize the expiring law, including granting retroactive immunity to the private telecom companies who cooperated with the government to intercept, without warrants, telephone calls and emails the Administration believed involved terrorists.
The AG said the companies participated at the government’s request and believed their efforts to be “necessary and lawful.” Makes you wonder about Constitutional education of the army of lawyers who work for these telecom giants!
Maybe these corporate law types didn’t know that FISA requires the government to obtain warrants from its own special and highly secretive court before intercepting phone calls or emails involving Americans. That’s odd, because any first-year law student could tell you this requirement is based on the Fourth Amendment of the U.S. Constitution, which forbids unlawful searches and seizures.
And so it went on. And on. And on.
The Democrats got to ask their headline-hungry questions, looking less for answers than for TV soundbites. Good thing too, because the answers were few and far between.
But, not to be outdone, the Republican members of the Committee, led by the senior member of his party, Rep. Lamar Smith of Texas, had their own agenda: making the Bush Administration look, well, better. Like the Dems, GOP members’ leading questions came mostly in the form of statements.
For example, Rep. Smith asked Mukasey whether he would agree that “99 per cent of the American people would support harsh interrogation techniques on a known terrorist to save thousands of American lives.”
Mukasey suggested he didn’t know much about the 99 per cent and declined to answer.
Not to worry: the question got asked.
After hours of largely unilluminating ping pong law, the performance mercifully came to an end.
The Democrats got to score their points. The Republicans got to pay their party dues. Whereupon both sides rushed back to their offices to get their press releases out.
And the AG smiled and took his gravitas back to the DOJ.
Mission Accomplished!
The partisan political divide morphed into a chasm again this week as the House of Representatives Judiciary Committee convened to grill Attorney General Michael Mukasey for the first time since his confirmation hearings.
The ostensible objective of the hearing was “oversight.” But one has to wonder what, if anything, our elected representatives learned that everyone didn’t already know.
If there was a big winner in this all-too-familiar tableau, it was the audience, which got to enjoy some of America’s best Kabuki Theater.
The Democrats on the panel, under the velvet-voiced chairmanship of the patrician John Conyers of Michigan, clearly smelled blood in the water. Their menu was a litany of allegedly penetrating questions whose answers were totally predictable.
These covered such issues as whether the AG would open a criminal investigation of the CIA’s use of waterboarding, whether he thought waterboarding constituted torture, whether he would prosecute Bush’s chief of staff, Joshua Bolten, and former White House counsel Harriet Miers, for failing to show up in response to a congressional contempt citation, whether the telecom companies involved in the FISA controversy should receive retroactive immunity from prosecution for helping the government to snoop on American citizens, whether he thought the CIA destroyed their interrogation tapes simply to protect the spooks from prosecution – and lots more fun subjects.
Our elected representatives put on their most serious faces and asked their questions with just the right combination of gravitas and passion.
The AG, soft-spoken and seemingly unflappable, answered with his own mix of legalese and gravitas – at least a welcome change from the bumbling, confused and disingenuous ramblings of his predecessor, Alberto Gonzales.
But his answers were as predictable as the questions he was answering.
Take, for example, his response to the question of opening a criminal investigation into the CIA’s use of waterboarding.
No, he would not open such an investigation because a memorandum prepared at the time by the Department of Justice’s Office of Legal Counsel concluded that the practice was legal. An investigation would place the DOJ in the position of investigating procedures it had found to be lawful.
What was never asked: If the DOJ found waterboarding “legal at that time,” why was it stricken from the CIA’s menu of “enhanced interrogation” techniques? And if waterboarding become un-legal at some point, why and when?
And, no he would not let congress see the OLC memorandum because (a) it was classified and (b) it was covered by executive privilege.
And yet again, no, he would not prosecute Bolten and Miers because the president has the authority to instruct his senior aides not to comply with congressional subpoenas or contempt citations. It was a “separation of powers” issue, he said.
Mukasey then addressed the Foreign Intelligence Surveillance Act (FISA). He urged Congress to reauthorize the expiring law, including granting retroactive immunity to the private telecom companies who cooperated with the government to intercept, without warrants, telephone calls and emails the Administration believed involved terrorists.
The AG said the companies participated at the government’s request and believed their efforts to be “necessary and lawful.” Makes you wonder about Constitutional education of the army of lawyers who work for these telecom giants!
Maybe these corporate law types didn’t know that FISA requires the government to obtain warrants from its own special and highly secretive court before intercepting phone calls or emails involving Americans. That’s odd, because any first-year law student could tell you this requirement is based on the Fourth Amendment of the U.S. Constitution, which forbids unlawful searches and seizures.
And so it went on. And on. And on.
The Democrats got to ask their headline-hungry questions, looking less for answers than for TV soundbites. Good thing too, because the answers were few and far between.
But, not to be outdone, the Republican members of the Committee, led by the senior member of his party, Rep. Lamar Smith of Texas, had their own agenda: making the Bush Administration look, well, better. Like the Dems, GOP members’ leading questions came mostly in the form of statements.
For example, Rep. Smith asked Mukasey whether he would agree that “99 per cent of the American people would support harsh interrogation techniques on a known terrorist to save thousands of American lives.”
Mukasey suggested he didn’t know much about the 99 per cent and declined to answer.
Not to worry: the question got asked.
After hours of largely unilluminating ping pong law, the performance mercifully came to an end.
The Democrats got to score their points. The Republicans got to pay their party dues. Whereupon both sides rushed back to their offices to get their press releases out.
And the AG smiled and took his gravitas back to the DOJ.
Mission Accomplished!
