How Conservatives Ignore Bush 85% Failure Record on Military Tribunals and Torture

We've heard a whole lot of blather over the last few weeks about how the Fruit-of-the-Boom Attacker should've been dragged by Air Marshals off a U.S. Airplane in Detriot straight to Gitmo, Do not pass "Go" - do not collect your Miranda.

We've been told that we should do it the way Bush did it.

But the facts are that the Bush Administration had an 88% success rate prosecuting terrorists in civilian court while in military tribunals the FAILURE rate so far has been ... 85%.

Yeah, that's some FAIL we need more of.

Via the U.K. Guardian.

The Bush administration -- in which Liz Cheney's papa held a fairly high position, you might recall -- prosecuted, after 9-11, 828 people on terrorism charges in civilian courts. At the time of publication of this excellent report from the Center on Law and Security, NYU School of Law last year, trials were still pending against 235 of those folks. That leaves 593 resolved indictments, of which 523 were convicted of some crime, for a conviction rate of 88%.

With regard to military tribunals, the Bush administration inaugurated 20 such cases. So far just three convictions have been won. The highest-profile is the conviction of Salim Hamdan, Osama bin Laden's driver. The Hamdan legal saga, rehearsed here, doesn't exactly suggest that military tribunals provide swifter and surer and tougher justice. In the end, he was convicted all right, but sentenced -- not by a bunch of New York City Democrats, but by a military jury! -- to five and half years.

Then, the tribunal judge, a US Navy captain, gave Hamdan credit for time served, which was five years. So he served six months after conviction. Today he's back in -- guess where? -- Yemen.

Typical Conservative Opposite World Logic - rather than do what works, reaches justice and protects the nation 88% of time, they'd rather do what hasn't worked in 85% of the attempted cases, and even when it has worked the suspect was ultimately released for time served after only SIX MONTHS.

But let's not dance around the sad ugly truth here - the real reason that Conservatives want to have the Military handle these cases is because they believe that Only The Military can "Sweat those Terrorist Secrets Out of Them" - like Jack Bauer in a badly thought out scene for "24".

Just listen to Giu-Liar-ani talk about how "We should still be interrogating" abdulMuttalab with the military even though from all indications he's already talking to us.

Guiliiani: They only talked to him for 30 Hours? My question is why would you ever stop it? In the Military they wouldn't have a time limit to talk to him.

Actually the fact is they don't have to stop it. Even with Miranda in place or a lawyer present they can ask him all kinds of things about al Qeada's functioning as long as it's not about his own case, or going to be used in court against him. (That's what the Fifth Amendment from that Pesky Constitution is all about)

His attorney's only requirement is to protect his client, not to protect al Qeada. In fact, it's because of what abdulMuttalab has told us - without the Military - that we even know that former Gitmo detainees were involved in his training in Yemen.

Guiliani is a former Assistant Attorney General and Federal Prosecutor - he should know better than this. He really should. But for the sake of Partisan Politics he pretends he doesn't know that law or how our Justice system works. It's pathetic.

Anyone who'se ever sat halfway though an episode of Mattlock should know this stuff.

Let also point out the kind of "extended interrogations" that Ghouliani is talking about - something which is far beyond what would be allowed for any P.O.W. under Geneva (ie Name, Rank, Serial Number)- are likely to be thrown out even in a Military Tribunal setting and not admissible, ending in a ruined case just as it did in the case one living accused 9-11 Hijacker Mohommad al-Qhatani.

"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that’s why I did not refer the case" for prosecution. [...]

Oh, and one more thing -- according to FBI (Ali Soufan) and Military (Matthew Alexander) Interrogators who did get us actionable information after 9-11 and in Iraq Torture Doesn't Work at giving us accurate information, besides the fact it's inadmissible in ANY court.



From Salon.com

WASHINGTON -- The testimony of a key witness at a Senate hearing Wednesday raised serious questions about the truthfulness of former President George W. Bush's own personal defense of the CIA's brutal interrogation program. Former FBI agent Ali Soufan also indicated that the harsh interrogation techniques may actually have hindered the collection of intelligence, causing a high-value prisoner to stop cooperating.

