The Universal Evil of Unlawful Detention

Rock Band Mr. Mister played a Chilean festival in 1988, they probably did know that speaking up for other artists who were being repressed by Dictator Augusto Pinochet might lead to being held under House Arrest, and even their Lives threatened. They did it anyway. Ten years later a Spanish Judge would issue an arrest warrant for Pinochet, that same Judge may soon indict "The Bush Six".



Besides my own long-time involvement in music, my wife was a Rock journalist at this time, friends with members of the band. as well as active with Amnesty International. She actually met them backstage in San Diego not long after this incident and could feel the tension in the aftermath.


The truth is that Richard is really underplaying what happened in this interview. They were held under house arrest and only because of the outcry from Amnesty International were they released. Their guitar tech Dallas Shue's life was threatened, the experience was so intense and terrifying that guitarist Steve Farris later talked of suffering from PTSD, and eventually left the band at least partially because of the incident. (He later joined Whitesnake). Dallas was also the Guitar Tech for Dave Evans (aka "The Edge" from U2).

When Richard made his statement from the stage, the front rows of the audience which were mostly filled with Pinochet supporters booed and made a "cut-throat" motion. Richard was handed a note later in the set which was intended to be his "apology/alibi" for making the statement - he let it fall to with a word.

Pinochet was eventually tried, convicted and died under House Arrest in England as a War Criminal, but it's interesting to not that in 1998 Spanish Judge Baltasar Garzon issued a warrant for his arrest under the "Universal Jurisdiction" of War Crimes.

In 2005 Amnesty international called for the investigation and arrest of Bush, Cheney, Rumsfeld, Gonzales, Gen Miller and General Sanchez for Abu Ghraib.

Today that same Spanish judge may soon decide to issue a similar warrant against the "Bush 6", including Alberto Gonzales and Donald Rumsfeld for their involvement with the unlawful detention, "disappearing" of people, and torture.

The more things change, the more they stay the same.

If you don't know Mr. Mister's music besides the ballad "Broken Wings", here's a track from the movie "Stand and Deliver" (which is exactly what they did in Chile) featuring Edward James Olmos and Lou Diamond Phillips.



Vyan

By Every Means Unneccesary - Why Habeas is Gone Forever

This week President Bush in his head-long rush for Jack Bauer Justice signed the "Military Commissions Act of 2006 (pdf)", and act which essentially ends the great Writ of Habeas Corpus, allows for coerced and hearsay evidence and codifies various forms of torture as authorized under the law.

But the most shocking element of all of this is the very strong likelyhood that we just might not see the return of Habeas in our lifetimes.

Why not?

Because under the Consitution the Congress actually does have the authority to do what they did - Suspend Habeas.

In Hamdi V Rumsfeld the SCOTUS stated:

Likewise,we have made clear that,unless Congress acts to suspend it,the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance,serving as an important judicial check on the Executive 's discretion in the realm of detentions.

Habeas Defined:

The basic premise behind habeas corpus is that you cannot be held against your will without just cause. To put it another way, you cannot be jailed if there are no charges against you. If you are being held, and you demand it, the courts must issue a writ or habeas corpus, which forces those holding you to answer as to why. If there is no good or compelling reason, the court must set you free. It is important to note that of all the civil liberties we take for granted today as a part of the Bill of Rights, the importance of habeas corpus is illustrated by the fact that it was the sole liberty thought important enough to be included in the original text of the Constitution.

Military Commission Act:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

U.S. Constitution Under Article I (Limits and Powers of the Congress) states:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

In this case the "Invasion" is the ongoing infiltration of the United States by the agents of al Qeada - an endless condition of War where the public safety is always in jeopardy. So when exactly will the "public safety" no longer require it?

Never.

Historically speaking, George Bush isn't the first President to attempt to suspend Habeas. In 1861 President Lincoln Suspended Habeas during the Civil War, and had his decision overtuned by Justice Taney in Ex Parte Merryman.

Ex parte Merryman (literally "from one side," and therefore meaning "on behalf of Merryman") is the case of Lt. John Merryman, of the Baltimore County Horse Guards, who was imprisoned on May 25, 1861, in, of all places, Baltimore's Fort McHenry, on order of Union General Winfield Scott. Union troops had just occupied the city and began arresting suspected secessionists.

In Taney's response he stated:

As the case comes before me, therefore, I understand that the president not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him. No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the president claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of congress.

The clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department. It begins by providing "that all legislative powers therein granted, shall be vested in a congress of the United States, which shall consist of a senate and house of representatives."

In 1864 Congress passed a law which fit Haney's requirements and Suspended Habeas for the duration of the War and Reconstruction - this eventually lead to Ex Parte Milligan.

Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court in 1864. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War ended.

The Supreme Court decided that the suspension of habeas corpus was lawful, but military tribunals did not apply to citizens in states that had upheld the authority of the Constitution and where civilian courts were still operating, and the Constitution of the United States only provided for suspension of habeas corpus if these courts are actually forced closed. In essence, the court ruled that military tribunals could not try civilians in areas where civil courts were open, even during times of war.

In short, the Congressional Suspension of Habeas in response to a Rebellion (or Invasion) was upheld, and most likely would be upheld again even by the current Supreme Court since Congressional Authorization is exactly what they requested under Hamdi, which leaves all of us pretty much screwed for the foreseable future.

Even a New Congress is unlikely to overturn this law since 34 Democrats in the House and 12 in the Senate supported it - with only a slim margin projected for the Demcratic Majority in November - such a reversal would be far from Veto proof.

There are however some potential bright spots among the darkness.

in response to Hamdan V Rumsfeld John Dean argued against the MCA as it was being drafted.

Since the inception of the Bush Administration's war against terror, the President has claimed - unreasonably and without justification - that the Geneva Conventions do not apply to this war with stateless forces such as al Qaeda (or similar organizations) for they are not signatories to the Geneva Conventions. But Bush is wrong.

The Hamdan Court explained that "Article 3, often referred to as Common Article 3 because ... it appears in all four Geneva Conventions" applies here. Moreover, the Court noted, Common Article 3 prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

So the question is no longer purely a Constitutional one, but one which begs whether the Military Tribunals which have now been authorized actually satisfy Geneva as "regularly constituted courts". But clearly they do not include "all the judicial guarantees" - since Habeas is regards to "Enemy Combatants" is now non-functional.

Under Article VI it states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

By Ratifying Geneva in 1948, we have made it a part and equal to our own law and Constitution. This is further reiterated by Justice Stevens in Hamdan.

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.

Even though Bush has attempted to Redefine both Geneva, Torture and War Crimes with this Act - rewriting 18 U.S.C.18 U.S.C.§2441 into a laundry list what allegedly is and isn't covered - the core issue here is still whether these new tribunals are "regularly constituted" and whether this breach of Geneva would actually overide Congresses own legitimate authority to suspend Habeas?

On that point I am far from certain of the outcome.

There is another argument to made however - the Suspension of Habeas under the MCA (quoted above) clearly applies to "Alien Enemy Combatants" not neccesarily U.S. citizens, although U.S. Citizens can clearly be considered Enemy Combatants under this law - Hamdi (who is a U.S. Citizen) supports this view - the disparate treatment here between U.S. Citizens (who still retain some form of Habeas relief) and Non-Citizens who do not may present a 14th Amendment Equal Protection Challenge.

Hamdi was the first case to extend the 14th to cover areas outside the U.S. (such as those being held in Gitmo), this just might be the first case that I know of - if such a challenge is brought - to extend the 14th to Non-citizens under U.S. Jurisdiction and control. There are two suits against the MCA already, time will tell...

Although Habeas is now gone for aliens, the ability to challenge ones status as an Unlawful Enemy Combatant itself has been upheld and is retained in the current law (as part of the Combatant Status Review Tribunal).

``(c) DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS DISPOSITIVE.--A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.

Basically there are two Tribunals, the first of which is established by the President or SecDef for establish the status of a detainee. (Ironically, this is in according with Geneva, which requires that all persons of unknown status be given a hearing to determine their status). Under both the MCA and the Detainee Treament Act of 2005, the findings of the CSRT can be appealed to the DC Circuit Court.

