Saturday, December 23
Friday, December 22
In recent days we've had one-right wing radio host accuse Muslim Congressman Keith Ellison (D-MN) of trying to Undermine American civilization by being sworn in with his hand on the Quran instead of the Bible.
Nevermind the fact that no congressman is EVER sworn in with thier hand on the Bible.
Now we have Congressman Virgle Goode (R-VA) stating we need to better restrict immigration in order to prevent a majority of Muslims from being elected to Congress - except for the fact that Keith Ellison is not an immigrant!
Keith Ellison is an African-American.
Mr. Ellison dismissed Mr. Goode’s comments, saying they seemed ill informed about his personal origins as well as about Constitutional protections of religious freedom. “I’m not an immigrant,” added Mr. Ellison, who traces his American ancestors back to 1742. “I’m an African-American.”
Since the November election, Mr. Ellison said, he has received hostile phone calls and e-mail messages along with some death threats. But in an interview on Wednesday, he emphasized that members of Congress and ordinary citizens had been overwhelmingly supportive and said he was focusing on setting up his Congressional office, getting phone lines hooked up and staff members hired, not on negative comments.
“I’m not a religious scholar, I’m a politician, and I do what politicians do, which is hopefully pass legislation to help the nation,” said Mr. Ellison, who said he planned to focus on secular issues like increasing the federal minimum wage and getting health insurance for the uninsured.
But raising the minimum wage seems to be exactly what Goode is afraid of.
Rep. Virgil H. Goode Jr., R-5th, said in a statement, "Increasing the minimum wage in America will be a magnet for illegal aliens to come to this country. We do not need a strong magnet to lure illegals here."
His further comments on immigration and Muslims:
I do not subscribe to using the Koran in any way. The Muslim Representative from Minnesota was elected by the voters of that district and if American citizens don’t wake up and adopt the Virgil Goode position on immigration there will likely be many more Muslims elected to office and demanding the use of the Koran.
The Ten Commandments and “In God We Trust” are on the wall in my office. A Muslim student came by the office and asked why I did not have anything on my wall about the Koran. My response was clear, “As long as I have the honor of representing the citizens of the 5th District of Virginia in the United States House of Representatives, The Koran is not going to be on the wall of my office.”
Meanwhile Prager, who is Jewish and had been appointed by President Bush to be a U.S. Holocaust Memorial Council has had his comments about Ellison rebuffed by a resolution from that Executive Commitee of that very council.
WHEREAS, the United States Holocaust Memorial Council, the governing body of the United States Holocaust Memorial Museum, is charged with implementing the mission of the Museum as a living memorial to the victims of the Holocaust devoted to teaching the lessons of the Holocaust for the benefit of all mankind; and
WHEREAS, Dennis Prager, a member of the Council, has recently publicly expressed and disseminated certain statements which have been widely interpreted as being intolerant;
NOW, THEREFORE, BE IT RESOLVED, that the Executive Committee of the United States Holocaust Memorial Council, while recognizing that Dennis Prager has the right to express his personal views freely, disassociates itself from Mr. Prager’s statements as being antithetical to the mission of the Museum as an institution promoting tolerance and respect for all peoples regardless of their race, religion or ethnicity.
And for good measure, we have this incredible comment from yet another Congressional Representative, Rep Robin Hayes (R-NC) who thinks the solution in Iraq is to have our soldiers convert all the Muslims to Christianity.
“Stability in Iraq ultimately depends on spreading the message of Jesus Christ, the message of peace on earth, good will towards men. Everything depends on everyone learning about the birth of the Savior.”
Now this is so ignorant as to be just plain pathetic. Muslims happen to revere both the person and teachings of Jesus Christ. He is a prophet to them. They already know about his birth, they already know about his teachings.
So Jesus is a complete image of God. Qur'an says :"He is the Word(12)", this refers to Jesus. And Bible says:"The Word was with God and the Word became flesh to live among us..." (13) Jesus clearly stated that :"Me and the farther are One"(14).
Conclusion: Jesus, The almighty God and Holy Spirit are all One and this is the complete meaning of the unity. Ever since creation, God has determined for people to know him through many ways and methods. Messangers and prophets from Adam to Abraham and then Moses all prove of this divine will.
Where this all leaves us is in a very ugly place where naked bigotry and ignorance has begun to be openly expressed by members of the Holocaust Memorial and Congress.
This is an embarrisment to this nation.
But what's worse comments such as those made by Hayes only continue re-enforce the claims of radical muslims that American interest in the middle-east is nothing more than a New Crusade against Islam.
With this kind of talk Hayes just plays into the hands of Al-Qaeda by confirming what their leaders have always been saying: those American soldiers are just modern Crusaders.
And there just might be some truth to that charge if what has been occuring at the Air Force Academy is any indication.
Capt. MeLinda Morton is a prime example. A chaplain at the Air Force Academy in Colorado Springs, Morton has been trying her mightiest to end the force-fed evangelism that is rampant on campus. Rather than thanks, her outspoken defense of the Constitution has gotten her booted from her job and a one-way ticket to exile in Japan - known as "reassignment" in military speak.
Her fight against proselytizing is taking place in Colorado Springs - control central for the most radical elements of the Christian Right. James "tolerance is a homosexual plot" Dobson's Focus on the Family is based there - a concern so large that there is no need to use a street address on a letter. Also nearby is the Officers' Christian Fellowship, an organization whose express purpose is to create "ambassadors for Christ in uniform." Its slogan is: "Christian Officers Exercising Biblical Leadership to Raise up a Godly Military." (That's funny, the Taliban say something very similar.)
There is significant cross-pollination between the local evangelical groups and the Academy, to a point where cadets are reportedly cajoled, harangued and even bullied into being "saved."
As dangerous as al-Qeada may be - this radical bullying of Congressmen to conform to Christianity and proselytizing of our military to become "evangelical soldiers" just might be even more dangerous to the freedom thoughts and free worship of all of us, Christian, Muslim, Jewish, Athiest and Agnostic.
And this is a fight none of us can afford to lose.
Thursday, December 21
I never had any expection that Impeachment would be easy, if I beleived so I wouldn't have started writing the series - I felt that we needed a "roadmap" to pull most of the issues as we understand them now, before the 110th Congress begins it's investigations.
In this diary I take my turn providing a Prosecutorial Rebutal to the arguements of the Defense in order to bring the series to an appropriate close.
Let The Court of Truth be Now in Session. You are now the Jury.
Opening Statement by the Defense.
The overarching observation I begin with is that you impeach a person, not an administration. Every attempt at Presidential impeachment (and to my knowledge, all others) begins with the President voluntarily taking an action that he knew or should have known was wrong.
* Andrew Johnson intentionally provoked a Constitutional Crisis by firing Sec. Seward in contravention of the Tenure in Office Act, which he believed was unconstitutional. (Rightly, the Supreme Court later held.)
* Richard Nixon intentionally ordered that hush money be paid for people who had committed a burglary and committed espionage on behalf of his campaign.
* Bill Clinton was intentionally misleading (if not actually lying) under oath in his deposition regarding a civil case in which he was a defendant. (Yes, what he did wasn't technically illegal -- and to my mind not nearly impeachable -- but there was no doubt that he knew the truth and intended to conceal it for his own gain.)
I clearly agree the Impeachment relates to individuals, not an entire Administration - however what I was alluding to through-out my entire Impeachment Series was the fact that Congress has to be ability to not only Impeach the President, they can also Impeach the Vice-President or members of the Cabinet.
On the issue what a potential Impeachment target "should have known" - I do not agree that President Clinton should have known that his unwillingness to divulge information that he wasn't really asked - was "wrong". A lifetime ago I wrote my own rebuttal to the Starr Report. The Charges against Clinton were based on Perjury, Witness Tampering and Obstruction of Justice.
Allegation #2 reads as follows:
In his civil deposition, to support his false statement about the sexual relationship, President Clinton also lied under oath about being alone with Ms. Lewinsky and about the many gifts exchanged between Ms. Lewinsky and him.
The primary problem with this allegation was the Clinton didn't claim he wasn't ever alone with Monica Lewinsky - he admitted that he was and gave examples of when that could have occured such as
"A... when she worked at the legislative affairs office, they always had somebody there on the weekends. I typically worked some on the weekends. Sometimes they'd bring me things on the weekends. She – it seems to me she brought things to me once or twice on the weekends."
Q. So I understand, your testimony is that it was possible, then, that you were alone with her, but you have no specific recollection of that ever happening?
A. Yes, that's correct. It's possible that she, in, while she was working there, brought something to me and that at the time she brought it to me, she was the only person there. That's possible.
Certainly there was more to the story, the problem is that the they didn't ask him about it during the Jones deposition. His failure to volunteer additional information that he wasn't asked is not a "wrong" act on his behalf.
Back to the current President, almost.
So I take it as a given that we need to find similar personal knowledge, in advance of a crime, on Bush's part. Otherwise we may end up in the situation that we did with Iran-Contra where the investigation could not show that Reagan himself ever quite connected the dots -- due to his own incuriousity and feeble thinking -- to see that actions he ordered (or at least acquiesced to) were illegal. And that didn't work out so well.
In Iran-Contra many of the subordinates involved chose to "fall on the sword" and protect the President through plausible deniability and by lying to Congress. But Reagan did eventually admit wrong-doing.
Reagan's admission in March 1987 that "it was a mistake" to trade weapons for hostages was what saved his reputation, according to Cannon.
Reagan said at the time, "A few months ago, I told the American people I did not trade arms for hostages. My heart and my best intentions still tell me that is true, but the facts and the evidence tell me it is not."