In the first congressional hearing on torture since the release of Bush administration memos that provided the legal justification for torture, Soufan told the Senate Judiciary Committee that the CIA's abusive techniques were "ineffective, slow and unreliable, and as a result harmful to our efforts to defeat al-Qaida." According to Soufan, his own nonviolent interrogation of an al-Qaida suspect was quickly yielding valuable, actionable intelligence -- until the CIA intervened.

This is NOT the road we need to be running blindly back down. As has been posted in another diary - Obama's Approval Rating on his handling of the attempted Detroit Plane Bombing is 57% favorable.

What Obama's doing isn't broke, so don't fix it.

Vysn

Lynn Cheney does the Torture Tango

In the wake of this weeks inadvertant admissions by Dick Cheney that the U.S. has engaged in Water-boarding of terrorist detainees, his wife Lynn Cheney went on CNN to dance around the corpse of Democracy in our front yard defend her husband and the administration. In the process she yet again broke the emergency glass on that old Conservative Canard - Liberal Media Bias...

CHENEY: Well, you know, right there, Wolf, "BROKEN GOVERNMENT." Now, what kind of stance is that? Here we are. We're a country where we have been mightily challenged over the past six years. We've been through 9/11. We've been through Katrina. The president and the vice president inherited a recession. We're a country where the economy is healthy. That's not broken. This government has acted very well.

The ridiculousness of Cheney's performance can not be understated. She proclaimed, in response to the recent Jimm Webb Novel controversy that her novel "Sisters" did not contain lesbian love scenes.

BLITZER: Here's what the Democratic Party put out today, the Democratic Congressional -- Senatorial Campaign Committee: "Lynne Cheney's book featured brothels and attempted rape. In 1981, Vice

President Dick Cheney's wife, Lynne, wrote a book called "Sisters", which featured a lesbian love affair, brothels and attempted rapes."

CHENEY: No.

BLITZER: "In 1988, Lynn Cheney wrote about a Republican vice president who dies of a heart attack while having sex with his mistress." Is that true?

CHENEY: Nothing explicit. And actually, that was full of lies. It's not -- it's just -- it's absolutely not a...

BLITZER: Did you write a book entitled "Sisters"?

CHENEY: I did write a book entitled "Sisters."

BLITZER: It did have lesbian characters.

CHENEY: This -- no, not necessarily. This description is a lie. I'll stand on that.

See, there you go - it's all a pack of lies from the Liberal Left. Nothing to see here - move along.

Except maybe this from the New York Daily News:

Choice scenes adapted from "Sisters" included one in which two female characters write to each other: "Let us go away together, away from the anger and the imperatives of men. We shall find ourselves a secluded bower where they dare not venture. There will be only the two of us, and we shall linger through long afternoons of sweet retirement."

One of Cheney's characters swoons to a Sapphic love letter: "How well her words describe our love - or the way it would be if we could remove all impediments, leave this place, and join together ... Then our union would be complete. Our lives would flow together, twin streams merging into a single river."

Now, let me be clear - I don't have any issue with Lesbian Love Scenes - I have a problem with people, like Cheney, who think everyone else is so dumb that they'll let them get away with such a blatant lie.

But then again, the Vast Left-Wing Conspiracy must be to blame for it. Yeah, it's all the fault of those crazed liberals and their media front men like Blitzer.

Cheney, in response to CNN daring to tell the story of a former detainee who had been apprehended in England, rended to Pakistan, Afghanistan, then Gitmo and finally - stated:

CHENEY: You know, I think that you might be a little careful before you declare this as a person with clean hands.

BLITZER: You're referring to the CNN "BROKEN GOVERNMENT" special.

CHENEY: I certainly am.

BLITZER: This was the one that John King reported on last night.

Here's the detainees story from "Broken Government":

Meet Moazzam Begg from Birmingham, England. He vividly remembers when he was taken into custody: A midnight knock at the door soon after he had relocated from Afghanistan to Islamabad, Pakistan.