Thursday, February 07, 2008
AT THE HOUSE OF MIRRORS
By William Fisher
Attorney General Michael Mukasey today refused to open a criminal investigation into the Central Intelligence Agency’s (CIA) use of waterboarding and other “enhanced interrogation techniques” or to let Congress see the memorandum prepared by the Department of Justice (DOJ) Office of Legal Counsel (OLC) that concluded that these practices were legal.
The DOJ found waterboarding “legal at that time,” Mukasey told the House of Representatives Judiciary Committee, but said the documents relating to that conclusion were classified. He added that no criminal investigation was feasible because it would place the DOJ in the position of investigating procedures it had found to be lawful.
At his confirmation hearings last October, Mukasey declined to say whether he thought waterboarding was torture.
Republican members of the Judiciary Committee, led by the senior member of his party, Rep. Lamar Smith of Texas, asked Mukasey whether he would agree that “99 per cent of the American people would support harsh interrogation techniques on a known terrorist to save thousands of American lives.” Mukasey declined to answer.
Mukasey also addressed the Foreign Intelligence Surveillance Act (FISA). He urged Congress to reauthorize the law, including granting retroactive immunity to private telecommunications companies which cooperated with the government to intercept, without warrants, telephone calls and emails the Administration believed involved terrorists.
He said the companies participated at the government’s request and believed their efforts to be “necessary and lawful.”
The issue of granting immunity to the telecom companies is at the center of the Senate’s current debate on the reauthorization of the FISA law, which is set to expire next week. The law requires the government to obtain warrants from a special FISA court before phone calls or emails involving Americans are intercepted. This requirement is based on the Fourth Amendment of the U.S. Constitution, which forbids unlawful searches and seizures.
The House hearing came at a time when the issue of interrogation techniques was grabbing headlines again after a period of relative silence. The headlines were triggered by the disclosure yesterday by White House spokesman Tony Fratto, who said that waterboarding is legal and that President Bush could authorize the CIA to resume using the simulated-drowning method under extraordinary circumstances.
Fratto said such extraordinary circumstances could include a "belief that an attack might be imminent."
In another surprise disclosure yesterday, CIA Director General Michael Hayden told a Congressional committee that waterboarding had been used by the agency as an interrogation technique against three detainees held in secret custody. The White House has always denied that the U.S. had engaged in torture but had never confirmed that waterboarding had been used.
The White House comments came a day after Hayden testified before a congressional committee that the agency had used waterboarding on Al Qaeda suspects in 2002 and 2003. He also identified three prisoners, including self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed, who he said were the only detainees subjected to the method.
Waterboarding refers to a practice that involves strapping down a prisoner, placing a cloth over his face and dousing him with water to simulate the sensation of drowning. The technique has been known since the Spanish Inquisition and has been the subject of a number of war crimes trials, including trials of Japanese soldiers who used waterboarding on American troops during World War Two.
The White House position on the issue is emblematic of its long-standing efforts to expand the power of the executive branch of government and push back against attempts by Congress to limit the president's authority.
Senate Democrats have joined numerous legal and human rights advocacy groups in demanding a government investigation into the matter to determine whether laws forbidding torture were broken. Today, Senate Majority Whip Richard J. Durbin, Illinois Democrat, told Mukasey in a letter that he would stall the nomination of U.S. District Judge Mark Filip in Chicago to be deputy attorney general until Mukasey responds to his request for a criminal investigation and other torture-related inquiries.
While the issues of waterboarding and other harsh interrogation techniques have rarely been discussed by those currently seeking their party’s presidential nomination, leading candidates have spoken out on the subject.
Despite her often-expressed opposition to torture, Hillary Clinton said in a meeting with the New York Daily News editorial board in October that waterboarding and other harsh interrogation practices are “acceptable in some circumstances.”
Asked about the "ticking time bomb" scenario, in which you've captured the terrorist and don't have time for a normal interrogation, she said there is a place for what she termed "severity." The conversation referred to waterboarding, hypothermia, and other techniques commonly described as torture.
"I have said that those are very rare but if they occur there has to be some lawful authority for pursuing that," she responded, adding, “There has to be some check and balance, some reporting.”
Her Democratic Party opponent, Sen. Barack Obama of Illinois, has said in speeches that if he becomes the nominee, his opponent “will not be able to say that I wavered on something as fundamental as whether or not it’s OK for America to use torture, because it’s never OK.”
Their leading Republican rival, Sen. John McCain of Arizona – who was tortured during his five years as a prisoner of war during the Vietnam conflict -- has been a consistent leader of efforts to outlaw waterboarding and other harsh interrogation methods. In a recent GOP presidential debate, McCain said it was inconceivable that "anyone could believe that [waterboarding is] not torture. It's in violation of the Geneva Convention. It's in violation of existing law."
Mc Cain has been an outspoken supporter of two laws banning the practices -- the so-called McCain Amendment to the Detainee Treatment Act of 2005, and the 2006 Military Commissions Act. These laws -- as well as a Supreme Court ruling on the treatment of detainees – have been widely interpreted as banning the CIA's use of extreme interrogation methods.
U.S. and international organizations have reacted angrily to the Administration’s positions. Amnesty International called for a full, independent and prompt criminal investigation. The organization also called for an investigation that goes beyond that initiated by the U.S. Attorney General last month into the destruction by the CIA of videotapes of interrogations, and is fully consistent with international standards
Amnesty’s Mary Shaw told us, “Waterboarding is indeed a form of torture. For this reason, the Army Field Manual expressly prohibits its use. It clearly violates U.S. and international laws against cruel, inhuman, or degrading treatment. No exceptions, no matter when it happened or under what circumstances.”