As far as I'm concerned Iran-Contra worked out fine - because it resulted in changing the President's behavior and sending several criminals to jail, at least until Federalist Society Judges overturned the various perjury and contempt of Congress convictions that had been given to various Reagan Administration Officials.
Anyway, enough digression.
>Count 1 Intelligence Fraud
The minimum requirements for fraud are that you (1) intentionally (2) represent to someone else (3) that something is true, (4) when it is not true and (5) when you know is not true, intending that (6) they will take some action (7) that benefits you.
1. PNAC wanted to "invade." Arguably relevant to "motive," but "motive" isn't at issue here.
2. Bush said he wanted to invade Iraq "if I have the chance." Pretty much irrelevant to impeachment. The question is whether he did it by illegal means. If I want a Mercedes, and later you see me driving one, that doesn't mean that I stole it.
Actually "motive" is at issue here - since it statisfies requirement (7). In this case the benefit that Bush would have received by invading Iraq is exactly as he stated - he stated that he would gain political capital, and be better able to implement his legislative agenda.
3. About yellowcake: (a) Bush never said that the yellowcake story was true, but that the British government believed it to be true (so element (3) of the crime is not satisfied);
It's clear that by mentioning the issue during his state of the union Bush was expressing that he believed the story, not what the British Government believed. If he believe something different from what the British believed - it was incumbent upon him to make the distinction. He did not, instead he said:
The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.
This is not a statement of what the British government believed, "Saddam Hussein recently sought significant quantities of uranium from Africa" is stated as a fact, not an opinion of the British. Add to that his statments during the Cincinnati speech.
The evidence indicates that Iraq is reconstituting its nuclear weapons program. Saddam Hussein has held numerous meetings with Iraqi nuclear scientists, a group he calls his "nuclear mujahideen" -- his nuclear holy warriors. Satellite photographs reveal that Iraq is rebuilding facilities at sites that have been part of its nuclear program in the past. Iraq has attempted to purchase high-strength aluminum tubes and other equipment needed for gas centrifuges, which are used to enrich uranium for nuclear weapons.
If the Iraqi regime is able to produce, buy, or steal an amount of highly enriched uranium a little larger than a single softball, it could have a nuclear weapon in less than a year. And if we allow that to happen, a terrible line would be crossed. Saddam Hussein would be in a position to blackmail anyone who opposes his aggression. He would be in a position to dominate the Middle East. He would be in a position to threaten America. And Saddam Hussein would be in a position to pass nuclear technology to terrorists.
He would be - Kim Jong-Il?
None of these statements were true, and there was ample information available in the State Dept, Energy Dept, IAEA, CIA and DIA to refute all of it prior to October 2002. Further the NIE stated that the Niger claim was "highly dubious" and as a result references to it were removed from the Cincinnati speech, it also said it was highly unlikely that even if Saddam Hussein possesed WMD's that he would use them unless he was provoked. So naturally, Bush provoked him.
(b) the questionable acts described are those of his advisors -- note where Vyan quotes people saying "*they* put it back in, they preferred to perpetuate a lie" (so element (1) isn't satisfied, and remember that you can't impeach the administration, just the man);
As stated above, you can Impeachment individual members of the Administration. In this case the target(s) - exempting those who've already resigned - would be Cheney and members of his staff such as Scooter Libby, Stephan Hadley and Donald Rumsfeld who were all heavily involved in what Wilkerson describes as "The Cabal".
The ultimate question though is whether Bush himself was a willing member of the "Cabal" or simply improperly served by those beneath him. I think the answer to this is found in several places.
Bush was personally briefed by George Tenet and chose to ignore the information provided by Iraqi Foreign Minister Naji Sabri - that Iraq no longer had WMD in September of 2002. This was before the Cincinnati speech, before the passage of the Iraq Force Resolution and cleary before the 2003 SOTU.
European CIA Chief Tyler Drumheller was told "Well, this isn't about intel anymore. This is about regime change.'"
From the Downing Street Minutes from July of 2002.
C reported on his recent talks in Washington. There was a perceptible shift in attitude. Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy. The NSC had no patience with the UN route, and no enthusiasm for publishing material on the Iraqi regime's record. There was little discussion in Washington of the aftermath after military action.
And Downing Street II.
A memo of a two-hour meeting between the two leaders at the White House on January 31 2003 - nearly two months before the invasion - reveals that Mr Bush made it clear the US intended to invade whether or not there was a second UN resolution and even if UN inspectors found no evidence of a banned Iraqi weapons programme.
And speaking of manufacturing a fraud...
Mr Bush told Mr Blair that the US was so worried about the failure to find hard evidence against Saddam that it thought of "flying U2 reconnaissance aircraft planes with fighter cover over Iraq, painted in UN colours". Mr Bush added: "If Saddam fired on them, he would be in breach [of UN resolutions]".
(3) so there's no evidence on record to show that Bush himself did not believe the story to be true or, more to the point, that he believed it was not true (as opposed to, say, mostly but not entirely proven) based on his advisors' representations, (so element (5) of the crime is not met).
According to the record he didn't care whether it was true or not. Bush was willing to paint as US plane as if it was a from UN on the hopes that Saddam would fire on it and prove that he had broken UN sanctions. That suggestion statisfies all 7 elements of criminal fraud right there. According to Downing Street - the policy had already been set in July of 2002, long before the President's State of the Union or Colin Powell's UN speech. From that point foward it was a matter of "selling the war" - not finding out the truth.
4. Most of the other things "they" did or didn't know do not refer to Bush's own demonstrated knowledge; nor does the fact that any of these turned out not to be true, or that with hindsight turned out to be based on a weak premise, prove that the proponents of the information knew that it was false. Did the CIA say otherwise?
Yes they did, the NIE said that Saddam was unlikely to use WMD even if he had them according to Senator Bob Graham - who along with Sen. Durbin has requested the NIE in the first place.
There were troubling aspects to this 90-page document. While slanted toward the conclusion that Hussein possessed weapons of mass destruction stored or produced at 550 sites, it contained vigorous dissents on key parts of the information, especially by the departments of State and Energy. Particular skepticism was raised about aluminum tubes that were offered as evidence Iraq was reconstituting its nuclear program. As to Hussein's will to use whatever weapons he might have, the estimate indicated he would not do so [use WMD's] unless he was first attacked.
Under questioning, Tenet added that the information in the NIE had not been independently verified by an operative responsible to the United States. In fact, no such person was inside Iraq. Most of the alleged intelligence came from Iraqi exiles or third countries, all of which had an interest in the United States' removing Hussein, by force if necessary.
All Bush has to say is that he didn't fully trust the CIA's position. If he knew that they were anti-war, he would have had reason for skepticism. Most of the stuff dealing with Powell, etc., doesn't implicate Bush's knowledge.
This suggests facts not in evidence.
5. Bush's 2003 SOTU can be defended against constituting fraud. When Bush said "This is a regime that agreed to international inspections -- then kicked out the inspectors," this is not literally untrue (element (4) not satisfied), though it's misleading as hell; as Vyan's diary shows, Saddam did kick out "the" inspectors, if by that one means American inspectors (a misleading but permissible construction) in 1997.
Misleading but technically true statements are permissible? - You mean like "It depends on the what the meaning of "Is" is?" or "I did not have 'sexual relations' with that woman, Ms. Lewinsky?"
In both of these cases, Bill Clinton was telling the truth as he saw it. "There is no relationship" depended on whether one of Clinton's attorneys was speaking in present tense or past tense. What Clinton was saying was the statement was true in present tense, and false in past tense. He was admitting that had been a relationship, but it was over at that time. In this case, he was actually admitting something against his own interests - that his lawyer might have been lying.
The definition of 'sexual relations' was not something Clinton made up, it was a very specific list of items provided by the Jones attorneys, and in Clinton's judgement he didn't do anything on the list - Monica did. They never asked him what Monica did.
Yet again, misleading - true - but permissible? Not hardly according to existing precedent.
By contrast Bush did not claim that the Saddam kicked out the American inspectors, he clearly implied that he'd kicked out all the inspectors and that simply isn't true. If he'd said "some" it might have been closer to the truth.
His counsel will argue that even if that was misleading, it didn't matter, because Bush did believe that Saddam posed a serious danger and possessed WMDs and the additional puffery he ladled on to help make the political case for war doesn't constitute fraud. As for the fact that Saddam didn't violate the agreement -- if Saddam thought that he has a chemical and bio weapons program, then we certainly can't say that Bush knew for certain that he did not (element (5) unsatisfied.)
Saddam knew full well that he had no chemical weapons since he'd ordered them destroyed in 1991. He actually announced this fact to his own Generals three months before the war.
So then we get to the crux of Vyan's argument in point 1:
If Bush didn't know what he was claiming were complete falsehoods - he should have known. It's HIS JOB TO KNOW. Whether he personally initiated the fraud isn't the point, he helped perpetrate it. He legitimized it. He is the one ultimately responsible.
No. That is simply not the law of fraud, absent specific statutory language (such as you may see in some Sarbanes-Oxley requirements) to the contrary. Here's a perfectly good defense against fraud: Bush relief on the advice of competent advisors, the most senior of which were approved by the Senate, in these areas, and he believed in good faith that Saddam had at least some WMDs and therefore posed a threat to the U.S. It is not "his job to know"; it's his job to take the information he has, form an opinion, and promote a policy that is not, to his knowledge, opposed to the facts.
The record shows, including the NIE, that Bush had been told by several competent advisors - who had been approved by the Senate such as George Tenet - that there was significant doubt regarding Saddam's WMD status.