"I opened the door to be faced with people, several of them, pointing guns and electric stun guns. None of them said anything," Begg said. "They didn't ask me any questions, they didn't identify themselves. ... I was made to kneel, my hands were shackled behind my back. My legs were shackled. And the last thing I saw -- they put a hood over my head -- was them walking towards the room where my children were."

During a tense van ride, he would come face to face with his captors -- and the reach of Bush's executive powers in the post-9/11 world.

"Somebody lifted the hood off my head," Begg told CNN. "And I heard an American voice speak to me. And I saw him, and he produced a pair of handcuffs. And he said, 'These handcuffs were from a widow of a September 11 victim' -- given to him in order for him to capture the perpetrators."

Begg spent nearly three years in U.S. custody -- in Pakistan, Afghanistan and then the detention facility at Guantanamo Bay, Cuba. To this day, the CIA and FBI consider him a threat to the United States, but he was released from custody after appeals from British Prime Minister Tony Blair. He now lives back in his hometown.

Three Years. Held that entire time without charges, without explaination, without access to counsel.

Under the just signed Military Commissions Act alien detainees such as Begg no longer have any access to Habeas Corpus. Yes, this means British Citizens too - although they have a perfectly working police force of their own and extradition treaty with the US - we apparently didn't have time for such niceties - we geez only had three years or so to figure out if this guy was really dangerous or not, where you expecting swift justice or something? That's Pre-9/11 Thinking there pal, so you can just stop that right now.

For years the Administration has been running an international kidnapping ring through the CIA, secretly rounding up terrorist suspects - not Actual Terrorists, just Suspects - and shipping them off to Egypt, Pakistan and Saudi Arabia to be held in hidden prisons outside the view of the international red cross where they have been torture - the kind of facilities that were highlighted in the first season of Keiefer Sutherland's "24". (Remember when they found Dennis Hopper's character in the underground bunker somewhere in LA Country?)

And just for the record, more then a few times - they've gotten the wrong target.

But to Lynn Cheney and her ilk, the concept of Habeas Corpus and the presumption of innocence is something we should be "careful" of? Yeah, something is serously "Broken" in that thinking all right.

The truly frightening part is how desperately the Cheney's of the world will cling to the information forcibly coereced from these "suspects". Particularly Ibn al Shakh al-Libi.

LONDON (AFP) - An Al-Qaeda terror suspect captured by the United States, who gave evidence of links between Iraq and the terror network, confessed after being tortured, a journalist told the BBC.

Ibn al Shakh al Libby told intelligence agents that he was close to Al-Qaeda leaders Osama bin Laden and Ayman al-Zawahiri and "understood an awful lot about the inner workings of Al-Qaeda," former FBI agent Jack Clonan told the broadcaster.

Libby was tortured in an Egyptian prison, according to Stephen Grey, the author of the newly-released book "Ghost Plane" who investigated the secret US Central Intelligence Agency (CIA) prisons that housed terror suspects around the world.

US President George W. Bush confirmed the existence of the network of CIA holding facilities overseas during a September 6 speech defending controversial US interrogation practices.

Libby was apparently taken to Cairo, Clonan told the broadcaster, after being captured in Afghanistan in the aftermath of the September 11, 2001 attacks in the United States.

"He (Libby) claims he was tortured in jail and that would be routine in Egyptian prisons," Grey said.

"What he claimed most significantly was a connection between ... Al-Qaeda and the Iraqi regime of Saddam Hussein. This intelligence report made it all the way to the top, and was used by (former US secretary of state) Colin Powell as a key piece of justification ... for invading Iraq," he told the broadcaster.

Powell watched a video tape of al-Libbi confession prior to his inclusion of allegations that Saddam Hussein had been working with Al-Qaeda and might pass on chemical/biological weapons technology and training to them. He was key linchpin in the "Don't wait for the mushroom could" strategy.

Unfortunately, al-Libby was a liar.

And his lies, prompted on by his treatment, have led us into an irresponsible War and devastating occupation of an Unarmed Nation.