This Judicial Obsticle Course is at least a maginal improvement over the current sitaution where we already know most of the combatants held at Gitmo are innocent and we've refused to release them.

[A deposition by Brig. Gen. Karpinski's (former Abu Ghraib CO)] cited the comments of another official, Maj. Gen. Walter Wojdakowski, who told her, "I don't care if we're holding 15,000 innocent civilians! We're winning the war!" A former commander of the 320th Military Police Battalion notes in a sworn statement, "It became obvious to me that the majority of our detainees were detained as the result of being in the wrong place at the wrong time, and were swept up by Coalition Forces as peripheral bystanders during raids. I think perhaps only one in ten security detainees were of any particular intelligence value."

Clearly if one is found by the CSRT to not be an Unlawful Combatant, one would not automatically go free. What should occur - in a far more prefect world than this one - is that they would then be relegated to the regular Civilian or Courts Marshal as a "Lawful Enemy Combatant". The CSRT itself is far from a "Get out of GITMO Free" Card. If the CSRT finding is "Unlawful", the detainee then skips "Go" and heads forward to his Military Tribunal Only if the President subsequently seeks to press charges -- if he does not, that person disappears into a black hole. Forever.

The very existence of this law is extremely onerous - particular the section which reduces the Geneva-based prohibitions against "Offenses to Personal Dignity" and instead prohibits torture - sort of.

TORTURE: Any person subject to this chapter who commits 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 physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commis-sion under this chapter may direct.

...

The term `serious physical pain or suffering'
means 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.

Guess what folks, the Bybee memo is now the law. A simple reading makes it plainly obvious that non-lethal methods of humiliation, and "non-severe" pain, which leave no visible marks, burns, cuts or abrasion and do not risk "organ failure" -- are absolutely permissable. This act is like a "How To" manual on how to became a Totalitarian Dictatorship, which is further underscored by the fact that coerced testimony is now allowed

STATEMENTS OBTAINED BEFORE ENACTMENT OF DETAINEE
TREATMENT ACT OF 2005.--A statement obtained before December
30, 2005 (the date of the enactment of the Defense Treatment
Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--
``(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and
``(2) the interests of justice would best be served by admission of the statement into evidence.

And for coercion which occured after the DTA this is added:

``(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005.

What is most tragic here, is the well known fact that Coercive Interrogation Techniques Simply don't Work. The subject is more likely to lie and fabricate than actually provide valid information. These heavy-handed uber-macho measures by the Administration are completely unneccesary. Ibn al-Libi was tortured and lied to us. Abu Zubaydah actually gave us some good information before he was tortured, then started lying after he was. If we want good and accurate information to protect Americans, coercian and pseudo torture is not the way - and it completely destroys the moral justification for our War against terror when we behave like terrorists.

Innocent muslims such as Abu Omar and Maher Arar have already been unlawfully detained (kidnapped actually in Omar's case) rendered to Egypt and Syria where they were tortured.

In Iraq AP Reporter Bilal Hussein has been held by U.S. Forces for the past five months - without a hearing.

These are not isolated cases - to date the U.S. nearly 50,000 people under detention worldwide. We're talking about a major humanitary crises here.

But if you listen to the Wingnut Brigade, the Human Rights and Dignity of these individuals of no concern to them what so ever - the goal of this law is FEAR - especially the fear into the New York Times and WaPo Editorial Board.

From RedState.com

One sees immediately why the definition of treason makes the Washington Post editorial board queasy. If they vacation in the Caribbean (how déclassé) they would prefer it not be at Club Gitmo and definitely not preceded by Donald Rumsfeld's bully boys kicking in their door, being flexi-cuffed, tossed in a blacked out LearJet with bogus registration numbers, dressed in an orange jumpsuit and then allotted a no-amenities guest room with Abdul.

Let's get serious - this isn't about stopping the next major bombing attack on U.S. Soil - it's about shutting up James Risen and all the reporters who've released classified material (like Bob Woodward) which happen to be a) True and b) Display a propensity for the Bush Administration to violate the law (such as FISA).

Now they've managed to use the law itself to justify their lawbreaking. Undoing this law completely will be difficult if not impossible until the Presidency changes hands, and even if it is corrected the damage to our international prestige may in fact be permenent. Meanwhile Al Qaeda is laughing at us as we gradually destroy ourselves and our own values.

Heckuvajob Bushie.

Vyan

Habeas Corpus dies with nary a whimper

From Thinkprogress:

President Bush signs the "Military Commissions Act of 2006″ today in the Rose Garden, a bill that will not grant detainees legal counsel. "Also, it specifically bars detainees from filing habeas corpus petitions challenging their detentions in federal courts." The new law sets the stage for what many analysts believe will be yet another historic showdown between the courts, the president, and Congress.

That's putting it mildly.

But what's so truly amazing about this event, is how little it's being covered, how little it's being noticed and how there is pratically no outcry at the undermining of our constitutional foundations what-so-ever.

That isn't to say that there hasn't been a reaction. Even before the legislation was signed two lawsuits were filed.

The new legislation, passed a week ago Friday, bars judges from hearing detainee lawsuits. Instead, it sets up a much more limited appeals process for detainees who are seeking to challenge their designation as an enemy combatant or to challenge a war crimes conviction by a military commission.

One suit was filed on behalf of Majid Khan, one of the 14 so-called high value Al Qaeda suspects recently transferred from secret Central Intelligence Agency prisons to the terrorist detention camp at Guantánamo Bay, Cuba. The other was filed on behalf of 25 detainees being held among some 500 men at Bagram Air Force Base in Afghanistan.

The outstanding question of course is whether this law actually bars these suits themselves, a decision which will have have to wait until a judge decides whether a judge can decide on this matter. Talk about Catch-22.

Major news outlets have virtually ignored this story, allowing the President's rhetoric about "our desperate need to question detainees" being one of our most "vital tools" in the War on Terror. The fact that the people who we are coercively questioning may not be terrorists at all doesn't seem to enter into his thinking.

From Yahoo News:

KABUL, Afghanistan - Sixteen Afghans and one Iranian released from years in captivity at Guantanamo Bay prison arrived in Afghanistan on Thursday, an Afghan official said, maintaining that "most" of the detainees had been falsely accused.

The 16 Afghans appeared at a news conference alongside Sibghatullah Mujaddedi, head of Afghanistan's reconciliation commission, which assists with the release of detainees from the American detention center at Guantanamo Bay, Cuba, and the U.S. prison at the Bagram military base north of Kabul.

Mejadedi said many of the detainees, who are now free, had served up to four years in Guantanamo. He said "most" of the prisoners were innocent and had been turned in to the U.S. military by other Afghans because of personal disputes.

"For four years they put me in jail in Cuba for nothing," said Shah, a doctor from the eastern province of Paktia whose hands shook from nervousness when he spoke.

"All these people (the other prisoners) and all those Afghans still in Cuba, they are innocent," he told reporters. "All were arrested because of false reports, and the Americans, without investigating, they arrested innocent people and put them in jail for a long time."

Another former prisoner, 20-year-old Habib Rahman, said he was arrested because he had a weapon in his home.

"They told me, 'You are against us, you are anti-American and anti-government and you are fighting with us,'" said Rahman. "At that time in our area everyone had weapons. I was innocent and I hadn't participated in any fighting."

Rahman said that he was treated harshly at Guantanamo, and was once kept awake for 38 hours while being questioned about ties to terrorists.

"The last time they tortured me like that was four months ago," he said. "They were kicking us all the time, beating us with their hands."

Please note that Rahman is 20-years-old now, that means that when he was taken to Gitmo - he was only 16.

Many of the detainee currently at Gitmo were actually sold into captivity by Afghan warlords.

Bounties ranged from $3,000 to $25,000, the detainees testified during military tribunals, according to transcripts the U.S. government gave The Associated Press to comply with a Freedom of Information lawsuit.

A former CIA intelligence officer who helped lead the search for Osama bin Laden told AP the accounts sounded legitimate because U.S. allies regularly got money to help catch Taliban and al-Qaida fighters. Gary Schroen said he took a suitcase of $3 million in cash into Afghanistan himself to help supply and win over warlords to fight for U.S. Special Forces.