The reason I say that it was Bush's "job to know" isn't based on the law of fraud - it's based on the Presidential Determination section of HJ 141, which like Sarbanes-Oxley did include very specific requirements for the President to meet prior to using force against Iraq.
(b) PRESIDENTIAL DETERMINATION.
In connection with the exercise of the authority granted in subsection (a) to use force the President shall, prior to such exercise or as soon there after as may be feasible, but no later than 48 hours after exercising such authority, make available to the Speaker of the House of Representatives and the President pro tempore of the Senate his determination that
(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq, and
The President was required by the Iraq Force Resolution itself to report to Congress his determination that further attempts at diplomacy would not be effective at protecting the United States from Saddam Hussein. The core of my fraud charge is based on this point - the President was required to prove that Saddam was a imminent threat, he was required to know by the resolution he himself had signed in October of 2002, but according the Downing Street Minutes (with various levels cooberation) Bush and his Administration were already commited to regime change regardless of the facts at least as early as the previous July.
Yet Saddam Hussein had told us and the UN that he was disarmed in December. The President was required to verify that disclosure, but instead he chose to ignore it, and the weapons inspectors who said our WMD intel was garbage and invade.
I submit that there is no reasonable way that document delivered to Congress to justify the use of force against Iraq under the requirements of HJ 141 could not have been fraudulent.
Count 2 Domestic Spying.
1. Let's start by dispensing with the Constitutional argument. There is already no warrant needed. You can get authorization for a warrant after a call -- it's now three days; the Democratic Congress wants to make it a whole week. No one is still challenging the fact that you don't need a warrant in advance for surveillance. For "chasing down terrorists" -- as Vyan quotes the President -- then you do. But then we have probable cause, thanks to this surveillance -- a program that is highly supported by the American people, unlike, say, paying hush money or lying during depositions.
The issues isn't whether you need a warrant in "advance" of doing listening - it's whether you need a warrant and any judicial oversight to verify that probable cause has been met ever. The President's position is now that he doesn't need to meet probable cause and doesn't need to secure a warrant at all, which is clearly extra-constitutional.
And I wouldn't say the program is "Highly supported".
"As you may know, the Bush Administration has been wiretapping telephone conversations between U.S. citizens living in the United States and suspected terrorists living in other countries without getting a court order allowing it to do so. Do you think the Bush Administration was right or wrong in wiretapping these conversations without obtaining a court order?"
9/15-17/06 Right 55% Wrong 45% Unsure 3%
2. FISA doesn't intend to tie the President's hands during wartime. Congress never intended FISA to prevent the Administration from defending against direct attack on the United States.
And truth be told, the President hands would not be "tied" if he were to simply use FISA as it currently exists to obtain surveillance warrants. The existing three-day grace period guarantees this.
3. If FISA does do so, it's an unconstitutional encroachment on the President's powers as the unitary executive. During wartime, the constitution demands deference to the President's authority as Commander-in-chief. Etc. If the unitary executive model is correct, then the President's actions are proper. "If the President does it, it's not a crime," some guy once said.
No, the Constitution makes no such demand. The only change which is created by the existence of a war, is the option for the Congress to temporarily suspend Habeas Corpus - the Constitution does not grant the President any special dispensation or additional powers during wartime.
4. AUMF authorized these actions. [OK, I can't write much to support the argument, but they will make it and some will buy it.]
That has been debunked by Hamdi V Rumsfeld, which states that there is a "judicial role" to be played involving the handling of terrorists.
5. Much of what the Administration is accused of is not actual interception of the content of messages, but the equivalent of looking at the outsides of envelopes without opening them. This is legal.
If we were talking about the U.S. Mail - it would be, but we aren't. Tracking the "wrapper" of an email or phone call - without accessing the content - required the installation of a "Pen and Trap" or equivelent device similar to those which have been installed it would violate 18 USC § 3121.
(a) In General.— Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence Surveillance Act of 1978
6. Most importantly, the President was relying on the advice of competent counsel, the leaders of which were approved by Congress, in all of these matters. It may be that the President's position was mistaken; Presidents win some court cases and lose them, but we don't talk about impeachment when they lose a case. (LBJ favored minority set-asides ruled unconstitutional in Adarand. Was his action impeachable?) Even if the President's actions were wrong here, he was acting on legal advice. To find an impeachable offense here, you have to include that not only was the advice he was given about FISA, the AUMF, and the unitary executive wrong, but that it was so obviously wrong that the President was unreasonable to accept it. The fact that the author of one such memo was approved by Congress to a lifetime appointment on the 9th Circuit Court of Appeals, and that another is a prominent professor at a leading law school, both positions being attained after their participation in these activities was known, shows that -- at worst -- the position was arguable. To say that the President risks impeachment for relying on the legal advice of counsel would weaken the Presidency irreparably. This is not the standard we would use when the penalty at issue was a mere fine, let alone the Presidency.
Well, if they could consider Clinton's attorney saying "There is no relationship" to be Impeachable - I think the bar has been signicantly lowered in this area.
However, I think again that the Supreme Court Hamdi decision where the Court required Judicial Review in relation to terrorist suspects and established that "War is not a Blank Check" for the President has largely eviscerated any legitimate argument supporting this program.
The fact the Gonzales and the DOJ continue to ignore this is a good argument for the Impeachment of Gonzales on malpractice grounds for giving advice to a client that knowingly precipitated and justified a criminal act.
>Count 3 War Crimes
(A) Vyan argues that the Gonzales Memo suggesting exempting Taliban fighters from the protection of Geneva is prima facie evidence of a crime, stating that "We Are Signatories and as such we are required to abide by Geneva." But this doesn't contradict the memo, In fact, Vyan himself quotes the relevant portion:In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
I've boldfaced the parts that Vyan did, but the critical section is what I've italicized: terrorists, including unrecognized governments, are not representatives or forces of states, and therefore they are not "High Contracting Parties" and the protections we have agreed to do not extend to them. Because of this mistake, Vyan raises a number of arguments related to treatment of "Prisoners of War" that are inapplicable to the Al Qaeda and Taliban fighters. They aren't Prisoner's of War because they aren't fighting for a Geneva signatory.
I did make a mistake, but not the one you claim. I didn't quote the right paragraph of the Conventions.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
Any signatory or High Contracting Party to the Conventions is required to abide by the Convention in all cases, not simply when they are in armed conflict with another High Contracting Party.
I would also agree that Al Qaeda and Taliban fighters are not "Prisoners of War" under the Convention until they has been a competent tribunal to determine this on a case by case basis, and then prior to such a tribunal any persons captured by opposing forces are afforded the full protection of the conventions under Article 5.
The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
Furthermore, Congress has implicitly if not explicitly accepted this in numerous of its acts, by both commission and omission. Should the President now be impeached for a "crime" that Congress has agreed up until now is not a crime based on a fair interpretation of Geneva?
The likelyhood of the Military Commissions Act passing Constitutional muster is extremely low, and partly why the restrictions on Habeas Corpus within the bill are so onerous. If - no when - the new Congress acts to restore Habeas and remove these restrictions this law is likely to fall into itself like a souffle. The fact that Congress repeated the President's error does not change the fact that it is a gross Constitutional error.
This issue was indeed the one where various members of the Bush Administration had the highest and most serious vulnerability, hence their urgency in utilizing the 109th Congress to provide legal cover for their actions with the MCA before the end of their term. For the time being they have "innoculated" themselves on this count.
(C) The Rumsfeld memo is subject to a similar analysis as the Bybee memo.
Possibly, pending a judgement on the matter from the Supreme Court or a repeal/amendment to the MCA.
(D) Extraordinary rendition fell within the power of the President under the theory of the Unitary Executive. Again, impeachment on this point means fighting that out.
(E) If Hamdan did make previous Bush Administration actions potential war crimes, the Military Commissions Act settled that they are not, and impeachment will take place after passage of the MCA, not before. Many of the Bush Administration's actions have been retroactively "cleansed" by a bipartisan vote and cannot serve as a basis for impeachment.
Agreed. As I said, they've been "innocolated" for the time being. Any future SCOTUS decision which overturns all or portions of the MCA will reopen this issue.
(F) Again, consider the "advice of counsel" defense. The President is entitled to rely on the advice of his competent counsel. Taking away that right would be a disaster. This means that you must show not simply that the President was wrong, but that the President was not reasonable in accepting this advice. That's a high bar to clear.
Going again back to the Clinton precedent, Ken Starr argued that Bill Clinton was engaging in Obstruction of Justice when he gave factually inaccurate information to his staff, including White House Counsel - even when there was no pending legal proceeding related to that issue, and none of the persons he was speaking with were on any witness list.
Essentially he was considered to be "under oath" at all times even in private conversations with his secretary Bettie Currie. The bar is already pretty darn low.
What I'm suggestion though is that there is no legal protection for an attorney who gives his client advice to specifically circumvent and break the law, and that is exactly what Gonzales and Bybee have done here. The charge is that their advice was knowingly false, and that it was requested specifically by the President in order to persue illegal activities.
Conclusive proof of this intent does not currently exist in the record, but sufficiently targeted Congressional subpeonas are IMO likely to discover quite a bit of information that we don't current have which just might resurrect this charge even while the MCA is still in effect.
I have presented a Count 4: Criminal Negligence - which was not included in the Defense argument, but for the sake my carpal tunnel - I'll leave that for another time.