Amnesty is calling on Congress to “pass legislation that would ensure uniform interrogation standards for anyone in U.S. custody or control, anywhere in the world. By voting to restrict all U.S. agents to the interrogation techniques in the Army Field Manual, Congress can take a significant step towards preventing torture and ill treatment from occurring in the future, and towards restoring this country's moral leadership in the world.”
According to Amnesty’s Rob Freer, “It has become clear in recent years that the U.S. administration has interpreted U.S. and international law in ways that have sought to avoid the absolute prohibition of torture and other ill-treatment and that have facilitated impunity for human rights violations."
The United Nations also weighed in on the torture issue this week. Manfred Nowak, the U.N. Special Rapporteur on torture, blasted the White House for defending the use of waterboarding and urged the U.S. government to give up its defense of "unjustifiable" interrogation methods.
"This is absolutely unacceptable under international human rights law," he said. "Time has come that the government will actually acknowledge that they did something wrong and not continue trying to justify what is unjustifiable."
Attorney General Michael Mukasey today refused to open a criminal investigation into the Central Intelligence Agency’s (CIA) use of waterboarding and other “enhanced interrogation techniques” or to let Congress see the memorandum prepared by the Department of Justice (DOJ) Office of Legal Counsel (OLC) that concluded that these practices were legal.
The DOJ found waterboarding “legal at that time,” Mukasey told the House of Representatives Judiciary Committee, but said the documents relating to that conclusion were classified. He added that no criminal investigation was feasible because it would place the DOJ in the position of investigating procedures it had found to be lawful.
At his confirmation hearings last October, Mukasey declined to say whether he thought waterboarding was torture.
Republican members of the Judiciary Committee, led by the senior member of his party, Rep. Lamar Smith of Texas, asked Mukasey whether he would agree that “99 per cent of the American people would support harsh interrogation techniques on a known terrorist to save thousands of American lives.” Mukasey declined to answer.
Mukasey also addressed the Foreign Intelligence Surveillance Act (FISA). He urged Congress to reauthorize the law, including granting retroactive immunity to private telecommunications companies which cooperated with the government to intercept, without warrants, telephone calls and emails the Administration believed involved terrorists.
He said the companies participated at the government’s request and believed their efforts to be “necessary and lawful.”
The issue of granting immunity to the telecom companies is at the center of the Senate’s current debate on the reauthorization of the FISA law, which is set to expire next week. The law requires the government to obtain warrants from a special FISA court before phone calls or emails involving Americans are intercepted. This requirement is based on the Fourth Amendment of the U.S. Constitution, which forbids unlawful searches and seizures.
The House hearing came at a time when the issue of interrogation techniques was grabbing headlines again after a period of relative silence. The headlines were triggered by the disclosure yesterday by White House spokesman Tony Fratto, who said that waterboarding is legal and that President Bush could authorize the CIA to resume using the simulated-drowning method under extraordinary circumstances.
Fratto said such extraordinary circumstances could include a "belief that an attack might be imminent."
In another surprise disclosure yesterday, CIA Director General Michael Hayden told a Congressional committee that waterboarding had been used by the agency as an interrogation technique against three detainees held in secret custody. The White House has always denied that the U.S. had engaged in torture but had never confirmed that waterboarding had been used.
The White House comments came a day after Hayden testified before a congressional committee that the agency had used waterboarding on Al Qaeda suspects in 2002 and 2003. He also identified three prisoners, including self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed, who he said were the only detainees subjected to the method.
Waterboarding refers to a practice that involves strapping down a prisoner, placing a cloth over his face and dousing him with water to simulate the sensation of drowning. The technique has been known since the Spanish Inquisition and has been the subject of a number of war crimes trials, including trials of Japanese soldiers who used waterboarding on American troops during World War Two.
The White House position on the issue is emblematic of its long-standing efforts to expand the power of the executive branch of government and push back against attempts by Congress to limit the president's authority.
Senate Democrats have joined numerous legal and human rights advocacy groups in demanding a government investigation into the matter to determine whether laws forbidding torture were broken. Today, Senate Majority Whip Richard J. Durbin, Illinois Democrat, told Mukasey in a letter that he would stall the nomination of U.S. District Judge Mark Filip in Chicago to be deputy attorney general until Mukasey responds to his request for a criminal investigation and other torture-related inquiries.
While the issues of waterboarding and other harsh interrogation techniques have rarely been discussed by those currently seeking their party’s presidential nomination, leading candidates have spoken out on the subject.
Despite her often-expressed opposition to torture, Hillary Clinton said in a meeting with the New York Daily News editorial board in October that waterboarding and other harsh interrogation practices are “acceptable in some circumstances.”
Asked about the "ticking time bomb" scenario, in which you've captured the terrorist and don't have time for a normal interrogation, she said there is a place for what she termed "severity." The conversation referred to waterboarding, hypothermia, and other techniques commonly described as torture.
"I have said that those are very rare but if they occur there has to be some lawful authority for pursuing that," she responded, adding, “There has to be some check and balance, some reporting.”
Her Democratic Party opponent, Sen. Barack Obama of Illinois, has said in speeches that if he becomes the nominee, his opponent “will not be able to say that I wavered on something as fundamental as whether or not it’s OK for America to use torture, because it’s never OK.”
Their leading Republican rival, Sen. John McCain of Arizona – who was tortured during his five years as a prisoner of war during the Vietnam conflict -- has been a consistent leader of efforts to outlaw waterboarding and other harsh interrogation methods. In a recent GOP presidential debate, McCain said it was inconceivable that "anyone could believe that [waterboarding is] not torture. It's in violation of the Geneva Convention. It's in violation of existing law."