Even though the ACLU has obtained a literal mountain of documention via the Freedom of Information Act - the issue of how these people, many of them innocent, are being treated still falls on deaf ears. Even when ABC News features reports of abuse from a former Gitmo Marine.
From Thinkprogress:

President Bush has consistently touted the U.S. detention facility in Guantanamo Bay as a "model prison," saying the American people should "ftake great pride" in the facility.

But a sworn statement by Marine Sgt. Heather Cerveny paints an entirely different picture. Cerveny has described how "she met several Navy prison guards at a club on the base where, over drinks, they described harsh physical abuse" of Gitmo detainees. The guards alledgedly told Cerveny of practices including "hitting the detainee's head into the cell door" and "punching [them] in the face." The Pentagon Inspector General today announced a new investigation into the claims.

Cerveny gave her first public comments on her charges last night to ABC News. You can read Cerveny's affidavit to the Pentagon Inspector General here (pdf).

Here's what Amnesty International (who over a year ago called for the Prosecution of George W Bush for War Crimes) has to say on the subject:

The past five years have seen the USA engage in systematic violations of international law, with a distressing impact on thousands of detainees and their families. Human rights violations have included:

o Secret detention
o Enforced disappearance
o Torture and other cruel, inhuman or degrading treatment
o Outrages upon personal dignity, including humiliating treatment
o Denial and restriction of habeas corpus
o Indefinite detention without charge or trial
o Prolonged incommunicado detention
o Arbitrary detention
o Unfair trial procedures

Yet at the same time, US officials have continued to characterize the USA as a "nation of laws" and one that in the "war on terror" is committed to what it calls the "non-negotiable demands of human dignity", including the "rule of law".

...

There is a stark "disconnect" between the USA and the international community. After all, President Bush's speech came only weeks after two expert United Nations bodies - the Committee against Torture and the Human Rights Committee - told the US government that secret detentions violated the USA's international treaty obligations. In effect, the President was rejecting the conclusions of these UN bodies, as well as admitting that the USA had resorted to enforced disappearance, a crime under international law.

The response of the US administration to the Hamdan v. Rumsfeld ruling has perhaps been even more shocking, although apparently not shocking enough to nudge Congress finally into calling the executive to account for "war on terror" abuses. Indeed, President Bush's defence of the CIA's program of secret detention and "alternative" interrogation techniques policy, which he said had been called into question by the Hamdan ruling and therefore needed congressional approval, showed an administration in assertively unapologetic mood.

Again, one can begin to trace the administration's manipulation of the law to fit its policy. According to a document recently issued by the Director of National Intelligence, after "high-value" detainee Abu Zubaydah was captured in Pakistan in March 2002 and handed over to the USA, he stopped "cooperation" with his US interrogators. In order to overcome this lack of cooperation, "over the ensuing months, the CIA designed a new interrogation program" and "sought and obtained legal guidance from the Department of Justice that none of the new procedures violated the US statutes prohibiting torture."

Any such claim of legality rings hollow. For until the Detainee Treatment Act was passed in December 2005 (in the face of executive opposition), Department of Justice lawyers took the position that because of the reservation attached to the USA's ratification of the Convention against Torture in 1994, the USA had no treaty obligation on cruel, inhuman or degrading treatment with respect to foreign nationals held in US custody overseas. In addition, in August 2002, the Justice Department provided legal advice in a memorandum which only came to light in mid-2004 after the Abu Ghraib torture revelations. It was reportedly written in response to a CIA request for legal protections for its interrogators. The memorandum stated among other things that interrogators could cause a great deal of pain before crossing the threshold to torture, that there were a "significant range of acts" that might constitute cruel, inhuman or degrading treatment but would not rise to the level of torture and be prosecutable under the US torture statute, and that the President could override international or national prohibitions on torture.(1)

Conservatives have scoffed at claims that Zubaydah was "tortured" claiming that they simply kept the lights on and played Red Hot Chili Peppers music for hours. In a nation where Jackass Number Two is a hit movie, bright lights and loud music could hardly be considered torture - it sounds more like a RAVE right? To hear the Right tell it, they were just warming him up for Round II of Fear Factor: Electrodes to the Gonads. Let's face it: Torture is likely to be our next Extreme Sport, to be scheduled at the Triple-X Games right after Base Jumping while on fire and swallowing male-cow jism.

But all dark humor aside, Time Magazine and author Gerald Posner paint a different picture:

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.

This is known as a "False Flag" operation - where U.S. officials pretend to be Saudi, Egyption or Israeli interrogators who don't have any of the "limits" which U.S. law (used to) place on our own people - and is itself a direct violation of the Geneva Conventions (Article 37).

However, it should be noted that most of the valuable information we received from Zubaydah, such as the identity of "Muktar" as Khallid Sheik Muhammad, and the indentity of Jose Padilla came before he was tortured, not after. Oh, and by the way - Zubaydah is nuts.

Pulitzer Prize-winning author Ron Suskind paints a more complicated picture of Zubaydah. In one of the most hotly discussed sections of his book "The One-Percent Doctrine," Suskind reveals that at least one top FBI analyst considered Zubaydah an "insane, certifiable, split personality" and that he was mainly responsible only for logistics like travel arrangements. According to Suskind's reporting, the interrogation methods used on Zubaydah -- waterboarding and sleep deprivation, among others -- only yielded information about plots that did not exist.

SUSKIND: In the case of Zubaydah, when it comes to some of the harsh interrogation tactics he was put through, what occurred then was that he started to talk. He said, as people will, anything to make the pain stop. And we essentially followed every word and various uniformed public servants of the United States went running all over the country to various places that Zubaydah said were targets, and were not.

Ultimately, we tortured an insane man and ran screaming at every word he uttered.

What has largely worked in all the interrogations, what we got -- and in many cases it's not very much -- but whatever we got, for the most part occurred because we were, let's just say, a little more clever than that. Instead of going medieval, which is the tactic our enemies here embrace, we essentially find a way to confuse their expectations. In many cases, just by treating them as human beings we have created an environment where we get what we so desperately need, which is information that might help save American lives.

That's the key. The key is to not give in to anger, but to do whatever works best. There's clearly been a learning curve on that; some of the harsh techniques used early on have been I think largely abandoned because they didn't work.

So let's review shall we?

We now have an Official Policy of Indefinate Detention without trial, access to a lawyer or a hearing for people who may in all likelyhood be completely innocent. We will be torturing these people even though doing so has repeatedly given us bad information (such as Zubaydah or Ibn Sheik al-Libi who lied to us about Saddam training Al-Qaeda on the use of chemical weapons, or Abu Omar an innocent Egyption man who was kidnapped by the CIA in italy and tortured or Maher Arar the innocent Canadian man who was taken into custody and tortured in Syria) but that using "soft techniques" such as "Treating them like Human Beings" actually works better. Imagine that, eh?

All of this has been implemented as an end-run around Hamdan and 18 US 2441 the War Crimes Act - which then White House counsel Alberto Gonzales claimed in 2002 that if applied might result in "unwarranted charges" against administation officials.

I would argue that they are entirely warranted, and long overdue.

It is also frequently overlooked that the definition of an "Enemy Combatant" does not exclude American citizens. Last Night during his interview with John Ashcroft, Keith Olberman - the lone broadcaster willing to seriously address this subject - put this very question to the former Attorney General:

OLBERMANN: In your new book, you have defended some of the more imposing efforts to fight terror and terrorism, and this subject is particularly relevant right now, because the president is set to sign the Military Commissions Act tomorrow, which is going to codify some of those efforts into law.

I`d like to read one of the definitions in the act and ask you a hypothetical about it, if I may. "The term `unlawful enemy combatant` means -- (i), a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant."

What is there in this new law that would check the president--or any president, not in terms of tradition or in terms of common sense nor even in terms of fear of bad publicity--but in that measure itself, if a president claims that you or I materially supported hostilities against America and declares us unlawful enemy combatants and he wants to send you and I off to Guantanamo Bay, where in the law does it say the president can`t do that?

ASHCROFT: Well, let me just first indicate that I have not read this new statute in its completeness.

I do believe that the president should have the authority to designate individuals who bear arms or take up hostility against the United States as enemy combatants. I think in doing so, the president has a responsibility to have a process that is consistent with the Constitution.