Wednesday, December 20
In this, the last segment in my multipart series on why George W. Bush, Dick Cheney, Donald Rumsfeld, Alberto Gonzales, Condoleeza Rice and Michael Chertoff must be Impeached, Removed, Indicted, Arrested and Prosecuted for their crimes against the American People - I examine what may be the most devastating charge against these men (and woman), their gross dereliction of duty which has which has directly and indirectly led to the loss of nearly 10,000 American Lives.
The Impeachment Case Against George W. Bush - Count 4 : Dereliction of Duty and Criminal Negligence. George W. Bush, Dick Cheney, Condoleez Rice, Micheal Chertoff and Donald Rumsfeld did commit a series of inexcusable errors of judgement and failures of leadership amounting to malfeasance, misconduct, dereliction of duty and criminal negligence.
Under the Uniform Code of Military Justice.
“Any person subject to this chapter who—
(3) is derelict in the performance of his duties; shall be punished as a court-martial may direct.”
Under the U.S. Codes Misconduct
Every captain, engineer, pilot, or other person employed on any steamboat or vessel, by whose misconduct, negligence, or inattention to his duties on such vessel the life of any person is destroyed, and every owner, charterer, inspector, or other public officer, through whose fraud, neglect, connivance, misconduct, or violation of law the life of any person is destroyed, shall be fined under this title or imprisoned not more than ten years, or both.
To constitute a crime, there must be an actus reus (Latin for "guilty act") accompanied by the mens rea (see concurrence). Negligence shows the least level of culpability, intention being the most serious and recklessness of intermediate seriousness, overlapping with gross negligence. The distinction between recklessness and criminal negligence lies in the presence or absence of foresight as to the prohibited consequences. Recklessness is usually described as a 'malfeasance' where the defendant knowingly exposes another to the risk of injury. The fault lies in being willing to run the risk. But criminal negligence is a 'misfeasance or 'nonfeasance' (see omission), where the fault lies in the failure to foresee and so allow otherwise avoidable dangers to manifest. In some cases this failure can rise to the level of wilful blindness where the individual intentionally avoids adverting to the reality of a situation.
Exhibit A: Al-Qeada
The most sacred of Presidential duties is that of protecting the people of the United States from Foreign Attack. To Date, President Bush and his Administration have utterly failed to address the attacks against the United States intiated by Al-Qaeda and Osama Bin Ladin including the Oct 2000 bombing of the U.S.S. Cole and the attacks against the United States on September 11, 2001.
Six years after the Cole bombing and five years after the fall of the World Trade Center - Bin Laden and his chief deputies remain at large.
Rather than head the warnings provided by Counter-Terrorism Chief Richard Clarke - who called for an urgent NSC Principles meeting on Al-Qaeda on January 25th 2001(PDF) just five days after Bush inaguration - President Bush and his administration did nothing.
The Al Qida terrorist organization led by Usama Bin Ladin has stitched together a network of terrorist cells and groups to wage jihad. Al Qida seeks to drive the United States out of the Arabian Peninsula and elsewehre in the Muslim World. It also seeks to overthrow moderate governments and establish theocracies similar to the Taliban in Afghanistan. The Al Qida network is well financed, has trained tens of thousands of jihadists, and has a cell structure in over forty nations. It is also seeking to develop and aquire weapons of mass destruction.
The United States Goal is to reduce the Al Qida network to a point where it no longer poses a serious threat to our security or that of other governments. That goal can be achieved over a three to five year period, if adequate resources and policy attention are devoted to it.
Yet Clarke was ignored, and found his position downgraded. No longer would he be one of the NSC Principles (key members of the FAA, FBI, CIA and other agencies tasked with national Security issues) and no longer would he have the ability to call a Principles meeting in the case of an emergency. No resources were directed toward dismantling Al-Qeada and no significant policy attention was paid. Not until after September 11th and it made no difference.
Before the 9-11 Commission Condoleeza Rice claimed that she had not been presented a plan to address al-Qaeda.
The January 25, 2001, memo, recently released to the National Security Archive by the National Security Council, bears a declassification stamp of April 7, 2004, one day prior to Rice's testimony before the 9/11 Commission on April 8, 2004. Responding to claims that she ignored the al-Qaeda threat before September 11, Rice stated in a March 22, 2004 Washington Post op-ed, "No al Qaeda plan was turned over to the new administration."
Unfortunately for Rice - the Plan she says she didn't receive was attached the Clarke's Jan 25th Memo and is Right Here.(PDF)
Not only did Rice recieve warnings and a plan from Clark, she was also advised that Al-Qaeda would be the "most series issue" facing the Bush Administration from outgoing National Security Advisor Sandy Berger and even President Clinton himself.
Bush supporters have attempted to blame Clinton for the lack of response to 9-11. But the record is clear that the responsibility for the bombing of the Cole was not established until after he left office. (What a disaster it would have been for a American President to respond to an attack on America - without first verifying the source of the attack, hmm??)
As was revealed by Bob Woodward, Clarke's memo wasn't the only warning that was ignored.
The CIA'S top counterterrorism officials felt they could have killed Osama Bin Laden in the months before 9/11, but got the "brushoff" when they went to the Bush White House seeking the money and authorization.
CIA Director George Tenet and his counterterrorism head Cofer Black sought an urgent meeting with then-national security adviser Condoleezza Rice on July 10, 2001, writes Bob Woodward in his new book "State of Denial."
They went over top-secret intelligence pointing to an impending attack and "sounded the loudest warning" to the White House of a likely attack on the U.S. by Bin Laden.
Woodward writes that Rice was polite, but, "They felt the brushoff."
Interestingly Rice has squirmed on the hook concerning this issue - claiming at first that the meeting didn't happen before the 9-11 Commission, and then that it did happen only that the threat "wasn't that serious", but then again it was apparently serious enough that instead of giving Tenet and Black the "Brush-off" she suggested that they repeat their presentation to Donald Rumself and John Ashcroft on July 17th.
It would be fair to state that having Tenet and Black repeat their Powerpoint slideshow was at least a "response" (even if Ashcroft strangely doesn't seem to remember it) - but it certainly wasn't the clarion call to arms and full meeting by all the NSC Principles that Clarke had urgently requested 6 months previously.
From Clarke's Book "Against All Enemies" Page 236.
During the spring as inital policy debates in the Administration began, I e-mailed Condi Rice and NSC Staff colleagues that al-Qaeda was trying to kill Americans, to have hundreds of dead in the streets of America. During the first week in July I convened the CSG and asked each agency to consider itself on full alert. I asked the CSG agencies to cancel summer vacations and official travel for the counterterrorism response staffs. Each agency should report anything unusual, even if a sparrow should fall from a tree. I asked FBI to send another warning to the 18,000 police departments, State to alert the embassies and the Defense epartment to go to Threat Condition Delta.
It would be yet another 2 months before any meeting was held what-so-ever. But on August 6th the President received a PDB (Presidential Daily Briefing) which was no doubt fostered by the efforts of Clarke and Tenet - which stated "Bin Ladin Determined to Strike Inside U.S.".
"After U.S. missile strikes on his base in Afghanistan in 1998, Bin Laden told followers he wanted to retaliate in Washington," the document stated.
The document further stated that the New Year's Eve 2000 plot to bomb Los Angeles International Airport may have been bin Laden's first attempt at a terrorist strike inside the United States.
"Al-Qaida members -- including some who are U.S. citizens -- have resided in or traveled to the U.S. for years, and the group apparently maintains a support structure that could aid attacks," the document said.
Bush's reported response to the briefer? "Well, now you've covered you're ass."
Less than a week before 9-11, on September 4th the meeting that Richard Clarke had urgently requested in January had finally occurred.
It remains debatable whether a more robust reponse to Clark, Tenet, Black, Berger and Clinton's warnings about Bin Laden might have prevented 9-11, whether the Pheonix Memo would have set off some red flags - or the 52 warnings of a possible al-Qeada highjacking which was received by the FAA intelligence unit had gone up the chain - or whether searching Moussaoui's hard-drive might have revealed some of the details of the plot - but one thing is certain. They couldn't have done any less than the did - because what they did was effectively NOTHING UNTIL IT WAS FAR TOO LATE.
Contrast this to the how Clarke's concerns and warnings that there were no protections in place against a plane being hijacked and crashed into the Atlanta Olympic Stadium in 1996 resulted in Vice President Gore personally chairing the NSC Principles meeting - just one week after being asked. After grilling the Principles on their security plan - which they didn't yet have - he put the "fear of God" into them and said.
"I know General Shelton over there could probably personally scare away most terrorist, but we can't put Hugh on every street corner. We need a better plan than this." Turning to me on his right Gore handed me all the authority I needed. "Dick, I am going to ask you to pull that together, use whatever resources these agencies have that are needed. Anybody got any problem with that?"
The plan and tactics that were then developed for the Olympics were later reused and expanded for the Millenium Alerts. As a result the attempts to bomb LAX, the Lincoln and Holland tunnels were all thwarted.
The crux of the charge here against the Bush Administration isn't that they didn't prevent 9-11 (Gore's direct involvement with the Principles didn't prevent Eric Rudolph from bombing the Atlanta Olympics), it's that they didn't even try despite ample and urgent warnings. They were effectively asleep at the wheel.
When 9-11 occured, what did Bush do? Stare at "My Pet Goat" for 4-1/2 minutes. Dick Cheney hid in a White House Bunker. Condoleeza Rice stood aside (thank god) and the person left effectively running the Country from the Situation Room during the entire crisis - was Richard Clarke!
Following 9-11, the Bush Administration continued it's trend of failure by allowing a wounded and trapped Bin Laden to escape from Tora Bora.