Mc Cain has been an outspoken supporter of two laws banning the practices -- the so-called McCain Amendment to the Detainee Treatment Act of 2005, and the 2006 Military Commissions Act. These laws -- as well as a Supreme Court ruling on the treatment of detainees – have been widely interpreted as banning the CIA's use of extreme interrogation methods.
U.S. and international organizations have reacted angrily to the Administration’s positions. Amnesty International called for a full, independent and prompt criminal investigation. The organization also called for an investigation that goes beyond that initiated by the U.S. Attorney General last month into the destruction by the CIA of videotapes of interrogations, and is fully consistent with international standards
Amnesty’s Mary Shaw told us, “Waterboarding is indeed a form of torture. For this reason, the Army Field Manual expressly prohibits its use. It clearly violates U.S. and international laws against cruel, inhuman, or degrading treatment. No exceptions, no matter when it happened or under what circumstances.”
Amnesty is calling on Congress to “pass legislation that would ensure uniform interrogation standards for anyone in U.S. custody or control, anywhere in the world. By voting to restrict all U.S. agents to the interrogation techniques in the Army Field Manual, Congress can take a significant step towards preventing torture and ill treatment from occurring in the future, and towards restoring this country's moral leadership in the world.”
According to Amnesty’s Rob Freer, “It has become clear in recent years that the U.S. administration has interpreted U.S. and international law in ways that have sought to avoid the absolute prohibition of torture and other ill-treatment and that have facilitated impunity for human rights violations."
The United Nations also weighed in on the torture issue this week. Manfred Nowak, the U.N. Special Rapporteur on torture, blasted the White House for defending the use of waterboarding and urged the U.S. government to give up its defense of "unjustifiable" interrogation methods.
"This is absolutely unacceptable under international human rights law," he said. "Time has come that the government will actually acknowledge that they did something wrong and not continue trying to justify what is unjustifiable."
Saturday, February 02, 2008
SIGNING AWAY THE CONSTITUTION
By William Fisher
When George W. Bush signed the 2008 National Defense Authorization Act into law last week, he again thumbed his nose at Congress by taking a second now-familiar step: He issued a “Signing Statement” – a declaration that effectively asserts his authority to ignore parts of the law he disagrees with.
His action brought harsh criticism from dozens of legal scholars and advocacy groups who point out that U.S. presidents have the authority under the Constitution to veto or approve acts of Congress – but not to modify them.
Bush's latest Signing Statement declares his right to ignore sections of the law establishing a commission to investigate U.S. contractor fraud in Iraq and Afghanistan, expanding whistleblower protections, requiring that U.S. intelligence agencies respond to congressional requests for documents, banning funding for permanent bases in Iraq, and prohibiting funding of any actions that exercise U.S. control over Iraq's oil revenues.
One Administration critic, United for Peace and Justice (UFPJ) -- the country's largest anti-war coalition with over 1,400 member groups – characterized Bush's action as “arrogant and unconstitutional” and called on Congress to convene hearings to impeach the president.
Bush’s use of Signing Statements has become one of the hallmarks of his Administration. The UFPJ charged that during the past seven years, the same kind of language used by Bush last week “has been the precursor to numerous violations of law by his administration, including sections of law banning the use of torture and banning the use of funds to construct permanent U.S. military bases in Iraq. The president has signed laws blocking funding for the construction of permanent bases in Iraq six times, but never stopped the construction.”
And, in a recent statement, The Constitution Project’s “Coalition to Defend Check and Balances” – a bipartisan group of legal scholars and former Republican and Democratic presidential advisors – declared: “To restore our system of checks and balances, Congress can, and must, exercise its responsibility as a separate and independent branch of government. Congress has a clear constitutional obligation to make the laws, and when it has made such laws, to ensure through oversight that the executive branch is enforcing those laws and is otherwise carrying out its responsibilities in a manner consistent with the laws and the Constitution”
Last month, a senior Department of Justice (DOJ) official testified before the House of Representatives Judiciary Committee that the president is free to violate any laws until the Supreme Court rules otherwise. However, the U.S. Constitution gives Congress the sole authority to legislate and requires the president to "take care that the laws be faithfully executed."
A year earlier, a blue-ribbon American Bar Association task force composed of constitutional scholars, former presidential advisers, and legal and judicial experts urged Congress to adopt legislation enabling its members to seek court review of signing statements that assert the President’s right to ignore or not enforce laws passed by Congress and demanded that the President veto bills he feels are not constitutional. Since he took office in 2001, the president has vetoed only one bill -- a measure to expand health care for children of poor families.
Another Bush critic, the American Civil Liberties Union (ACLU), declared, “When Congress sends a law to the president for signature it is not asking for his comments. The Constitution doesn’t provide for the president to cherry pick which laws – or which parts of the laws – he will enforce. The Founding Fathers of our country designed a system that works when Congress writes the laws and the president implements them,” said the ACLU’s Caroline Fredrickson. “The president needs to respect the separation of powers,” she added.
Arguably, the most controversial of Bush’s Signing Statements rejected the so-called McCain Amendment in the Detainee Treatment Act of 2006, which categorically prohibits cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world.
In his Signing Statement, the President asserted that he was free to construe that provision “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.”
Bush’s Signing Statements cover not only the so-called war on terror, but also a wide array of bills passed by Congress, ranging from affirmative action programs to requirements of statistical compilations by executive agencies to establishing basic qualifications for executive appointees.
The use of Signing Statements, however, did not start with George W. Bush. In recent U.S. political history, they have been used by Presidents Ronald Reagan, George H. W. Bush, and Bill Clinton as a tool to express constitutional and other objections to legislation, influence judicial interpretation, and otherwise advance policy goals.