We have a president; we don`t have a king. And he has to make a determination based on facts.

Like the determination he made that Saddam Hussein was an imminant threat? The question posed by Olbermann is not an idle one. Jose Padilla is an American Citizen who has already been held as an "Enemy Combatant" without trial for years, as is Yaser Esam Hamdi. Normally it would be the job of the judiciary, an independant body free from the political winds, who would make the determination of what is fact and what is not regarding defendants and detainees (a Constitutional requirement which was recently reenforced by the Supreme Court in Hamdi v Rumsfeld (pdf)) -- but not anymore. Now the President himself can be judge, jury, torturer and even - executioner.

Is this what our nations forefathers fought and died to produce? Are these the actions of a nation which has touted freedom and justice as it's bedrock principles? I would hope and pray not - but with a stroke of a pen, President George W Bush has today murdered not only Habeas Corpus - not only our international moral standing and justification for our war against terror - he may have very well have murdered our democracy itself.

Vyan

Blumenthal on How Bush Rules, Torture and the Quest for Unfetterred Power

.thinkGuest writting at Thinkprogress, Sidney Blumenthal has laid down the direction of his new book, How Bush Rules: Chronicals of Radical Regime.

“We do not torture,” President Bush has said time and again. But Bush has approved techniques that are defined as torture under the Geneva Conventions. In fact, he abrogated U.S. compliance with Article 3 of the Conventions that specifically prohibits torture. Indeed, his then White House counsel and now attorney general Alberto Gonzales contemptuously referred to the Conventions as “quaint.”

In the infamous memo of August 1, 2002 written by the Justice Department’s Office of Legal Counsel, the so-called “Bybee memo,” after Jay Bybee, its director and since appointed by Bush to a federal judgeship, the Conventions were shoved aside and the definition revised. Rather than the Conventions stipulations against “cruel, inhumane and degrading” treatment of prisoners and “outrages upon personal dignity, in particular, humiliating and degrading treatment,” the administration adopted new standards: “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.” The Bush administration’s new torture policy prompted the export of torture technique from Guantanamo to Abu Ghraib.

But the Bybee memo wasn't the start of BushGov's obsession with torture. As I've pointed out here, here and here - in early 2002, eight months prior to the Bybee memo request, then Attorney General Alberto Gonzales began the process to have terrorism detainees excluded from Geneva not because they didn't have valid status - Geneva applies to all prisons regardless of whether they are soldiers of a specific nation or not - but because Gonzales wished to avoid possible War Crimes prosecution of Adminstration Officials.

In recent weeks, Gonzales and Bush's attempts to end-run Geneva via Presidential decree have run upon rocky ground before the Supreme Court who flatly rejected the notion that Geneva did not apply. And if Geneva applies, so does the War Crimes Act of 1996. 18 USC § 2441

The debate has prompted former Chairman of the Joint Chiefs and Secretary of State Powell to submit a stern letter to the president, saying that President's position on this throws our moral basis for the war on terror "into doubt."

But why does Bush continue to insist on these methods when many of the professionals in the field, including the FBI argue that they simply don't work.

The FBI forbids its agents from participating in any way in interrogation of detainees because of agents’ experience of what they considered torture. One agent in an email to bureau officials on August 2, 2004 described what he witnessed at the Guantanamo detainee prison camp: “On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves, and had been left there for 18 to 24 hours or more.” In one case, he said, “The detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his own hair out throughout the night.”

Bush claims are these methods that are “not torture” are necessary because they produce valuable intelligence on terrorism activities. Yet an FBI agent involved in the interrogations wrote on December 5, 2003, “These tactics have produced no intelligence of a threat neutralization nature to date and . . .”

The U.S. Army agrees emphatically. On September 6, the same day that Bush unveiled his new plan for torture and kangaroo courts, Lieutenant General John F. Kimmons, the Army’s Deputy Chief of Intelligence, in his presentation of the Army’s new field manual on interrogation that specifically encoded the Geneva Conventions rules against torture, said directly: “No good intelligence comes from abusive interrogation practices.”

Blumenthal sees this insistence on "Hard Charging" techniques as part of a larger reshaping of the Presidency by Bush and his followers. A radical resurgence of the Imperial Presidency of Richard Nixon and even more. ("If the President does it, it's legal...") The use of warrantless wiretaps against American citizens, unlimited detention without judicial oversight, habeous corpus or due process, torture - even murder have all occured under this Presidents watch, and worse - at his direction.

16 Months Ago Amnesty International called for the investigation, and if neccesary arrest and prosecution of George W. Bush, Donald Rumsfeld and Alberto Gonzales for War Crimes. It's clear that with the paper trail that has been produced by the ACLU, any serious investigation of these issues would lead to grave consequences under 2441, including up to 5 years imprisonment and possible execution, for those who paved the way for these events to have occured. Even members of Congress if they approve the weakening and redefining of Geneva that the President has proposed.

Vyan

Abu Says - When in doubt, make War Crimes Legal!

That's the new mantra coming from Alberto Gonzales and some Republicans on the hill as a result of the Hamdan (pdf) Decision which clearly laid reestablished the groundwork for soldiers, Pentagon Officials and even the President to be held accountable for violations of the War Crimes Act of 1996.

In 2002, fearing that the President policies might run afoul of this law, as White House Counsel Alberto Gonzales recommended that "Enemy Combatants" be exempted from Geneva Protections.

Now that this view has been obliterated by the SCOTUS - Abu has taken a different tact. Create an immunity from War Crime prosecution for those fighting the "War on Terror".

<> Which of course would cover - um - everyone in the Government since we don't have any other types of impending Wars right now.

Over a year ago Amnesty International called for the investigation, arrest and prosecution of George W. Bush and many of his senior staff including Gonzales and Rumsfeld for War Crimes Violations.

It's clear from Gonzales actions that the threat posed by Amnesty's allegations aren't something he considered to be simply "idle". And it's also clear from the 26 Detainee deaths-in-custody that have already been determined to be homocide due to cruel treatment - that this issue is not going away anytime soon.

From the Washington Post.

An obscure law approved by a Republican-controlled Congress a decade ago has made the Bush administration nervous that officials and troops involved in handling detainee matters might be accused of committing war crimes, and prosecuted at some point in U.S. courts.

Senior officials have responded by drafting legislation that would grant U.S. personnel involved in the terrorism fight new protections against prosecution for past violations of the War Crimes Act of 1996. That law criminalizes violations of the Geneva Conventions governing conduct in war and threatens the death penalty if U.S.-held detainees die in custody from abusive treatment.

In light of a recent Supreme Court ruling that the international Conventions apply to the treatment of detainees in the terrorism fight, Attorney General Alberto R. Gonzales has spoken privately with Republican lawmakers about the need for such "protections," according to someone who heard his remarks last week.

So Gonzales' previous attempts to end-run around Geneva have been thwarted by the Scotus and the War Crimes Act 18 USC § 2441 which documents War Crimes:

(1) 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;

(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or

(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

It seems that this Law really worries Gonzales, and just why would that be? More from Wapo:

Gonzales told the lawmakers that a shield is needed for actions taken by U.S. personnel under a 2002 presidential order, which the Supreme Court declared illegal, and under Justice Department legal opinions that have been withdrawn under fire [such as the Bybee memos], the source said. A spokeswoman for Gonzales, Tasia Scolinos, declined to comment on Gonzales's remarks.

The Justice Department's top legal adviser, Steven G. Bradbury, separately testified two weeks ago that Congress must give new "definition and certainty" to captors' risk of prosecution for coercive interrogations that fall short of outright torture.

But why are we back to this yet again? Didn't the Detainee Treatment Act of 2005 essentially ban all cruel and unusual treatment of Detainees? Then again, maybe it didn't since the Graham-Levin Amendment to that law essential created a barrier between detainees and their ability to fight against poor treatment via the courts - a barrier that Hamdan ripped down with a back-hoe.

No matter what - these guys want the ability to torture people. That's the bottom line. Even when using such techniques have only brought us bad information, such as the claims of links between Saddam and Al Qaeda that we received from Ibn Sheik al-Libi at Gitmo which turned out to be completely false.