Yet to this very day, the Adminstration refuses to admit they were wrong about Saddam and Al Qeada.

They refuse to even admit that we employ torture.

Vice President Cheney said yesterday that he was not referring to an interrogation technique known as "waterboarding" when he told an interviewer this week that dunking terrorism suspects in water was a "no-brainer."

Cheney told reporters aboard Air Force Two last night that he did not talk about any specific interrogation technique during his interview Tuesday with a conservative radio host.

"I didn't say anything about waterboarding. . . . He didn't even use that phrase," Cheney said on a flight to Washington from South Carolina.

Earlier in the day, White House press secretary Tony Snow told reporters that the vice president was talking literally about "a dunk in the water," though neither Snow nor Cheney explained what that meant or whether such a tactic had been used against U.S. detainees.

"A dunk in the water is a dunk in the water," Snow said.

Why exactly would you "dunk someone in water" during an interrogation - if not to make them think they're about to drown?

What else could it be? The guy was really thirsty - so we gave him the entire bucket all at once? Is this supposed to be like a carnival ride or something? Is anyone on earth buying this bullshit anymore?

The United States Tried and Convicted Japanese Soldiers for the War Crime of WaterBoarding in 1947.

Now our Government employs those - and likely even worse - techniques. Even if they're guilty we can't legally even TRY THESE PEOPLE, because if they've been tortured any guilty statements are inadmissable (except the that MCA also created some loopholes around that little snag). But to people like Lynn Cheney, it's all just 'lies and distortions".

Keep thinking that Mrs. Cheney - right until Election Day and you get a serious wake up call because you know what?

"Reality has a Liberal Bias" - Steven Colbert.

Amen.

Update Wolf Blitzer has further responded to Lynn Cheney's >attack on his patriotism - when she asked Blitzer "Don't you want us to win?"

Today on CNN’s Late Edition, Blitzer said he was “surprised” at Cheney’s “sniping at my patriotism,” and pointed out that CNN had specifically labeled the tape of a U.S. soldier under fire as terrorist “propaganda.” He also said that CNN had made clear to Cheney’s staff “only hours before the interview” that she would be asked questions about politics during her appearance, not just about her children’s book.

It's the kind of attack that is now common place among Conservatives who think only they have the correct answers to terrorism and al-Qaeda. To them it's inapproprate for CNN to broadcast terrorist propaganda (with caveats) - but the RNC can use it to attack Democrats and stir up fear all they like.

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

Our Deep National Shame

This week Senate Republicans have reached a compromise on Torture with the Bush Administration that effectively guts the Geneva Conventions and our nations Moral Authority.

If this legislation is signed into law - the United States will officially become a Rogue Nation. A Terrorist State that sanctions the commission of War Crimes, by simply redefining them out of existence.

The President will be allowed to become the sole Deciderer of what is legal and constitutes a "grave breach" of human dignity and what doesn't. Establishing law and fact via Executive Fiat, like the decrees of an Emperor - not a President.

Someone needs to tell Senators Graham, Warner and McCain that what they've just done by handing this authority over to Bush, is the equivelent of letting the head of the Gambino Crime Family define what is and isn't Racketeering and Murder.

From Federalist 47:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.

Make no mistake - this is indeed Tyranny - and will be a stain on our national character that will last with us for generations, just as we continue to live with the shame of the Tuskegee Experiment and Interment of Japanese Americans during WWII.

But this... this is worse. We didn't torture the internees.

I'm almost at a loss for words.

The idea that the technique used by Jack Bauer on 24 are soon to become part of our official anti-terrorism policy is shocking. And mindnumbingly stupid as well.