Earlier presidents, beginning with James Monroe, the nation’s fifth chief executive, have issued such statements. Monroe signed a bill mandating a reduction in the size of the army and prescribed the method by which the president should select military officers. But a month later, he issued a statement declaring that the president, not Congress, had the Constitutional authority to appoint military officers.
In 1830, President Andrew Jackson signed an appropriations bill providing for a road from Detroit to Chicago, but issued a statement insisting that the road was not to extend beyond Michigan.
President Abraham Lincoln wrote that he was signing one bill on the understanding that the bill and the joint resolution explaining it were "substantially one." He attached to his Signing Statement a draft veto message he had prepared before the joint resolution was adopted.
His successor, President Andrew Johnson, signed but protested an Army appropriations bill, claiming that one of its sections "in certain cases virtually deprives the President of his constitutional functions as Commander in Chief of the Army."
In 1876, when signing a river and harbor appropriations bill that included local appropriations, President Ulysses S. Grant issued a Signing Statement saying that "under no circumstances will I allow expenditures upon works not clearly national."
In 1909, President Theodore Roosevelt issued a Signing Statement proclaiming his intention to ignore a restriction on his power to establish volunteer commissions. In 1920, President Woodrow Wilson signed a merchant marine bill, but determined not to enforce a provision he found unconstitutional.
In 1941, President Franklin Roosevelt found a provision of the Lend-Lease bill “clearly unconstitutional," but signed the bill as a matter of diplomatic and political necessity. Ten years later, when President Harry S. Truman signed the General Appropriation Act of 1951, he issued a statement describing as unconstitutional a provision authorizing loans to Spain.
In 1959, President Dwight Eisenhower signed the Mutual Security Act, but made it clear in a Signing Statement that he was willing only to enforce the bill to the extent that it did not infringe on his definition of executive authority.
When President Lyndon B. Johnson signed a crime bill in 1968, he criticized as "vague and ambiguous" provisions dealing with Federal rules of evidence in criminal cases.
President Richard Nixon objected to a 1971 military authorization bill which set a date for withdrawal of U.S. forces from Indochina. He said the bill was, “without binding force or effect.”
President Gerald Ford objected to a provision of a 1976 Defense Appropriation that restricted the Executive's ability to obligate certain funds until it received approval from several Congressional committees. Ford said he could not "concur in this legislative encroachment," and that he would treat the restriction "as a complete nullity."
President Jimmy Carter issued several Signing Statements in 1980-81. The first of these related to a bill mandating the closing of certain consular posts. Carter objected that Congress "cannot mandate the establishment of consular relations at a time and place unacceptable to the President."
But it was not until the administration of Ronald Reagan that the nation saw a dramatic increase in the frequency of presidential Signing Statements. Reagan saw the statements as a strategic tool for molding and influencing the way legislation was interpreted by Executive agencies. In eight years as president, he issued statements objecting to 72 congressional provisions, a record at the time. His successor, George Herbert Walker Bush, topped that mark in only four years in the White House. Bush objected to 232 provisions. President Bill Clinton followed with 140 objections in eight years.
But, as noted by the ABA’s bipartisan task force, while the current president is not the first to use signing statements, “the frequency of signing statements that challenge laws has escalated substantially.”
From the inception of the Republic until 2000, presidents produced fewer than 600 signing. Since 2001, President Bush has objected on constitutional grounds to sections of more than 750 laws.
Prof. Peter Shane of Ohio State University law school believes the current Bush Administration is creating faux law. He told us, “The Bush Administration’s repeated utterance of its constitutional philosophy shapes executive branch behavior by solidifying allegiance to norms of hostility to external accountability. Like the torture memo or the rationalizations for warrantless NSA wiretapping of domestic telephone calls, the Bush 43 signing statements embody both a disregard for the institutional authorities of the other branches – especially Congress – and a disregard for the necessity to ground legal claims in plausible law. They are best understood as an attempt to invent law, and as an exploitation of Congress’s unwillingness, at least while in Republican hands, to allow the Administration’s more extreme theories of presidential authority to go unchallenged.”
When George W. Bush signed the 2008 National Defense Authorization Act into law last week, he again thumbed his nose at Congress by taking a second now-familiar step: He issued a “Signing Statement” – a declaration that effectively asserts his authority to ignore parts of the law he disagrees with.
His action brought harsh criticism from dozens of legal scholars and advocacy groups who point out that U.S. presidents have the authority under the Constitution to veto or approve acts of Congress – but not to modify them.
Bush's latest Signing Statement declares his right to ignore sections of the law establishing a commission to investigate U.S. contractor fraud in Iraq and Afghanistan, expanding whistleblower protections, requiring that U.S. intelligence agencies respond to congressional requests for documents, banning funding for permanent bases in Iraq, and prohibiting funding of any actions that exercise U.S. control over Iraq's oil revenues.
One Administration critic, United for Peace and Justice (UFPJ) -- the country's largest anti-war coalition with over 1,400 member groups – characterized Bush's action as “arrogant and unconstitutional” and called on Congress to convene hearings to impeach the president.
Bush’s use of Signing Statements has become one of the hallmarks of his Administration. The UFPJ charged that during the past seven years, the same kind of language used by Bush last week “has been the precursor to numerous violations of law by his administration, including sections of law banning the use of torture and banning the use of funds to construct permanent U.S. military bases in Iraq. The president has signed laws blocking funding for the construction of permanent bases in Iraq six times, but never stopped the construction.”