They just keep trying snake around the law. Geneva in the way? -- deny it applies. Supreme Court says it does? Rewrite the law -- even if you still have those pesky ex-post facto issues to iron out. But they still have one hurdle they can't easily jump and that is the 8th Amendment to the Constitution:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Constitutionality of a Law that is specifically designed to allow for violations of the 8th Amendment is a non-starter. It's crazy. Looney-tunes. Insane in the membrane.

But here we are, with serious discussion of this very thing happening on Capitol Hill. How do we get back to sanity again?

Vyan

George W. Bush: War Criminal

In their 5-3 decision yesterday in the Hamdan v Rumsfeld (pdf) case, the Supreme Court may have just established a determination that Amnesty International has been long looking for and Albert Gonzales has worked hard to avoid.

They made it official : George W. Bush is a War Criminal.

Oh, he may at this time be unindicted, untried and unconvicted - but make no mistake - the court has made it clear that he is a criminal.

In the Majority Opinion Justice Stevens stated:

Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan ’s commission trial are illegal.

The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949.

In his concurring opinion Justice Kennedy brought it home:

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.

The core of the decision, as written by Stevens is here:

Hamdan is entitled to the full protections of the Third Geneva Convention until ad-
judged,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.

The Court did not find that Hamdan or other detainees would have to be tried in civilian court, only that the Special Secret Tribunals that have been setup by President Bush are not authorized under current U.S. Law (the UCMJ) and also violate our treaty as a member of the Geneva Conventions.

It is quite possible that Hamdan would have to be tried in a normal "Courts Marshal" styled Tribunal, or that Congress could amend the UCMJ to allow for the presentation of secret evidence with a new class of tribunals and carve out part of the UCMJ so as to be severed from Geneva, and thus make the current Tribunal structure established for Al Qaeda and Taliban members "legal" -- but that isn't the only hurdle to be crossed.

Much has been made of the arguement that Geneva is an international law, and supposedly unenforceable with the U.S. But that isn't strictly true as Article VI of the U.S. Constitution makes clear.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Under this article it could be argued that International Treaties made by the United States are in fact - U.S. Law. With or without this interpretation however, it is now clear that the President has indeed violated U.S. Law, specifically the 1996 War Crimes Act under 18 USC § 2441, which exists in supplement to the Geneva Conventions and states:

The law applies to "U.S. officials" and that punishments for violators "include the death penalty,"

The article defines "War Crimes" :

(1) 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;

(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or

(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

Early on the War on Terror(tm) Alberto Gonzales had noted this law and as White House Council had advised President Bush to refuse to recognize that "Enemy Combatants" had standing under the Geneva Conventions, not simply because they weren't members or agents of a signatory state - but simply because doing so would put the President at risk for violations of this law. As Reported by Michael Isikoff for Newsweek.

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.

It is now clear that this artful dodge has failed, and the Supreme Court has fully established that persons such as Hamdan, who may not officially be "Prisoners of War" until such a determination is made via judicial proceeding, are indeed covered by the Conventions, and that their treatment is protected under the War Crimes Act.

Furthermore, these memos by Gonzales indicate premeditation of the intent to violate 18 USC § 2441, several months before his request for the Bybee Torture Memos, which the ACLU in their own suit against Donald Rumsfeld contends was the first link in a chain which has led systematic abuse of detainees at Gitmo, Abu Ghraib, Bagram AFB in Afghanistan, Extra-odinary Rendition, Secret Prisons and the notorious Task Force 6-26.

In all these areas - BUSH. HAS. VIOLATED. THE. LAW.

If Congress intends to immunize Bush by changing the UCMJ, they will also have to change the War Crimes Act and possibly even de-ratify Geneva in order to make the Presidents current illegal conduct - legal.

But in addition to the War Crimes issue, there is also the NSA Domestic Spying issue - which the President and Justice Dept have claimed were given life by the Authorization to use Military Force against Al Qaeda and the Taliban in Afghanistan. But SCOTUS would appear to have thrown some severely cold water on that idea.

Neither the AUMF nor the DTA can be read to provide specific,overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President ’s war powers, see Hamdi v.Rumsfeld ,542 U.S.507,and that those powers include authority to convene military commissions in appropriate circum stances,see,e.g.,id.,at 518, there is nothing in the AUMF ’ s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ.

Without having specific and detailed authorization by Congress to try Hamdan outside of the standard proceedures of UCMJ and/or without an appropriate update to the UCMJ, the court has found the trial to be illegal. It only follows that they would also find the Presidents claim of authority to wiretap International calls without judicial review to be similarly illegal, particular since the 2002 Hamdi decision specifically required a role for the courts. In Hamdi...

JUSTICE O ’CONNOR,joined by THE CHIEF JUSTICE,JUSTICE KENNEDY,and JUSTICE BREYER,concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

The "neutral decisionmaker" would be a Judge (or judicial panel). The kind of judges that can also issue warrants, like the FISA Court.

The real issue and question is - will Bush even care? At this point in time, he has deliberately broken the FISA Statutes as well as the War Crimes Statute, so what does he have to lose by essentially ignoring the court? Is this Congress going to hold him accountable? Even though the NSA program has been openly revealed it continues on without any changes yet made by Congress to the existing law. Senator Russ Feingold suggests the rather mild remedy of a censure and it dies on the vine, and Bush hasn't even shifted his stride as he continues to trample on Civil Rights and ignore both the law and the courts. Senator (and part-time remote viewer) Bill Frist has already begun work on legislation to make the Secret Tribunals legal, so why should Bush do anything to bother abiding by the law, the Constitution or the Geneva Conventions?

Perhaps because this decision has opened the President up to a veritable avalanche of court challenges for his policy. In my original presumption and post before reviewing the detail of the case, I had worried that future cases of this type would not be able to be filed by Gitmo Detainees because of the Levin-Graham Amendment to the Anti-Torture Bill, but it appears that at the very top of their decision the Court Considered this question, and rejected it. This means that the door is wide open for future detainee suits. And unless Justice Stevens dies or retires, Bush is unlikely to win any of these challenges in the future.

At a certain point the realization that this President is a criminal will eventually begin to dawn on the American people - and they will have to force Congress's hand to take action (either through appointment of a Independant Council/Special Prosecutor or Impeachment Proceedings).

It may not happen in time for the end of his Presidency, but it's only a matter of time - hopefully, it won't be too late.

Update: Glenn Greenwald also has some excellent analysis of this decision from yesterday and today has an analysis I concur with; The President is quite likely to completely ignore the Court on this issue:

When asked about the Court's ruling yesterday, the President's answer seemed to suggest (albeit ambiguously) exactly that view:

At any rate, we will seriously look at the findings, obviously. And one thing I'm not going to do, though, is I'm not going to jeopardize the safety of the American people. People have got to understand that.

Isn't the President saying here that no matter what the Court says, he is "not going to . . . jeopardize the safety of the American people"? Thus, if compliance with the Supreme Court's ruling would -- in the President's view -- impair his ability to defend the nation, isn't it quite likely that the President would simply refuse to comply with the ruling on the ground that the Court has no authority to impair his functions as Commander-in-Chief? And if he asserted that power, is there any doubt that his followers would trip over themselves with praise, wallowing in bravado fantasies of Andrew Jackson's heroic challenge to the Court's authority?

Oh, I'm sure they will - in fact the witchhunt for the heads of those crazed out-of-control Supreme Court Justices is already gearing up for full steam. It should be an interesting ride.

Vyan

Why Iraqi Amnesty may be inevitable

Crossposted on Dailykos.

This week the Iraqi government has had an on again, off again, on again flirtation with granting Amnesty to (hopefully soon to be) Insurgents as part of a plan for U.S. Forces to leave.

It's an idea that has given polticians on both sides of the aisle conniption fits.

How could they...?

What a slap in the face to our troops...?

Even Russ Feingold has suggested that the idea of granting Amnesty to those who've killed Iraqis is "Ok", but those who killed Americans, "No, Way"?

Are you kidding me?

This Dkos diary here attempts to parrellel the suggestion of granting Amnesty to iraqi Insurgents is wrong because it doesn't match the method in which President Lincoln granted Amnesty and required a loyalty oath of the defeated Southern States following our own Civil War. Lincoln at Gettysburg:

It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.