This is a pattern on the part of Bush and the cronies in his Administration, a pattern that blatantly disregards the need to dispatch their duty as public servants, a pattern that is tantimount to criminal negligence. Given the information they had been provided, it was their duty to do everything they could before the problem festered - and they utterly failed in that duty.
Casualty Count including New York, Washington and Pennsylvaia : 3030
Exhibit B: The Iraq Quagmire
From Crooks and Liars.
On June 20, 2005 (a year ago)-Dick Cheney said that the insurgency was in it's last throes. He was talking to the National Press Club today and said:
Q: Do you think that you underestimated the insurgency's strength?
Cheney: I think so, umm I guess, the uh, if I look back on it now. I don't think anybody anticipated the level of violence that we've encountered....
Despite the advise given by General Shinseki to include enough troops to maintain the peace in a post-invasion Iraq, Secretary of Defense Donald Rumsfeld choose a different path.
“We didn’t send enough troops in to quell the insurgency in the first place.” L. Paul Bremer, the former head of the administration’s coalition provisional authority, admitted in October 2004 that the United States failed to deploy enough troops to Iraq in the beginning. According to Bremer, the lack of adequate forces hampered the occupation and efforts to end the looting immediately after the ouster of Saddam Hussein. “We paid a big price for not stopping it because it established an atmosphere of lawlessness. We never had enough troops on the ground,” he said.
Once "Mission Accomplished" was declared they stopped really caring about Iraq. Last year exactly how badly the Reconstruction effort had been completely bungled and handed off to inexperienced ideologues finally came to light.
“We thought political allegiance was a more important job requirement than know-how and left reconstruction in the hands of inexperienced party loyalists.”
The Washington Post reported last year the $13 billion reconstruction project in Iraq was headed up by young, inexperienced politicos whose main qualification was they’d applied for jobs with the Heritage Foundation. Clueless, they were unable to get the project up and running. Today, only $2.2 billion of the funds allocated for the reconstruction of Iraq have been distributed.
In September, Sen. Chuck Hagel (R-NE) called that record “beyond pitiful and embarrassing; it is now in the zone of dangerous.” Two years after the invasion, Iraqis are suffering from major food shortages and the country is producing less electricity than it was before the war. In addition, the deterioration of water and sewage systems has led to the spread of hepatitis and outbreaks of typhoid fever.
And the above doesn't include the $8.8 Billion that was just plain lost in Iraq by the transitional government.
They have failed our troops and needlessly contributed to their death and injuries through their negligence.
The New York Times reported that a “secret Pentagon study has found that as many as 80 percent of the marines who have been killed in Iraq from wounds to the upper body could have survived if they had had extra body armor.” Body armor “has been available since 2003, but until recently the Pentagon has largely declined to supply it to troops despite calls from the field.” Additionally, the Pentagon has refused to reimburse troops who purchased their own armor. [New York Times, 1/7/06; AP, 9/30/05]
After making the fatal flaw of de-Baathification and dismantling the Iraqi Army without disarming the Iraqi army. Bush and Rumsfeld have also failed at the effort to train Iraqi Security forces. Wapo.
In dozens of official interviews compiled by the Army for its oral history archives, officers who had been involved in training and advising Iraqis bluntly criticized almost every aspect of the effort. Some officers thought that team members were often selected poorly. Others fretted that the soldiers who prepared them had never served in Iraq and lacked understanding of the tasks of training and advising. Many said they felt insufficiently supported by the Army while in Iraq, with intermittent shipments of supplies and interpreters who often did not seem to understand English.
Over the last year the Insurgency has continued to grow, Moqtada al-Sadr's militia forces have grown to nearly 60,000 - his prominence has risen to the point that he has nearly shutdown the Iraqi goverment.
All of this could have been foreseen and avoided, if the occupation had been handled by the State Department - who like Clark's al-Qaeda plan, also had plans for Iraq sitting on the shelf.
From Gen Zinni on Meet the Press (Video)
I saw the - what this town is known for, spin, cherry-picking facts, using metaphors to evoke certain emotional responses or shading the context. We know the mushroom clouds and the other things that were all described that the media has covered well. I saw on the ground a sort of walking away from 10 years’ worth of planning. You know, ever since the end of the first Gulf War, there’s been planning by serious officers and planners and others, and policies put in place - 10 years' worth of planning were thrown away. Troop levels dismissed out of hand. Gen. Shinseki basically insulted for speaking the truth and giving an honest opinion.
All of these failures are clear examples of negligence which should be laid directly on the doorstep of "the Decider" who initiated and maintained them by refusing Donald Rumsfeld's resignation 3 three times, until finally accepting on November 8th 2006.
Casualty Count: 2,954 (And rising)
Exhibit C: Nuclear Proliferation
Since Bush took office North Korea has developed and tested a Nuclear Device. President Clinton had managed to freeze the North Korean Nuclear program in it's tracks.
North Korea did not separate a gram of plutonium while Bill Clinton was in office. He also stopped their missile tests.
Bush poured warm water on the wheels by walking away from that arrangement in his first few months in office.
For years, the United States and the international community have tried to negotiate an end to North Korea’s nuclear and missile development and its export of ballistic missile technology. Those efforts were dealt a severe setback in early October (2003), when Pyongyang acknowledged having a secret program to enrich uranium for use in nuclear weapons, shocking Washington and capitals around the world.
The Clinton administration subsequently pursued talks with Pyongyang to limit its ballistic missile programs but was unable to finalize an agreement. After suspending talks in March 2001 pending a policy review, the Bush administration expressed a willingness to meet with Pyongyang, but President George W. Bush also named North Korea part of an “axis of evil” and linked progress on nonproliferation with other issues that delayed talks. North Korea’s admission of having a uranium enrichment program now calls into question the future of U.S.-North Korean relations, in particular the implementation of the Agreed Framework.
The end result of yet another example of Bush's failure to act responsibly is that North Korea abandoned the framework that had been agreed to under Clinton.
U.S. intelligence had detected signs near the end of the Clinton years that the North Koreans were trying to evade the freeze by beginning a uranium program. When confronted with the evidence in 2002, the North Koreans admitted it and offered to put that program on the table as part of a comprehensive deal. Bush used it as an excuse to walk away from negotiations. He thought he did not need to talk to the North Koreans. He thought he could overthrow the regime.
He failed. He issued threats and drew lines in the sand. The North Koreans walked right past them. They threw out the IAEA inspectors in December 2002, while Bush was preparing to invade Iraq. The month after the invasion, they withdrew from the Non-Proliferation Treaty. In 2005, they reprocessed plutonium from the fuel rods Clinton had made them keep in pools under IAEA inspection. They took another load of fuel out of the reactor and processed more plutonium. They reloaded the reactor to make even more plutonium. They tested missiles, they made bombs, now they have tested a bomb.
Bush did nothing.
Again. Just as he has repeatedly refused to engage and negotatiate with Iran, regardless of the progress made when Kennedy talked to Kruschev, when Nixon went to China, when Reagan talked to Gorbachev - Bush continues to refuse to do his job - and the result has put millions of Americans, and the world, at greater risk.
And this becomes truly criminal when it's revealed that some Bush administration officials wanted North Korea to have the bomb so that they could justify an invasion, and yet another round of regime change.
October 2006: Senior Bush administration officials wanted North Korea to test a nuclear weapon because it would prove their point that the regime must be overthrown.
This astonishing revelation was buried in the middle of a Washington Post story published yesterday. Glenn Kessler reports from Moscow as he accompanies Secretary of State Condoleezza Rice:Before North Korea announced it had detonated a nuclear device, some senior officials even said they were quietly rooting for a test, believing that would finally clarify the debate within the administration.
Until now, no U.S. official in any administration has ever advocated the testing of nuclear weapons by another country, even by allies such as the United Kingdom and France.
Escalation Roulette is not a game the President or his administration should be playing.
Exhibit D: Katrina
Bush on Good Morning America with Diane Sawyer (Video).
"I don't think anybody anticipated the breach of the levees."
Yet again, Bush is wrong. Someone did anticipate the Breach of the Levees and that some did indeed inform the White House.
In the 48 hours before Hurricane Katrina hit, the White House received detailed warnings about the storm's likely impact, including eerily prescient predictions of breached levees, massive flooding, and major losses of life and property, documents show.
A 41-page assessment by the Department of Homeland Security's National Infrastructure Simulation and Analysis Center (NISAC), was delivered by e-mail to the White House's "situation room," the nerve center where crises are handled, at 1:47 a.m. on Aug. 29, the day the storm hit, according to an e-mail cover sheet accompanying the document.
The NISAC paper warned that a storm of Katrina's size would "likely lead to severe flooding and/or levee breaching" and specifically noted the potential for levee failures along Lake Pontchartrain. It predicted economic losses in the tens of billions of dollars, including damage to public utilities and industry that would take years to fully repair. Initial response and rescue operations would be hampered by disruption of telecommunications networks and the loss of power to fire, police and emergency workers, it said.
In other words city resources would be overwhelmed by the size of the catastrophy, effective and rapid state and federal aid would be crucial to preserve life.
The warning was based on the result of Hurricane Pam, a simulation which had been perfomed during the previous year.
This point was also made directly to President Bush during a video conference days prior the Katrinas landfall.
(Video) Federal officials warned President Bush and his homeland security chief of possible devastation just before Hurricane Katrina struck. Six days of video footage from briefings and transcripts were obtained by The Associated Press. The warnings were that the storm could [overtop] levees, risk lives in the New Orleans Superdome and overwhelm rescuers.A-P reports Bush didn't ask any questions during the final government-wide briefing the day before Katrina struck on August 29th....more.