And, in a recent statement, The Constitution Project’s “Coalition to Defend Check and Balances” – a bipartisan group of legal scholars and former Republican and Democratic presidential advisors – declared: “To restore our system of checks and balances, Congress can, and must, exercise its responsibility as a separate and independent branch of government. Congress has a clear constitutional obligation to make the laws, and when it has made such laws, to ensure through oversight that the executive branch is enforcing those laws and is otherwise carrying out its responsibilities in a manner consistent with the laws and the Constitution”
Last month, a senior Department of Justice (DOJ) official testified before the House of Representatives Judiciary Committee that the president is free to violate any laws until the Supreme Court rules otherwise. However, the U.S. Constitution gives Congress the sole authority to legislate and requires the president to "take care that the laws be faithfully executed."
A year earlier, a blue-ribbon American Bar Association task force composed of constitutional scholars, former presidential advisers, and legal and judicial experts urged Congress to adopt legislation enabling its members to seek court review of signing statements that assert the President’s right to ignore or not enforce laws passed by Congress and demanded that the President veto bills he feels are not constitutional. Since he took office in 2001, the president has vetoed only one bill -- a measure to expand health care for children of poor families.
Another Bush critic, the American Civil Liberties Union (ACLU), declared, “When Congress sends a law to the president for signature it is not asking for his comments. The Constitution doesn’t provide for the president to cherry pick which laws – or which parts of the laws – he will enforce. The Founding Fathers of our country designed a system that works when Congress writes the laws and the president implements them,” said the ACLU’s Caroline Fredrickson. “The president needs to respect the separation of powers,” she added.
Arguably, the most controversial of Bush’s Signing Statements rejected the so-called McCain Amendment in the Detainee Treatment Act of 2006, which categorically prohibits cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world.
In his Signing Statement, the President asserted that he was free to construe that provision “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.”
Bush’s Signing Statements cover not only the so-called war on terror, but also a wide array of bills passed by Congress, ranging from affirmative action programs to requirements of statistical compilations by executive agencies to establishing basic qualifications for executive appointees.
The use of Signing Statements, however, did not start with George W. Bush. In recent U.S. political history, they have been used by Presidents Ronald Reagan, George H. W. Bush, and Bill Clinton as a tool to express constitutional and other objections to legislation, influence judicial interpretation, and otherwise advance policy goals.
Earlier presidents, beginning with James Monroe, the nation’s fifth chief executive, have issued such statements. Monroe signed a bill mandating a reduction in the size of the army and prescribed the method by which the president should select military officers. But a month later, he issued a statement declaring that the president, not Congress, had the Constitutional authority to appoint military officers.
In 1830, President Andrew Jackson signed an appropriations bill providing for a road from Detroit to Chicago, but issued a statement insisting that the road was not to extend beyond Michigan.
President Abraham Lincoln wrote that he was signing one bill on the understanding that the bill and the joint resolution explaining it were "substantially one." He attached to his Signing Statement a draft veto message he had prepared before the joint resolution was adopted.
His successor, President Andrew Johnson, signed but protested an Army appropriations bill, claiming that one of its sections "in certain cases virtually deprives the President of his constitutional functions as Commander in Chief of the Army."
In 1876, when signing a river and harbor appropriations bill that included local appropriations, President Ulysses S. Grant issued a Signing Statement saying that "under no circumstances will I allow expenditures upon works not clearly national."
In 1909, President Theodore Roosevelt issued a Signing Statement proclaiming his intention to ignore a restriction on his power to establish volunteer commissions. In 1920, President Woodrow Wilson signed a merchant marine bill, but determined not to enforce a provision he found unconstitutional.
In 1941, President Franklin Roosevelt found a provision of the Lend-Lease bill “clearly unconstitutional," but signed the bill as a matter of diplomatic and political necessity. Ten years later, when President Harry S. Truman signed the General Appropriation Act of 1951, he issued a statement describing as unconstitutional a provision authorizing loans to Spain.
In 1959, President Dwight Eisenhower signed the Mutual Security Act, but made it clear in a Signing Statement that he was willing only to enforce the bill to the extent that it did not infringe on his definition of executive authority.
When President Lyndon B. Johnson signed a crime bill in 1968, he criticized as "vague and ambiguous" provisions dealing with Federal rules of evidence in criminal cases.
President Richard Nixon objected to a 1971 military authorization bill which set a date for withdrawal of U.S. forces from Indochina. He said the bill was, “without binding force or effect.”
President Gerald Ford objected to a provision of a 1976 Defense Appropriation that restricted the Executive's ability to obligate certain funds until it received approval from several Congressional committees. Ford said he could not "concur in this legislative encroachment," and that he would treat the restriction "as a complete nullity."
President Jimmy Carter issued several Signing Statements in 1980-81. The first of these related to a bill mandating the closing of certain consular posts. Carter objected that Congress "cannot mandate the establishment of consular relations at a time and place unacceptable to the President."
But it was not until the administration of Ronald Reagan that the nation saw a dramatic increase in the frequency of presidential Signing Statements. Reagan saw the statements as a strategic tool for molding and influencing the way legislation was interpreted by Executive agencies. In eight years as president, he issued statements objecting to 72 congressional provisions, a record at the time. His successor, George Herbert Walker Bush, topped that mark in only four years in the White House. Bush objected to 232 provisions. President Bill Clinton followed with 140 objections in eight years.
But, as noted by the ABA’s bipartisan task force, while the current president is not the first to use signing statements, “the frequency of signing statements that challenge laws has escalated substantially.”
From the inception of the Republic until 2000, presidents produced fewer than 600 signing. Since 2001, President Bush has objected on constitutional grounds to sections of more than 750 laws.