U.S. officials do not use the word torture to describe their own methods. Instead, American intelligence officials speak of "aggressive interrogation measures," sometimes euphemistically known as "torture lite." According to human-rights activists who have consulted with Senate staffers involved in the negotiations, Bush administration officials are trying to redefine the Geneva Conventions, which bans "cruel practices," to allow seven different procedures: 1) induced hypothermia, 2) long periods of forced standing, 3) sleep deprivation, 4) the "attention grab" (forcefully seizing the suspect's shirt), 5) the "attention slap," 6) the "belly slap" and 7) sound and light manipulation. As NEWSWEEK reported this week in its story The Politics of Terror, a harsh technique called "waterboarding," which induces the sensation of drowning, would be specifically banned.

Thank God for small favors - no "Waterboarding". Yippee.

There is a one single good reason why U.S. courts do not allow for coerced testimony -- IT. CANT. BE. TRUSTED.

The TV Show that Bush and his Cronies should be watching isn't 24 - it's CSI.

According to data obtained by the Innocence Project, which has used DNA evidence to exonerate 180 persons who had been condemned to death row, 35 times (out of the first 130 cases - or 27%) there was a False Confession and another 21 times (16%) the wrongful conviction was the result of bad information provided by informants and snitches.

All indications are that part of the bad intelligence information indicating links between Al Qaeda and Saddam Hussein, which led us wrongly into a War with Iraq, were the result of the torture of Ibn Sheik al-Libi at Gitmo - who was a "known fabricator" according to the Defense Intelligence Agency.

Yet Administration Officials such as Cheney continue to believe al-Libi's lies, and our President, the so-called "Leader of the Free World" claims with a straight face that...

this agreement preserves the most single -- most potent tool we have in protecting America and foiling terrorist attacks, and that is the CIA program to question the world's most dangerous terrorists and to get their secrets.

More potent than actually protecting the ports, instead of handing them over to the United Arab Emerites? Um,... not so much.

Both the New York Times and Washington Post seem less than enthused.

In editorials entitled "A Bad Bargain" (NYT) and "The Abuse Can Continue" (WaPo), the two papers minced no words declaring not only their opposition to the bill but its effect on the war on terror, global opinion, and history's judgement of the president.

Washington Post: "In effect, the agreement means that U.S. violations of international human rights law can continue as long as Mr. Bush is president, with Congress's tacit assent. If they do, America's standing in the world will continue to suffer, as will the fight against terrorism. . . .

"Mr. Bush will go down in history for his embrace of tortue and bear responsibility for the enormous damage he has caused."

New York Times: "[The bill] allows the president to declare any foreigner, anywhere, an 'illegal enemy combatant' using a dangerously broad definition, and detain him without any trial. .

"The Democrats have largely stood silent and allowed the trio of Republicans to do the lifting. It's time for them to either try to fix this bill or delay it until after the election. The American people expect their leaders to clean up this mess without endangering U.S. troops, eviscerating American standards of justice, or further harming the nation's severely damaged reputation."

In response to this issue when speaking with Keith Olbermann on last nights episode of Countdown, former President Bill Clinton had this to say.

Clinton: Like you take this interrogation dealing. We might all say the same thing if, let's say Osama bin Laden's number three guy were captured and we knew a big bomb was going off in America in three days.

It turns out right now there's an exception for those kind of circumstance in an immediate emergency that's proven in the military regs. But that's not the same thing as saying we want to abolish the Geneva Convention and practice torture as a matter of course. All it does is make our soldiers vulnerable to torture. It makes us more likely to get bad, not good information.

OLBERMANN: Right.

CLINTON: And every time we get some minor victory out of it, we'll make a hundred more enemies, so I think these things, I really think we need to think through all of this and debate more.

The point that has to be repeatedly made here - is that these men have not been proven guilty of anything. They haven't been tried, in fact they are being denied access to the courts -- habeas corpus, one of the founding principles of our nation, is being scraped.

Even when the Military knows that some of these people, particular the "Ghost Detainees" who have been kept hidden from the Red Cross, are innocent of any connection to terrorism, al-Qaeda or the Taliban - they have refused to released them.

Majority of Detainees "Of No Intelligence Value" or Innocent. One statement refers to "a lot of pressure to produce reports regardless of intelligence value." Brig. Gen. Karpinski's deposition also 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."