The briefer who brought up the subject of possible overtopped leaves was Max Mayfield, head of the National Weather Service. It was Max who was able to convinced New Orleans Mayor Ray Nagin to perform a full city-wide manditory evacuation on August 28th. That evacuation suceeded in removing 80% of the cities occupants, when most cities have no full evacution plan and would normally only expect about 30% of their citizens to leave.
Once Katrina hit and the levees did breach, local resources were overwhelmed. Rather than provide leadership and ensure that the support they needed was made available, Bush went on vacation.
Days passed while the U.S. Coast Guard and Fish and Wildlife Commission fielded a massive rescue operation, which unfortunately after saving people from drowning in their own homes desposited them to die of starvation and dehydration on the freeway overpass or Superdome. FEMA employee Marty Bahamonde who was in the Superdome was writing desperate emails to Director Michael Brown.
On Aug. 31, Bahamonde e-mailed Brown to tell him that thousands of evacuees were gathering in the streets with no food or water and that "estimates are many will die within hours."
"Sir, I know that you know the situation is past critical," Bahamonde wrote. "The sooner we can get the medical patients out, the sooner we can get them out."
Medical supplies, MRE's, water and buses to take the evacuees out of the disaster area did not arrive for days. Fingerpointing between Mayor Nagin, Governor Blanco, Michael Brown and Home Secretary Chertoff are not acceptable.
An American city drowned and over a thousand Americans died of neglect while Bush fiddled with guitar.
Yet another example of criminal negligence and dereliction of duty on behalf of George W. Bush.
Casualty Count: 1723.
Exhibit E: Signing Statments
The Presidential Oath of Office is as follows:
"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.".
President George W. Bush has violated that oath over 700 times through the use of extra-Constitutional Signing Statements designed to subvert the will of Congress.
From the Boston Globe.
WASHINGTON -- The American Bar Association's House of Delegates voted yesterday to call on President Bush and future presidents not to issue ``signing statements" that claim the power to bypass laws, and it urged Congress to pass legislation to help courts put a stop to the growing practice.
After an hour's debate, the ABA voted to declare that it ``opposes, as contrary to the rule of law and our constitutional system of separation of powers, the misuse of presidential signing statements by claiming the authority . . . to disregard or decline to enforce all or part of a law the president has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress."
The Congressional Research Service has also denouced these statements.
In a 27-page report written for lawmakers, the research service said the Bush administration is using signing statements as a means to slowly condition Congress into accepting the White House's broad conception of presidential power, which includes a presidential right to ignore laws he believes are unconstitutional.
The ``broad and persistent nature of the claims of executive authority forwarded by President Bush appear designed to inure Congress, as well as others, to the belief that the president in fact possesses expansive and exclusive powers upon which the other branches may not intrude," the report said.
Under most interpretations of the Constitution, the report said, some of the legal assertions in Bush's signing statements are dubious. For example, it said, the administration has suggested repeatedly that the president has exclusive authority over foreign affairs and has an absolute right to withhold information from Congress. Such assertions are ``generally unsupported by established legal principles," the report said.
Article II Section 3 of the U.S. Constitution regarding the President.
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
The duty of the President is not to reinterpret the laws, or to attempt to upsurp power from the Congress (or the Court) - his job is to take care that the laws be faithfully executed.
As he has failed in his duty in so many areas through neglect and dereliction, he has failed in this regard as well through willful disregard..
U.S. Constitution Article II Section 4.
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
From the Medical Sentinel (Published in 1999).
Impeachment, according to the Founding Fathers, was the remedy for those officials who through professional or personal misconduct violated the public trust and vitiated our republican form of government. Accordingly, Article VI, Paragraph 3, of our constitution provides, "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution...." And Article II, Section 4 notes, "The President, Vice President and all civil Officers of the United States, shall be removed from Office on impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
The Founding Fathers defined treason in Article III, Section 3, Paragraph 1: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."
Bribery was, and remains, well understood, then and now --- namely, the intention to corrupt or influence, particularly public policy, by offering, or a government official accepting, something such as money or favor, quid pro quo, his vote or support in a particular public policy matter.
Which brings us to "other high Crimes and Misdemeanors." As constitutional lawyer Ann Coulter correctly notes in her book, High Crimes and Misdemeanors --- The Case Against Bill Clinton (Regnery Publishing, 1998): "The derivation of the phrase 'high crimes and misdemeanors' has nothing to do with crimes in English common law for which public servants could be impeached," but had much to do with dishonorable conduct or a breach in the public trust.
I submit that President George W. Bush has repeatedly breached the public trust when he perpetrated a fraud on the American public using false intelligence to justify the Iraq War, when he commited Domestic Espionage against the American people, when he commited War Crimes and authorized Torture, when with his repeated dereliction of duty in regards to Al-Qaeda, our Troops in the Iraq and Afghanistan Wars, Nuclear Proliferation in North Korea and Iran, failure to respond to Katrina and Signing Statments which attempt to grant him not only the power to execute the laws, but to also re-write the law on the fly.
These charges are not restricted to George W. Bush, but also include other Constitutional Officers such as Richard Cheney, Condoleeza Rice, Albero Gonzales, Michael Chertoff and Donald Rumsfeld who may have aidded and abetted in this High Crimes and Misdemeaners.
In a recent article on Findlaw, former White House Counsel John Dean has argued that the Impeachment of George W. Bush is an impossibility, and that consequently there should be a refocusing of energies on offices below that of Vice-President.
There Is No Chance Either Bush or Cheney Will Be Removed From Office
The Republican Congress shamed itself when it impeached and tried President William Jefferson Clinton. It was a repeat of what an earlier Republican Congress had done to President Andrew Johnson, following the Civil War. Both proceedings were politics at their ugliest.
Democrats, when they undertook to impeach Richard Nixon, moved very slowly, building bipartisan support for the undertaking. Nixon, of course, resigned, when it became apparent that the House had the votes to impeach and the Senate had the votes to convict, with his removal supported by Democrats and Republicans, and conservatives and liberals alike.
Getting the necessary two-thirds supermajority in support of impeachment in today's Senate, which is virtually evenly-divided politically, is simply not possible.
Quite obviously, Bush and Cheney have not acted alone in committing "high crimes and misdemeanors." Take a hypothetical (and there are many): Strong arguments have been made that many members of the Bush Administration - not merely Bush and Cheney -- have engaged in war crimes. If war crimes are not "high crimes and misdemeanors," it is difficult to imagine what might be. Jordan Paust, a well-know expert on the laws of war and a professor at University of Houston Law Center, has written a number of scholarly essays that mince few words about the war crimes of Bush's subordinates. For example, many of their names are on the "torture memos."
I think Dean's point is well taken, but I would add this: If you can successfully and clearly lay out the case and address each issue concisely, and further show how they are connected - as I have attempted to do - it becomes clear that Impeaching George W. Bush is a neccesity, not for the High Crimes he has already commited, but to prevent what further Constitutional errors his is very likely to commit considering his track record. And further, their clear and highly illegal attempts to hide their crimes using an disinformation campaign of propaganda - only makes their guilt all the more obvious and damning.
The continuance of this Presidency and his Administration are a Clear and Present Danger to this Nation and the World.
I agree that simple numbers make it unlikely that the case will easily succeed in the Senate, and that Impeaching in the House only to fail to remove would be a sinful partisan mockery. However, by starting Impeachment at the most vulnerable point - which I would argue is probably Alberto Gonzales for his involvement in War Crimes now that Donald Rumsfeld has finally resigned - it may be possible to begin systematically dismantling the Bush Administration one piece at a time.
It's true that best way to collapse a house of cards is to take out it's foundation. Removing key players such as Gonzales would leave Bush exposed to not only Congressional subpeona's but a new 110th Congress-approved Attorney General who might not look quite so eskance at the appointment of a Independant Counsel such as Patrict Fitzgerald to seriously investigate the various and sundrie crimes of the Bush Administration and finally BRING. THEM. DOWN.
The future of our nation depends on it.
Monday, December 18
Sunday, December 17
The countdown to the start of the 110th Congress is growing shorter. Although Majority Leader Reid and Speaker Pelosi have put Impeachment "Off the table" - simply because at this point in time most of the American public would not support such a move, and would consider it merely partisan maneuvering as was the Impeachment of William Jefferson Clinton.
On this point I believe they are correct, thus the terms have to modified. Impeachment has to be seen as merely the first step toward the ultimate goal of Removal, Indictment and Prosecution of those who have committed crimes against our Constitution. Thus I present Count 3 in my multipart series on why George W. Bush must be Impeached.
The Impeachment Case Against George W. Bush - Count 3 : War Crimes, Conspiracy, Torture and Murder. George W. Bush, Dick Cheney, Alberto Gonzales and Donald Rumsfeld did commit a series of Capital Crimes with malice aforethought, including grave breaches in the Geneva Conventions and the Laws of War - actions which have led to numerous counts of maltreatment of prisoners and torture up to and including over
Exhibit A: The Gonzales Memo Following the attacks on the World Trade Center and Pentagon on 9/11 - America moved into a War Footing against Al-Qeada and Afghanistan. Congress passed the Authoritzation to Use Military Force, and our government began to grapple with the issue of how to handle captured prisoners and terrorist suspects.
On January 24, 2002 Alberto wrote a Memo (PDF) addressing this subject.
"It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act]," Gonzales wrote. The best way to guard against such "unwarranted charges," the White House lawyer concluded, would be for President Bush to stick to his decision--then being strongly challenged by Secretary of State Powell-- to exempt the treatment of captured Al Qaeda and Taliban fighters from Geneva convention provisions.
"Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution," Gonzales wrote.
Although many at the time claimed the the exception of Taliban and Al-Qeada fighters from Geneva was done because neither were signatories of Geneva, the truth is very different. First of all the fact that they aren't signatories is irrelevant - We Are Signatories and as such we are required to abide by Geneva.
Geneva Article 2
In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
But as was shown from his memo Gonzales had a different concern altogether. He was worried that some "wacky" prosecutor might determine that the Administration had violated 18 USC 2441 - the War Crimes Act - which states.
(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(c) Definition.— As used in this section the term "war crime" means any conduct—
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
The Conventions lay out specifcally how Prisoners of War are to be identified and defined - and it's fair to say that the fact that Al-Qaeda and Taliban fighters do not wear a uniform or have specific insignia exempts them from that category.
They can not be considered Prisoners of War under Geneva, although the definition of an armed militia under Article 4 comes very close.
- Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
And even if the lack of a "distinctive sign" causes the Militia defintion to not apply to Al-Qeada or the Taliban as alleged by Gonzales - Article 5 settles the matter.
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
And just what are those protections? The following.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording which are recognized as indispensable by civilized peoples.
So in summary, Gonzales letter shows that he was aware of the President's deliberate intention to subject captured al-Qeada and Taliban members to cruel treatment, torture, humiliation and degradation and restrict their access to the courts. All of which are clearly grave breaches of Geneva and punishable by fines, life imprisonment and the death penalty under United States Federal Law.
This memo effectively laid the groundwork for all that was to follow - which was a series of deliberate criminal acts. This memo is proof a Conspiracy to Commit Torture. His attempts to deflect and distract from these crimes by calling some of the minor provisions of Geneva "quaint" are as transparent as they are pathetic.
Exhibit B: The Bybee Memo. Clearly still concerned that the Presidents determination to exclude the entire newly created classification of "Enemy Combatant" from Geneva might not actually stand up to any reasonable judicial scrutiny - ha, imagine that - in August of 2002 Gonzales requested a memo from the DOJ's Office of Legal Counsel to re-define torture so as to ensure it's availability to U.S. interrogators while still remaining under the radar of Geneva, 2441 and also 2340.
We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent to intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. We conclude that the mental harm also must result from one of the predicate acts listed in the statute, namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual’s personality; or threatening to do any of these things to a third party.
Section 2340 of U.S. Law States:
(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.
What we have here is a situation where those who would normally be the Prosecutors in a case of War Crimes or Torture have been requested by the White House to Act as Defense Counsel in order to help them avoid possible prosecution for their intended crimes. It's the equivelent of allowing a Jaywalker to redraw the crosswalk lines in the middle of the street - as he's crossing it. By claiming that torture isn't "torture" until the subject either losses a limb, suffers organ failure and dies - then practically anything that leaves the person alive and breathing with all of their fingers and toes -- would not be torture under the legal definition.
Common sense tells us a different story.
And another problem here is that the White House and the Prosecutors do not determine what is an isn't the law - Congress and Judges do. (Although Jay Bybee has now been appointed as a Federal Appeals Judge (In the 9th Circuit - the one which reviews the DC Court), he wasn't at the time that he headed the OLC and therefore his opinions then are not "opinions of the court" in the legal sense.)
Exhibit C: The Rumsfeld Papers Following the Gonzales and Bybee Memos, Rumsfeld issued his own memo in December of 2002 in response to a request from "additional techniques beyond those in the field manual" from soldiers in Guantanemo Bay. From the the ACLU's Torture Timeline
Rumsfeld prescribes new interrogation policy for Guantanamo, authorizing "stress positions," hooding, 20-hour interrogations, removal of clothing, exploiting phobias to induce stress (e.g., fear of dogs), prolonged isolation, sensory deprivation, and forced grooming. These techniques soon spread to Afghanistan and later to Iraq.
Later the Pentagon convened a woking group which began to apply the re-definition of torture to detainee treatment in March of 2003. From the Wapo.
Another memorandum, dated March 6, 2003, from a Defense Department working group convened by Defense Secretary Donald H. Rumsfeld to come up with new interrogation guidelines for detainees at Guantanamo Bay, Cuba, incorporated much, but not all, of the legal thinking from the OLC memo. The Wall Street Journal first published the March memo.
34 new techniques were recommended by the Working group, Rumsfeld ultimately approved the use of 24 of them including isolation, "inducing fear", false flag and stress positions.
The paper trail from the White House to the Pentagon and eventually to Guantanamo Bay, Bagram AFB in Afghanistan and Abu Ghraib is direct, obvious and miles upon miles wide.
And the severity of the abuse is far deeper than what has be hinted at by the Abu Ghraib Scandal.
WASHINGTON — Pentagon documents released Monday disclosed that Iraqi prisoners had lodged dozens of abuse complaints against U.S. and Iraqi personnel who guarded them at a little-known palace in Baghdad converted to a U.S. prison. Among the allegations was that guards had sodomized a disabled man and killed his brother, whose dying body was tossed into a cell, atop his sister.
The documents, obtained in a lawsuit against the federal government by the American Civil Liberties Union, suggest for the first time that numerous detainees were abused at Adhamiya Palace, one of Saddam Hussein's villas in eastern Baghdad that was used by his son Uday. Previous cases of abuse of Iraqi prisoners have focused mainly on Abu Ghraib prison.
A government contractor who was interviewed by U.S. investigators said that as many as 90 incidents of possible abuse took place at the palace, but only a few were detailed in the hundreds of pages of documents released Monday.
The documents also touch on alleged abuses in other U.S.-run lockups in Iraq. The papers include investigative reports linking some abuses to ultrasecret Pentagon counter-terrorism units.
Since the start of the Iraq War over 100 detainees have died in custody. The circumstances for these deaths have varied wide, some died of natural causes, other during riots or other acts of violence - but a few - were killed as a result of abuse, some died while being interrogated (which would indicate a clear violation of 2441 and 2340 even with the Gonzales and Bybee "re-interpretations")
The Pentagon has never provided comprehensive information on how many prisoners taken during the wars in Iraq and Afghanistan have died. The 108 figure, based on information supplied by Army, Navy and other government officials, includes deaths attributed to natural causes.
To human rights groups, the deaths form a clear pattern.
"Despite the military's own reports of deaths and abuses of detainees in U.S. custody, it is astonishing that our government can still pretend that what is happening is the work of a few rogue soldiers," said ACLU Executive Director Anthony D. Romero. "No one at the highest levels of our government has yet been held accountable for the torture and abuse, and that is unacceptable."
In Iraq, the military is currently holding around 8,900 people at its two largest prisons, Abu Ghraib and Camp Bucca.
At least two prisoners died during interrogation, in incidents that raise the question of torture. Human rights groups say there are others:
_ Manadel al-Jamadi, a suspect in the bombing of a Red Cross facility in Baghdad, died Nov. 4, 2003, while hanging by his wrists in a shower room at Abu Ghraib prison. Nine SEALs and one sailor have been accused of abusing al-Jamadi and others in Iraq. The CIA and Justice Department are also investigating the death.
_ Four Fort Carson, Colo., soldiers, including three in military intelligence, are charged with murder for the death of an Iraqi major general who died in November 2003. The CIA has also acknowledged that one of its officers may have been involved and referred the case to the Justice Department for investigation.
According to documents gahered by the ACLU, coercive interrogations have led to the deaths of detainees at Bagram AFB in Afghanistan and the Red Cross indicates that 70%-90% of those held at Abu Ghraib are being held by mistake. The U.S. has paid bounties for terrorist suspects which to thier being sold into captivity and lining holds of Bagram and Gitmo with even more innocent persons.
But that's not the worst of it, the real problem is the question of exactly what has happened to those detainees who have literally disappeared.
Exhibit D: The Ghost Detainees As the number of detainees began to mount, certain "high value targets" began to vanish. Hidden from the Red Cross, these detainees were taken to Secret Prison Installations under the direct orders and approval of President George W. Bush - a clear violating of multiple international laws.
According to Human Rights Watch some of those Ghost Detainees included:
1. Ibn al-Shaikh al-Libi (Libya)
2. Abu Zubayda, a.k.a. Zubeida, Zain al-`Abidin Muhammad Husain, `Abd al-Hadi al-Wahab (Palestinian)
3. Omar al-Faruq (Kuwait)
4. Abu Zubair al-Haili, a.k.a. Fawzi Saad al-`Obaydi (Saudi Arabia)
5. Ramzi bin al-Shibh (Yemen)
6. Abd al-Rahim al-Nashiri, a.k.a. Abu Bilal al-Makki, Abdul Rahman Husain al-Nashari, formerly Muhammad Omar al-Harazi (Saudi Arabia or Yemen—Born in Mecca, Saudi Arabia)
7. Mustafa al-Hawsawi (Saudi Arabia)
8. Khalid Shaikh Muhammad, a.k.a. Shaikh Muhammad, Ashraf Ref`at Nabith Henin, Khalid `Abd al-Wadud, Salem `Ali, Fahd bin Abdullah bin Khalid (Kuwait)
9. Waleed Muhammad bin Attash, a.k.a. Tawfiq ibn Attash, Tawfiq Attash Khallad (Yemen)
10. Adil al-Jazeeri (Algeria)
11. Hambali, a.k.a. Riduan Isamuddin (Indonesia)
Bush has argued that the techniques used to interrogate Zubaydah we're not "torture" - but then again the only proof of that is merely that Zubaydah apparently survived the process under "Bybee Rules" - and that they were effective in helping capture Khalid Shaikh Muhammad.