My problem with this is that:

It's not our Civil War, and it's not our Country. We are an unwanted third party in the conflict between the factions within the Iraqi nation - and lastly, it's not our decision. If Iraq is to form it's own government, it has to make it's own decision, even decision we might find aborhent like granting amnesty to people who fought and killed the people who invaded their country on false pretenses.

If we want the Iraqis to forgive and grant us Amnestry for the WMD and Nuclear threat lies, we're going to have to give up something. What exactly would be as valuable?

The end of all wars generally means the end of hostilities for all parties, including the end of any vendettas for any persons killed or attacked during the active portion of the war. Yes, there may be the surrender of persons for specfic War Crimes in preparation for trial, but if we wish to have the Iraqi Government support the idea of ex-insurgents being turned over in this manner -- then they would have the arguement that Amnesty International long ago stated that the following Americans should be investigated, arrested and tried for War Crimes as well.

Donald Rumsfeld: For approving a Sept 2002 Memorandum that permitted unlawful torture techniques such as stress positions, prolonged isolation, stripping and the use of dogs at Guantanemo Bay.

William Haynes - Department of Defense General Counsel : Who wrote that Memo.

Douglas Feith : Who was listed in the Sept 2002 Memo as concurring with it's conclusions.

Maj General Geoffrey Miller - Commander of Joint Task Force at Guantanemo : Whose subordinates used some of those same torture techniques (as approved by the Haynes Memo), and was then sent to Iraq where he recommended that prison guards - "soften up" detainees for interrogation.

George Tenet - former CIA Director : Whose organization kept "Ghost Detainees" off registration logs and hid them from members of the Red Cross, and whose operatives reportedly used such techniques as water-boarding, suffocation, stress positions and incommunicado detention.

Roberto Gonzales - Attorney General and former White House Council: Who called the Geneva Conventions "quaint and obsolete" in a Jan 2002 memo, and requested the "Bybee Memo" which fueled the atrocities at Abu Ghraib.

Lt General Ricardo Sanchez - former commander of U.S. Forces in Iraq and his deputee: Who failed to ensure proper oversight at Abu Ghraib.

Capt. Carolyn Wood : Who oversaw interrogation operations at Bagram AFB in Afghanistan, which permitted the use of dogs, sensory deprovation and stress positions.

George W. Bush - President : Whose Administration has repeatedly justified it's interrogation policies as legitimate, under the Presidents powers as Commander-in-Chief, and President Bush also signed a Feb 2002 Memo stating that the Geneva Conventions did not apply to al-Qaeda or Taliban detainees, and that their humane treatment should be contigent upon "Military Neccesity" - which clearly set the stage for the tragic use of torture by U.S. forces.

There is also the fact that Attorney General Alberto Gonzalez specifically skirted the U.S. own War Crimes Laws by arguing that "Enemy Combatants" shouldn't be granted status under the Geneva Conventions - even though Geneva indicates that they should be included. From Newsweek.

[Gonzales then WH Council] warned more than two years ago that U.S. officials could be prosecuted for "war crimes" as a result of new and unorthodox measures used by the Bush administration in the war on terrorism, according to an internal White House memo and interviews with participants in the debate over the issue. The concern about possible future prosecution for war crimes--and that it might even apply to Bush adminstration officials themselves-- is contained in a crucial portion of an internal January 25, 2002, memo by White House counsel Alberto Gonzales obtained by NEWSWEEK. It urges President George Bush declare the war in Afghanistan, including the detention of Taliban and Al Qaeda fighters, exempt from the provisions of the Geneva Convention.

In the memo, the White House lawyer focused on a little known 1996 law passed by Congress, known as the War Crimes Act, that banned any Americans from committing war crimes--defined in part as "grave breaches" of the Geneva Conventions. Noting that the law applies to "U.S. officials" and that punishments for violators "include the death penalty," Gonzales told Bush that "it was difficult to predict with confidence" how Justice Department prosecutors might apply the law in the future.

Rather than use the argument that has been since put forward by the likes of Senator Linday Graham, that granting Geneva protections to terrorist would "weaken Geneva" - Gonzales argued for a C.Y.A. approach to War Crimes.

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.

Last week Democrats put forward two seperate non-binding Amendments for a timetable to drawdown our troops from Iraq. The Iraqi government has asked us to leave. Our own military commanders including General Casey have begun to draw up plans for our departure -- it's going to happen, one way or another. The only real question is whether the violence and strife which has been increasing while we have been in Iraq will continue or whether the removal of our forces will itself end the primary point of contention between these forces?

Naturally many Americans, particular after the Brutal murders of two U.S. Soldiers are not pleased by this idea. But how can we ignore the fact that this War was persued under false pretenses? That nothing that was argued as the justification for the War has panned out, even the arguement that we are their to "spread freedom" is undercut by the War's biggest cheerleaders when they simultaneously argue that "We Should Run Iraq the same way that Saddam did".

If there is no Amnesty for insurgents, shouldn't the Iraqi Government be able to put the Haditha Marines on trial? Do we really want that?

Let me restate: It's not our Country, and It's not our Civil War. Time has come for Iraqi soldiers and the Iraqi Government to grow up, stand up and start running their own show.

Even if they make decisions we don't neccesarily like. They aren't a puppet state of the U.S.

Or are they?

Vyan

Running Iraq just like Saddam

In recent days Bill O'Reilly has been again named "Worse Person in the World" by his best gadfly/nemesis Keith Olberman for suggesting that America should "run Iraq the way that Saddam did" in order to bring order to the chaos in the region.

On the same night as Olbermann's rebuke O'Lielly continued his diatribe going on to argue that American is losing the war because of the ACLU, Amnesty International, The International Red Cross, President Jimmy Carter and Air America Radio who have all heavily critized the U.S. for violating Geneva Conventions and committing possible War Crimes.

Although it's easy to blow-off these comments by O'Reilly, I think his statements betray a mentality that has been at work all along - and ultimately knocks down the final piece of the "Noble Mission" canard.

We didn't go to Iraq to suppress WMD's - Saddam didn't have them and we knew it - and we didn't go to spread "democracy", not if we have to implement totalitarianism in order to do it.

We went there to project American Power, in an infantile display of dicks-man-ship - just as O'Reilly and his "Get Tough" rhetoric reveals.

Here's how O'Reilly laid it out.

O'REILLY: "Talking Points" believes the Bush administration has to stop being defensive about waging war. At this point, the new Iraqi government should declare martial law in areas controlled by insurgents. That means anyone can be arrested and shoot-on-sight curfews.

Saddam was able to control Iraq, as you know, and defeat insurgencies against him. The new Iraqi government can do the same, but it needs to get much tougher.

Let's examine for a moment how Saddam was able to defeat those insurgencies shall we? Following the first Gulf War, with his own forces essentially decimated by the air-barrage of U.S. B-52s, Saddam surrendered to U.S. led coalition forces - there was both a Shi'ite rebellion in southern Iraq and a Kurdish rebellion in the North against Saddam. His response to these insurrections was swift and brutal.

He used nerve toxin on them. Y'know - Weapons of Mass Destruction.

O'Reilly is far from alone is his view that America needs to take off the "Kid Gloves". Micheal Scheuer, former head of the CIA's Bin Laden desk has long argued for a Total War strategy against Islamic extremism.

I've found Scheuer's writing most useful for it's detailed insights into Bin Laden and Al Qaeda's over-arching strategy of prompting an American financial collapse - like that with brought the Soviet Union to an end following years of endless, fruitless battle in Afghanistan - rather than a strict military defeat. He also suggests that our best choices are to change our policies toward the Muslim world and attempt to reach-out and prove we aren't the enemy of Islam that they seem to think we are.

This makes sense, but Scheuer is a pragmatist and he realizes that this type of radical shift in strategy is highly unlikely, therefore he points out what just might be the inevitable. In his book "Imperial Hubris" he makes the following arguement.