Prof. Peter Shane of Ohio State University law school believes the current Bush Administration is creating faux law. He told us, “The Bush Administration’s repeated utterance of its constitutional philosophy shapes executive branch behavior by solidifying allegiance to norms of hostility to external accountability. Like the torture memo or the rationalizations for warrantless NSA wiretapping of domestic telephone calls, the Bush 43 signing statements embody both a disregard for the institutional authorities of the other branches – especially Congress – and a disregard for the necessity to ground legal claims in plausible law. They are best understood as an attempt to invent law, and as an exploitation of Congress’s unwillingness, at least while in Republican hands, to allow the Administration’s more extreme theories of presidential authority to go unchallenged.”
Thursday, January 31, 2008
KENNEDY, SPECTER MOVE TO REIGN IN 'STATE SECRETS' LAW
By William Fisher
Alarmed by the Bush Administration’s increasing use of the so-called “state secrets privilege” to keep politically embarrassing lawsuits against the government from ever coming before a judge, Congress is stepping in to help ensure that people with grievances can have their cases heard.
A new bill sponsored by Senators Edward M. Kennedy, a Massachusetts Democrat, and Arlen Specter, Republican of Pennsylvania, would provide a mechanism for protecting legitimate secrets while also permitting civil litigation to proceed. Both are members of the Senate Judiciary Committee.
The state secrets privilege is a common law right that lets the government protect sensitive national security information from being disclosed as evidence in litigation.
The privilege was first recognized by the U.S. Supreme Court in 1953, in a case later shown to have been bogus. It has been asserted since then by every American administration, Republican and Democratic. But the Bush Administration has increased its use dramatically. It has raised the privilege in over 25% more cases each year than previous administrations, and has sought dismissal in over 90% more cases.
The privilege has been invoked to dismiss claims of unlawful domestic surveillance, detention, torture, and misconduct by government employees, on grounds that adjudicating them would cause unacceptable damage to national security.
The proposed new legislation “will ensure that the litigation process will not reveal state secrets, using many of the same safeguards that have proven effective in criminal cases and in litigation under the Freedom of Information Act," according to Senator Kennedy's office.
In 1980, Congress enacted the Classified Information Procedures Act (CIPA) to provide federal courts with clear statutory guidance on handling secret evidence in criminal cases. But no such guidance has been available in civil cases. The proposed new law is intended to correct that situation by providing the courts with “clear, fair, and safe rules.”
The proposed new law “clarifies that the courts, not the executive branch, must review the evidence and determine whether information is covered by the state secrets privilege," Kennedy says.
Legal scholars have long recognized the need for congressional guidance on this issue. A recent report by the American Bar Association urged Congress to “enact legislation governing federal civil cases implicating the state secrets privilege."
The bipartisan Constitution Project found that "legislative action is essential to restore and strengthen the basic rights and liberties provided by our constitutional system of government."
And a group of leading constitutional scholars wrote to Congress emphasizing that there "is a need for new rules designed to protect the system of checks and balances, individual rights, national security, fairness in the courtroom, and the adversary process."
The absence of such rules has resulted in the dismissal of a number of high-profile lawsuits against the government. For example:
A German citizen, Khaled el-Masri complained that he was kidnapped, illegally detained and abused by the Central Intelligence Agency (CIA) in a case of "extraordinary rendition." His suit was dismissed because he would not be able to make his case except by using "[privileged] evidence that exposes how the CIA organizes, staffs, and supervises its most sensitive intelligence operations" -- and the CIA could not defend itself against the allegations "without using privileged evidence."
In another widely publicized case, the Justice Department asserted the state-secrets privilege in successfully seeking to dismiss a lawsuit by Maher Arar, a Syrian-born Canadian citizen who was detained in the U.S. in 2002 and sent against his will to Syria, where he says he was tortured until his release a year later. A Canadian Government commission found after a two-year investigation that Arar had no connection with terrorists and awarded him compensation of $10 million and an apology.
And perhaps the best-known of such cases involved Sibel Edmonds, a former translator at the Federal Bureau of Investigation (FBI), who was fired for reporting security breaches and possible espionage within the Bureau. Edmonds unsuccessfully appealed her case to the U.S. Supreme Court. At the time, the Inspector General of the Department of Justice (DOJ) found that Ms. Edmonds’ firing was an act of retaliation. She has since become the head of a group advocating for greater legal protections for whistleblowers who are involved in national security work.
Legal scholars and legal rights advocates have been outspoken on the Bush Administration’s use of the state secrets as a shield behind which it can conceal virtually any activity.
Prof. David Cole of the Georgetown University Law Center, one of the nation’s preeminent constitutional lawyers, told us, “The Administration has argued on the merits that the President has unilateral executive power in the ‘war on terror’ to violate even criminal laws, and when it has been challenged on that assertion, it has argued that the courts can't even rule on that assertion of power because the alleged criminal violation is a ‘state secret’."
Cole’s view is echoed by Prof. Peter Shane of the Ohio University law school. He told us, “The expansion of executive power for its own sake has been a political priority of the Bush Administration since the beginning. Consistent with this agenda, the Administration has been conspicuous in its defense of the executive's secret-keeping authorities, even where disclosure of the information sought would not seem to undermine any public interest. This is true not just for state secret claims, but for the full scope of conceivable executive privilege claims.”
He added, “The current Supreme Court is so solicitous of presidential power that there is absolutely no prospect of real reform initiated by the current judiciary. If there is to be change, it will have to be at the initiative of Congress.”
Steven Aftergood, head of the Government Secrecy Program at the Federation of American Scientists, says the Kennedy-Specter legislation “would go a long way towards restoring confidence that the privilege is being properly used, and would help deter abuse.” He told us, “The government's ‘say-so’ would not be enough.
He added, “The state secrets privilege has been used to derail legal challenges to government policies on detention, rendition, and interrogation, among other outstanding issues. There has to be a better way. There is no incentive for the executive to regulate itself or to curtail its use of the privilege.”