Too bad that simply isn't true as Ron Suskind has revealed.
Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be. CIA and FBI analysts, poring over a diary he kept for more than a decade, found entries "in the voice of three people: Hani 1, Hani 2, and Hani 3" -- a boy, a young man and a middle-aged alter ego. All three recorded in numbing detail "what people ate, or wore, or trifling things they said." Dan Coleman, then the FBI's top al-Qaeda analyst, told a senior bureau official, "This guy is insane, certifiable, split personality."
Abu Zubaydah also appeared to know nothing about terrorist operations; rather, he was al-Qaeda's go-to guy for minor logistics -- travel for wives and children and the like. That judgment was "echoed at the top of CIA and was, of course, briefed to the President and Vice President," Suskind writes. And yet somehow, in a speech delivered two weeks later, President Bush portrayed Abu Zubaydah as "one of the top operatives plotting and planning death and destruction on the United States." And over the months to come, under White House and Justice Department direction, the CIA would make him its first test subject for harsh interrogation techniques.
How Zudaybah was interrogated was elaborated on by Gerald Posner.
Posner elaborates in startling detail how U.S. interrogators used drugs—an unnamed "quick-on, quick-off" painkiller and Sodium Pentothal, the old movie truth serum—in a chemical version of reward and punishment to make Zubaydah talk. When questioning stalled, according to Posner, cia men flew Zubaydah to an Afghan complex fitted out as a fake Saudi jail chamber, where "two Arab-Americans, now with Special Forces," pretending to be Saudi inquisitors, used drugs and threats to scare him into more confessions.
Zudaybah eventually provided the names of several members of the Saudi Royal family who had alleged ties to Bin Laden. Within weeks all of people had died under mysterious circumstances, preventing them from being questioned by U.S. authorities permenently.
Whether the information provided by Zubaydah was accurate or simply disinformation design to allow him to escape torture remains unclear. But it's clear that other Ghost Detainees wuch as Ibn al-Shaikh al-Libi (who provided many of the incorrect claims of Iraqi WMD) have been proven to be liars.
By voiding the Geneva requirement for judicial review of detainees and their status the likelyhood that mistaken identity and/or innocent persons may be caught in the net of anti-terrorism increases dramatically.
13 CIA Agents have been ordered to be arrested in Italy for the kidnapping and rendition of Abu Omar (aka Osama Moustafa Hassan Nasr) an Egyptian who was taken to Cairo and tortured for two years - except that he was the wrong person.
As was Khalid Masri, who was kidnapped in the Balkans and flown to Afghanistan and held for four months. German officials have been investigating.
And so was Maher Arar, Canadian National whose name was mistakenly included on a terrrorist watch list as he attempted to change planes at Kennedy International Airport, where he was detained - deported to Syria and tortured.
Although it could be argued that the actual torture was not conducted by U.S. personnel in these cases, it's clear that these persons would not have been subjected to these conditions if not for U.S. actions and premeditation. These are acts of Conspiracy and subject to the same pentalty as those who actually may have performed the torture under U.S. Law.
Exhibit E: The Hamdan Decision. Although Gonzales and Bybee have attempted to provide legal cover for these actions, the entire house of cards they had erected came crashing down in a very large thud with the delivery of the Hamdan Decision which ruled that the Geneva Conventions do indeed apply to "Enemy Combatants". This decision made everything they had done prior to that point, a potential War Crime.
Article 3 of the Geneva Convention (III)Relative to the Treatment of Prisoners of War,Aug. 12,1949, [1955 ] 6 U..S.T.3316,3318,T.I.A.S.No.3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law. See id.,at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered "war crimes," punishable as federal offenses,when committed by or against United States nationals and military personnel. See 18 U.S.C.§2441. There should be no doubt,then,that Common Article 3 is part of the law of war as that term is used in §821.
Hamdan is entitled to the full protections of the Third Geneva Convention until adjudged, in compliance with that treaty, not to be a prisoner of war; and that, whether or not Hamdan is properly classified as a prisoner of war, the military commission convened to try him was established in violation of both the UCMJ and Common Article 3 of the Third Geneva Convention because it had the power to convict based onevidence the accused would never see or hear.
Realizing this the CIA Interrogators actually Went on Strike.
The Bush administration had to empty its secret prisons and transfer terror suspects to the military-run detention centre at Guantánamo this month in part because CIA interrogators had refused to carry out further interrogations and run the secret facilities, according to former CIA officials and people close to the programme.
The Administration reacted strongly to this decision and urged the passage of the Military Commissions Act. Much of the discussion of this act has surrounded it's neutering of Habeas Corpus and it's "re-interpretation of Geneva", but of even greater danger is the fact that this law amended The War Crimes and Torture Acts to apply the Bybee Standard. 2441 and 2340 have been updated as follows:
‘‘(1) PROHIBITED CONDUCT.—In subsection (c)(3), the term
‘grave breach of common Article 3’ means any conduct (such
conduct constituting a grave breach of common Article 3 of
the international conventions done at Geneva August 12, 1949), as follows:
‘‘(A) TORTURE.—The act of a person who commits, or
conspires or attempts to commit, an act specifically
intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful
sanctions) upon another person within his custody or phys-ical control for the purpose of obtaining information or
a confession, punishment, intimidation, coercion, or any
reason based on discrimination of any kind.
‘‘(B) CRUEL OR INHUMAN TREATMENT.—The act of a
person who commits, or conspires or attempts to commit,
an act intended to inflict severe or serious physical or
mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical
abuse, upon another within his custody or control.
‘‘(C) PERFORMING BIOLOGICAL EXPERIMENTS.—The act
of a person who subjects, or conspires or attempts to sub-ject, one or more persons within his custody or physical
control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body
or health of such person or persons.
‘‘(D) MURDER.—The act of a person who intentionally
kills, or conspires or attempts to kill, or kills whether
intentionally or unintentionally in the course of committing
any other offense under this subsection, one or more per-sons
taking no active part in the hostilities, including those
placed out of combat by sickness, wounds, detention, or
any other cause.
‘‘(2) DEFINITIONS.—In the case of an offense under sub-section
(a) by reason of subsection (c)(3)—
‘‘(A) the term ‘severe mental pain or suffering’ shall
be applied for purposes of paragraphs (1)(A) and (1)(B)
in accordance with the meaning given that term in section
2340(2) of this title;
‘‘(B) the term ‘serious bodily injury’ shall be applied
for purposes of paragraph (1)(F) in accordance with the
meaning given that term in section 113(b)(2) of this title;
‘‘(C) the term ‘sexual contact’ shall be applied for pur-poses
of paragraph (1)(G) in accordance with the meaning
given that term in section 2246(3) of this title;
‘‘(D) the term ‘serious physical pain or suffering’ shall
be applied for purposes of paragraph (1)(B) as meaning
bodily injury that involves—
‘‘(i) a substantial risk of death;
‘‘(ii) extreme physical pain;
‘‘(iii) a burn or physical disfigurement of a serious
nature (other than cuts, abrasions, or bruises); or
‘‘(iv) significant loss or impairment of the function
of a bodily member, organ, or mental faculty;
A fair reading of this would conclude that coercive interrogation that takes the victim literally to the edge of death - but allows for his being brought back in a manner that doesn't disfigure or maim them - would be perfectly ok. You could even induce death itself using chemicals and then repeatedly revive the subject using a CPR and a defribulator -- and it wouldn't be "torture" in Bushworld. Fortunately most of the rest of us, we don't live in that deluded fantasy land.
On the whole the Administration has done an incredible job of wrangling the law to produce the result they wish. Torture isn't torture. Significant bodily harm is no harm at all. A little dunk in the water is a "No Brainer".
In the wake of the Abu Ghraib scandal Congress lobbied for the passage of the Detainee Treatment Act of 2005, yet that act contains a fatal flaw - the Graham-Levin Amendment which blocks the detainees from access to the court where they can lodge abuse complaints. What is the point of "prohibiting torture" if you've also prohibited the tortured from complaining about it? Talk about "Don't ask - don't tell".
As the Hamdan decision made clear - The Bush Adminstration has repeatedly and deliberately violated the Geneva Conventions, they have committed War Crimes, Torture and Conspiracy under U.S. Law and grossly violated the 8th Amendment, but rather than correcting those actions they have - with the aid and complicity of the Repubilcan led 109th Congress - instead created even more clearly unconstitutional law such as the Detainee Treatment Act and Military Commission Act which are clearly unlikely to withstand any serious court challenge.
These actions have directly contributed to the abuse of hundreds of detainees, both innocent and not-so-innocent, including kidnapping and even murder. The Administration's Torture double-speak and permissive "anything-goes" attitude may even be traced to the tragedies of Haditha where dozens innocent Iraqi civilians were murder and Mahmoudiya where a teen age girl who was raped and burned along with her entire family - by U.S. Soldiers.
And even with all this information they've gathered using these techniques is highly suspect and may very well have led us directly into a false and unneccesary war with Iraq (see Count 1). The insurgency continues to rage undeterred. Terrorism has increased rather than ben reduced. This policy is a not only crime, it is a failure.
But these legal maneuvers have done nothing but delay the inevitable.
Although there have been multiple court mashalls and prosecutions of low level soldiers - and there should be - these crimes must be brought into account and ended at the source, and the only way to accomplish this is to Impeach, Remove, Indict and Prosecute George W. Bush, Dick Cheney, Alberto Gonzales and Donald Rumsfled exactly as Amnesty International in May 2005.
This policy must be stopped permenently - the American public must be shown that there is no other reasonable choice.