Killing in large numbers is not enough to defeat our Muslim foes. With killing must come a Sherman-like razing of infrastructure. Roads and irrigation systems; bridges, power plants, and crops in the field, fertilizer plants and grain mills-- all these and more will need to be destroyed to deny the enemy it's support base. Land mines, moreover, will be massively reintroduced to seal borders and mountain passes too long, high, or numerous to close with U.S. soldiers. As noted such ations will yield large civilian casualties, displaced populations, and refugee flows. Again, this sort of bloody mindednes is neither admirable nor desirable, but it will remain America's only option so long as she stands by her failed policies toward the Muslim world.

Scheuer supports the doctrine of Total War and essentially idolizes Sherman, who burned an enourmous swath through the south in order to break the back of the Rebellion during our own Civil War. Tactics not unlike those used by Saddam Hussein. He argues that our efforts in Afghanistan have been "dainty" and largely ineffective -- the bulk of Taliban and Al Qaeda forces were able to easily avoid being captured or killed and have since spread worldwide, metastesizing (sp) into a Cancer that now affects Chechnya, Malaysia and has prompted the bombings of Schools, Planes (Russia), Trains (Madrid) and Subways (London).

He's not exactly a Bush fan, and is fervent against the Iraq war. But neither was a he a fan of Clinton. His biggest error in my opinion is his failure to recognize our success in Bosnia by using an overwhelmingly powerful force comprised of equal parts American, European and Russian forces against the massive confusion, chaos, ethnic cleansing of the Balkans. As well as our success against the attempted disruption and insurgency by Al Qaeda (which as documented by Richard Clarke in his book "Against All Enemies" was anticipated and thwarted).

O'Reilly and Scheuer are far from alone in their way of thinking.

O'REILLY: All right, Colonel Hunt, I think we're at a tipping point here in the Iraq war. I think if America does not stop being on the defensive, and I mean militarily and in the war of public opinion, that we gotta get out of there. We either have to fight the war and win the war, or get the hell out.

HUNT: Yeah, I totally agree. We take the gloves off. Military leaders, take the gloves off. The soldiers know what they do. Get out of the way. Politicians, get out of the way.

But of course, like all True-Blue and RED Conservatives, O'Reilly can't help but find Liberals to Blame for our sad state of affairs in Iraq.

The Bush administration also needs to begin challenging those who are helping the enemy. The ACLU, for example, opposes just about every anti-terror strategy. This organization should be exposed.

The BBC also helps the enemy by consistently slanting the Iraq war coverage and portraying the coalition as villains. The vile Air America Radio network does the same thing.

O'REILLY: All right, do you believe it's a tipping point, general?

McINERNEY: Yes, I do, Bill. And it's a tipping point in the will of the American people. We can't lose over there militarily. It's the will of the American people. And I call them "ACE" Democrats or "ACE" liberals -- aid and comforting the enemy.

O'Leilly also made the arguement that the ACLU and President Carter have hurt America by proclaiming that we torture detainees, even though America official policy is against torture. Well, sure the official policy says one thing - but apparently the Army Field Manual now says something completely different.

The problem with all of this is the very strong probability that America took the "gloves" off a long time ago. We already run Iraq just like Saddam did.

The 2004 attack on Fallujah which preceeded the first Iraqi election follows almost exactly the script that both Scheuer and O'reilly describe -- establish Marshall Law, completely disrupt the infrastrucure and oh yeah - use Chemical Weapons. (In this case, White Phosphorous, which literally melts skin).

The recent tragedy in Haditha also seems to support the contention that U.S. Forces are far from "holding back" in Iraq.

This entire line of reasoning ignores one crucial fact. We Don't Have A Large Enough Troop Footprint To Implement this kind of Strategey.

We don't have the manpower to implement Marshall Law and a "shoot on sight" curfew in Ramadi and also keep the insurgents from gaining a foothold elsewhere. The sad lessons of Fallajah and Afghanistan are that you have to cover every possible escape before you try and spring a trap. Besides that, we already have destroyed their infrastructure - and we haven't fixed it since.

As Sheuer points out the only reason America has to consider implementing overwhelming brutality and excise the Geneva Conventions fron the Army Field Manual - is because we've been dealing from a position of Bad Faith during this entire conflict. All of our justifications have been wrong. Saddam wasn't a threat to us, he didn't have WMD's, he didn't have Nukes, he wasn't tied to Al Qaeda - and he'd destroyed his WMD's in 1991 (as revealed by the Dulfer Report).

While a small number of old, abandoned chemical munitions have been discovered, ISG judges that Iraq unilaterally destroyed its undeclared chemical weapons stockpile in 1991. There are no credible Indications that Baghdad resumed production of chemical munitions thereafter, a policy ISG attributes to Baghdad's desire to see sanctions lifted, or rendered ineffectual, or its fear of force against it should WMD be discovered.

This information was provided to the Bush Administration long before the invasion by Iraqi Foreign Minister Naji Sabri, and confirmed by Saddam's pre-war declaration.

If our sole reasons for getting rid of Saddam was to end the "Rape Rooms" and then our people turn around and re-use the exact same facilities for the exact same purpose - what have we managed to accomplish other than changing the guards on the doorway to hell?

Our Administration Lied about the reasons for the War from Day One.

They used Bad Faith. The only true use of military force is bring someone to the negotiating table who is otherwise unwilling, but if they simply can't trust anything you say -- we should they bother showing up no matter how much force you use? Bad Faith poisons all the waters.

I've often begun to wonder, why did Saddam hide the fact that he had destroyed his WMD stockpile? Could it have been the strong likelyhood of a renewed Kurdish and Shi'ite rebellion if they knew his primary weapon against them was disabled? Was he just buying time to reconstitute his decimated Army? And if we had Let the Inspectors Finish Their Job and reveal that Saddam was disarmed, would his worst fears have come true and the violent insurgency that is now killing our soldiers would instead have gone and captured Saddam instead? (Especially since there some indications that Kurdish forces were the ones to capture Saddam, not U.S.)

The New York Times, Amnesty International, President Carter, the ACLU and Air America Radio didn't create this situation. Bush and his neo-con supporters did.

Being willing to Use the Big Stick doesn't end the story, you have to know how to clean up the mess after you use it.

We have to change direction as both John Murtha, John Kerry and Russ Feingold have pointed out - but it's fairly unlikely that this will occuring during the Bush Administration and we can expect nothing more than further Abu Ghraib's and Haditha's for the forseeable future.

Vyan

NSA Tracking Tens of Millions of Domestic Calls

USA Today has reported that the NSA surveillance program, rather than being restricted to "international calls" by suspected terrorist agents into and out of the U.S., has instead been contracting with AT&T, BellSouth and Verizon to create a massive database of domestic calls.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren't suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

QUESTIONS AND ANSWERS: The NSA record collection program

"It's the largest database ever assembled in the world," said one person, who, like the others who agreed to talk about the NSA's activities, declined to be identified by name or affiliation. The agency's goal is "to create a database of every call ever made" within the nation's borders, this person added.

For the customers of these companies, it means that the government has detailed records of calls they made — across town or across the country — to family members, co-workers, business contacts and others.

The three telecommunications companies are working under contract with the NSA, which launched the program in 2001 shortly after the Sept. 11 terrorist attacks, the sources said. The program is aimed at identifying and tracking suspected terrorists, they said.

Coincidentally, President Bush's fresh new choice to replace Porter Goss as the head of the CIA, General Michael Hayden - the man who doesn't seem to know what the 4th Amendment says - appears to have already admitted to this program in an interview from 2002.

I have met personally with prominent corporate executive officers. (One senior executive confided that the data management needs we outlined to him were larger than any he had previously seen). [...] And last week we cemented a deal with another corporate giant to jointly develop a system to mine data that helps us learn about our targets.

This program is clearly illegal and has been carried out without a court order in clear violation of the 4th amendments prohibition of "reasonable search and seizure" - how could any of this information ever be used in court under the fruits of the poison tree rule?

Moments ago, the President in response to the USA Today report stated.

Today there are new claims about other ways we are tracking down al Qaeda to prevent attacks on America. I want to make some important points about what the government is doing and what the government is not doing.

First, our international activities strictly target al Qaeda and their known affiliates. Al Qaeda is our enemy, and we want to know their plans. Second, the government does not listen to domestic phone calls without court approval. Third, the intelligence activities I authorized are lawful and have been briefed to appropriate members of Congress, both Republican and Democrat. Fourth, the privacy of ordinary Americans is fiercely protected in all our activities.