And Gabor Rona, International Legal Director of advocacy group Human Rights First, told us, “When courts dismiss cases alleging human rights violations on state secrets grounds, and leave no alternative for redress, the U.S. is in violation of its obligation under the International Covenant on Civil and Political Rights to provide a remedy.”
Alarmed by the Bush Administration’s increasing use of the so-called “state secrets privilege” to keep politically embarrassing lawsuits against the government from ever coming before a judge, Congress is stepping in to help ensure that people with grievances can have their cases heard.
A new bill sponsored by Senators Edward M. Kennedy, a Massachusetts Democrat, and Arlen Specter, Republican of Pennsylvania, would provide a mechanism for protecting legitimate secrets while also permitting civil litigation to proceed. Both are members of the Senate Judiciary Committee.
The state secrets privilege is a common law right that lets the government protect sensitive national security information from being disclosed as evidence in litigation.
The privilege was first recognized by the U.S. Supreme Court in 1953, in a case later shown to have been bogus. It has been asserted since then by every American administration, Republican and Democratic. But the Bush Administration has increased its use dramatically. It has raised the privilege in over 25% more cases each year than previous administrations, and has sought dismissal in over 90% more cases.
The privilege has been invoked to dismiss claims of unlawful domestic surveillance, detention, torture, and misconduct by government employees, on grounds that adjudicating them would cause unacceptable damage to national security.
The proposed new legislation “will ensure that the litigation process will not reveal state secrets, using many of the same safeguards that have proven effective in criminal cases and in litigation under the Freedom of Information Act," according to Senator Kennedy's office.
In 1980, Congress enacted the Classified Information Procedures Act (CIPA) to provide federal courts with clear statutory guidance on handling secret evidence in criminal cases. But no such guidance has been available in civil cases. The proposed new law is intended to correct that situation by providing the courts with “clear, fair, and safe rules.”
The proposed new law “clarifies that the courts, not the executive branch, must review the evidence and determine whether information is covered by the state secrets privilege," Kennedy says.
Legal scholars have long recognized the need for congressional guidance on this issue. A recent report by the American Bar Association urged Congress to “enact legislation governing federal civil cases implicating the state secrets privilege."
The bipartisan Constitution Project found that "legislative action is essential to restore and strengthen the basic rights and liberties provided by our constitutional system of government."
And a group of leading constitutional scholars wrote to Congress emphasizing that there "is a need for new rules designed to protect the system of checks and balances, individual rights, national security, fairness in the courtroom, and the adversary process."
The absence of such rules has resulted in the dismissal of a number of high-profile lawsuits against the government. For example:
A German citizen, Khaled el-Masri complained that he was kidnapped, illegally detained and abused by the Central Intelligence Agency (CIA) in a case of "extraordinary rendition." His suit was dismissed because he would not be able to make his case except by using "[privileged] evidence that exposes how the CIA organizes, staffs, and supervises its most sensitive intelligence operations" -- and the CIA could not defend itself against the allegations "without using privileged evidence."
In another widely publicized case, the Justice Department asserted the state-secrets privilege in successfully seeking to dismiss a lawsuit by Maher Arar, a Syrian-born Canadian citizen who was detained in the U.S. in 2002 and sent against his will to Syria, where he says he was tortured until his release a year later. A Canadian Government commission found after a two-year investigation that Arar had no connection with terrorists and awarded him compensation of $10 million and an apology.
And perhaps the best-known of such cases involved Sibel Edmonds, a former translator at the Federal Bureau of Investigation (FBI), who was fired for reporting security breaches and possible espionage within the Bureau. Edmonds unsuccessfully appealed her case to the U.S. Supreme Court. At the time, the Inspector General of the Department of Justice (DOJ) found that Ms. Edmonds’ firing was an act of retaliation. She has since become the head of a group advocating for greater legal protections for whistleblowers who are involved in national security work.
Legal scholars and legal rights advocates have been outspoken on the Bush Administration’s use of the state secrets as a shield behind which it can conceal virtually any activity.
Prof. David Cole of the Georgetown University Law Center, one of the nation’s preeminent constitutional lawyers, told us, “The Administration has argued on the merits that the President has unilateral executive power in the ‘war on terror’ to violate even criminal laws, and when it has been challenged on that assertion, it has argued that the courts can't even rule on that assertion of power because the alleged criminal violation is a ‘state secret’."
Cole’s view is echoed by Prof. Peter Shane of the Ohio University law school. He told us, “The expansion of executive power for its own sake has been a political priority of the Bush Administration since the beginning. Consistent with this agenda, the Administration has been conspicuous in its defense of the executive's secret-keeping authorities, even where disclosure of the information sought would not seem to undermine any public interest. This is true not just for state secret claims, but for the full scope of conceivable executive privilege claims.”
He added, “The current Supreme Court is so solicitous of presidential power that there is absolutely no prospect of real reform initiated by the current judiciary. If there is to be change, it will have to be at the initiative of Congress.”
Steven Aftergood, head of the Government Secrecy Program at the Federation of American Scientists, says the Kennedy-Specter legislation “would go a long way towards restoring confidence that the privilege is being properly used, and would help deter abuse.” He told us, “The government's ‘say-so’ would not be enough.
He added, “The state secrets privilege has been used to derail legal challenges to government policies on detention, rendition, and interrogation, among other outstanding issues. There has to be a better way. There is no incentive for the executive to regulate itself or to curtail its use of the privilege.”
And Gabor Rona, International Legal Director of advocacy group Human Rights First, told us, “When courts dismiss cases alleging human rights violations on state secrets grounds, and leave no alternative for redress, the U.S. is in violation of its obligation under the International Covenant on Civil and Political Rights to provide a remedy.”
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