We're not mining or trolling through the personal lives of millions of innocent Americans. Our efforts are focused on links to al Qaeda and their known affiliates. So far we've been very successful in preventing another attack on our soil.

But is the process of tracking phone calls genuinely legal?

Under Section 222 of the Communications Act, first passed in 1934, telephone companies are prohibited from giving out information regarding their customers' calling habits: whom a person calls, how often and what routes those calls take to reach their final destination. Inbound calls, as well as wireless calls, also are covered....

In the case of the NSA's international call-tracking program, Bush signed an executive order allowing the NSA to engage in eavesdropping without a warrant. The president and his representatives have since argued that an executive order was sufficient for the agency to proceed. Some civil liberties groups, including the American Civil Liberties Union, disagree....

In December, The New York Times revealed that Bush had authorized the NSA to wiretap, without warrants, international phone calls and e-mails that travel to or from the USA. The following month, the Electronic Frontier Foundation, a civil liberties group, filed a class-action lawsuit against AT&T. The lawsuit accuses the company of helping the NSA spy on U.S. phone customers.

Last month, U.S. Attorney General Alberto Gonzales alluded to that possibility. Appearing at a House Judiciary Committee hearing, Gonzales was asked whether he thought the White House has the legal authority to monitor domestic traffic without a warrant. Gonzales' reply: "I wouldn't rule it out." His comment marked the first time a Bush appointee publicly asserted that the White House might have that authority.

Further according to one DKos Poster who called to complain to his cell phone provider Cingular Wireless, which is a subsidiary of AT&T and Bellsouth, was directed to the following URL. http://www.cingular.com/...

The following are excerpts of their privacy policy:

We will not sell or disclose your personal information to unaffiliated third parties without your consent except as otherwise provided in this Policy. We may use information about who you are, where and when you browse on the Web, where your wireless device is located, and how you use our network to provide you better service and enrich your user experience when you sign up or use any of our products or services.

[snip...]

Under federal law, you have a right, and we have a duty, to protect the confidentiality of information about your telephone usage, the services you buy from us, who you call, and the location of your device on our network when you make a voice call. This information is sometimes referred to as "Customer Proprietary Network Information," or "CPNI." We share CPNI and other personal information about you with affiliates of AT&T and BellSouth Corporation (the parent companies of Cingular) that provide telecommunications services to which you also subscribe. Before sharing CPNI in any other way, we will first notify you of your rights under the law, describe how we intend to use the CPNI, and give you an opportunity to opt out of such usage (or, when required by law, to opt in

Some more background on CPNI.

n the United States, CPNI (Customer Proprietary Network Information) is information that telecommunications services such as local, long distance, and wireless telephone companies acquire about their subscribers. It includes not only what services they use but their amount and type of usage. The Telecommunications Act of 1996 together with clarifications from the Federal Communications Commission (FCC) generally prohibits the use of that information without customer permission, even for the purpose of marketing the customers other services. In the case of customers who switch to other service providers, the original service provider is prohibited from using the information to try to get the customer back. CPNI includes such information as optional services subscribed to, current charges, directory assistance charges, usage data, and calling patterns.

The CPNI rules do not prohibit the gathering and publishing of aggregate customer information nor the use of customer information for the purpose of creating directories.

Under the Telecom Act of 1996 Service Providers must protect customer information:

(a) In general

Every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, other telecommunication carriers, equipment manufacturers, and customers, including telecommunication carriers reselling telecommunications services provided by a telecommunications carrier.

(b) Confidentiality of carrier information

A telecommunications carrier that receives or obtains proprietary information from another carrier for purposes of providing any telecommunications service shall use such information only for such purpose, and shall not use such information for its own marketing efforts.

(c) Confidentiality of customer proprietary network information
(1) Privacy requirements for telecommunications carriers
Except as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to individually identifiable customer proprietary network information in its provision of (A) the telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories.

However, there are some exceptions...

(d) Exceptions
Nothing in this section prohibits a telecommunications carrier from using, disclosing, or permitting access to customer proprietary network information obtained from its customers, either directly or indirectly through its agents—

(1) to initiate, render, bill, and collect for telecommunications services;

(2) to protect the rights or property of the carrier, or to protect users of those services and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, such services;

(3) to provide any inbound telemarketing, referral, or administrative services to the customer for the duration of the call, if such call was initiated by the customer and the customer approves of the use of such information to provide such service; and

(4) to provide call location information concerning the user of a commercial mobile service (as such term is defined in section 332 (d) of this title)—

(A) to a public safety answering point, emergency medical service provider or emergency dispatch provider, public safety, fire service, or law enforcement official, or hospital emergency or trauma care facility, in order to respond to the user’s call for emergency services;

(B) to inform the user’s legal guardian or members of the user’s immediate family of the user’s location in an emergency situation that involves the risk of death or serious physical harm; or

(C) to providers of information or database management services solely for purposes of assisting in the delivery of emergency services in response to an emergency.

Also this confidentially requirement is not absolute and contains a loophole for "aggregate" information.

(c) Confidentiality of customer proprietary network information

(1) Privacy requirements for telecommunications carriers
Except as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to individually identifiable customer proprietary network information in its provision of (A) the telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories.

(2) Disclosure on request by customers
A telecommunications carrier shall disclose customer proprietary network information, upon affirmative written request by the customer, to any person designated by the customer.

(3) Aggregate customer information
A telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service may use, disclose, or permit access to aggregate customer information other than for the purposes described in paragraph (1). A local exchange carrier may use, disclose, or permit access to aggregate customer information other than for purposes described in paragraph (1) only if it provides such aggregate information to other carriers or persons on reasonable and nondiscriminatory terms and conditions upon reasonable request therefor.

My own suspicion is that the Bush Administration is going to attempt to use the arguement that this program qualifies under the "emergency" exception and is only designed to gather "Aggregate" data - but whether that dodge of the Telecom Acts specific privacy requirements is suffucient remains to be seen, and is frankly rather doubtful as Glenn Greenwald points out today the kind of information described by the USA Today article seems to include that recorded by a Pen Register device (only on a much larger scale) and is already covered under FISA.

Additionally georgia10 has pointed out that disclosing this kind of electronically stored information without a court order, even without FISA, is illegal as a cybercrime under 18 U.S.C. section 2702,

Meanwhile, the legality of the already revealed domestic surveillance program remains in great doubt - the NSA has refused to provide appropriate security clearances the Department of Justice - which would allow them to investigate and verify the legallity of how things are being conducted. From the AP:

Security issue kills domestic spying inquiry
NSA won't grant Justice Department lawyers required security clearance

WASHINGTON - The government has abruptly ended an inquiry into the warrantless eavesdropping program because the National Security Agency refused to grant Justice Department lawyers the necessary security clearance to probe the matter.

The inquiry headed by the Justice Department's Office of Professional Responsibility, or OPR, sent a fax to Rep. Maurice Hinchey, D-N.Y., on Wednesday saying they were closing their inquiry because without clearance their lawyers cannot examine Justice lawyers' role in the program.

"We have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program," OPR counsel H. Marshall Jarrett wrote to Hinchey. Hinchey's office shared the letter with The Associated Press.

... "Without these clearances, we cannot investigate this matter and therefore have closed our investigation," wrote Jarrett.

So here we have a situation where the President promises that his actions are legal, even though the FISA Law specifically states that it is the sole and exclusive method in with surveillance of this type will be conducted, we also the revelation that the government has conducted warrantless physical searches. Then, when the Congress begins to grumble about investigating the NSA program the White House practically twists their arms off in order to shut that investigation down, and when the governments own lawyers in the DOJ want to investigate - they get blocked.

Despite the Presidents claims, we already know that these activities are not limited to suspected members of al Qaeda and their associates. So just what is going on here? Have we started a War thousands of miles a way in order to "protect freedom" only to have it gradually stripped away at home? No more Habeas Corpus? Illegal search and seizure, kidnapping, secret detention and torture, and possibly even assasination are now viable options?

I strongly suspect, that's exactly what is going on.

Vyan