"Releasaphobia" Keep Innocent Detainees Jailed. One member of the Detainee Assessment Board said people were afraid to recommend release of detainees, "even when obviously innocent." Similarly, Brig. Gen. Karpinski spoke of "releaseaphobia" on the part of a review board. According to another report, Lt. Gen. Ricardo Sanchez allegedly said of the detainees, "Why are we detaining these people, we should be killing them." The unidentified solider who reported the comment added that it "contributed to a command climate" where "deeds not consistent with military standards would be tolerated if not condoned."

Former detainees, who were "rendered" to their native countries (Syria and Egypt), where they were tortured and then released such as Abu Omar and Maher Arar were apparently the lucky ones.

Tens of thousands of others, haven't been so lucky.

Hundreds of detainees have died in custody - including 26 which died directly as a result of abuse - and have been considered homocide. Under the War Crimes Act of 1996 (18 USC § 2441) these crimes are punishable by the Death Penalty.

From the ACLU's FOIA Documents:

Several statements refer to "ghost detainees" who died in custody, including one who died after being chained up in a shower area. Interrogators packed the body in ice and "paid a local taxi driver to take him away." (Note: this report may refer to Manadel a-Jamadi, whose death in Abu Ghraib has been widely reported in the news media.)

Is this how a nation that calls itself "civilized" behaves?

I didn't used to think so... but now I have little choice, don't I?

Instead of leading by example and giving the people of the world a strong and compelling reason to hope and struggle to create the kind of freedom, prosperity and democracy that exemplify the best of our ideals - we are now on the verge of departing from the ranks of lawful nations, and becoming exactly what bin Laden and his ilk has long claimed we were. We have become the "Great Satan".

Yeah, this will really change all those "hearts and minds' to our way of thinking any day now. "Just Wait" is not a viable foreign policy.

Unfortunately I think time is running out, and if the Democrats in Congress don't find a way to block the passage of this bill before the end of this Congress -- Game Over.

Congressional Switchboard Toll Free: 866-808-0065

Vyan

Turley on Countdown: Enemy to Rule of Law

Last night on Countdown with Keith Olbermann Law Professor Johnathon Turley of George Washington University made a series of startling statements, yet in my opinion Turley's comments where actually somewhat behind the curve of the facts. From Dkos.

OLBERMANN: We haven't even addressed and for time's sake, now, there's study after study that indicates that torture presents falsely positive information. People will say anything they think the torturer wants to hear. But... about again the layout between Bush and McCain: one question being asked a lot that I have not heard definitively answered anywhere... Is there really a difference between what the President has proposed on this and what the McCain/Warner/Graham version? Are they both torture? Aren't they both redefining the Geneva Conventions to some degree?

TURLEY: Well you really hit, I think, the most salient aspect of this. Whatever comes out of a compromise, it does seem to be an effort to redefine the Geneva Conventions because otherwise, why are you doing this? You don't need to redefine the Geneva Conventions - you don't have to do anything with it. It's a treaty. We're a signatory. We've never had to do this before. We've gotten along just fine, as has the world, with the language of the Geneva Convention. If we make any effort at all to try to redefine it or tweak it or to amplify it, the world will see that as our effort to lawyer the Geneva Convention to try to create some type of loophole or excuse for conduct

Actually we have done it before, we did it in Vietnam - we did it in South America. What we haven't done before is admit it, or even openly discuss it as the President has done.

OLBERMANN: You'll remember Mr. Gonzales' description of this five years ago as "quaint" - the Geneva Conventions or portions of it -

TURLEY: [laughs] Right -

For some reason the "quaint" memo gets a ton of play, but is in fact of little consequence. In that memo Gonzales were referring to some rather minor and trivial Geneva requirements. The big memo is the one which was revealed by MIchael Isikoff of Newsweek, which indicates Gonzales advice to the President to deny Geneva protections to detainees - specifically to avoid War Crimes Prosecution - 8 months prior to the Bybee memo.

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. This was especially the case given that some of the language in the Geneva Conventions--such as that outlawing "outrages upon personal dignity" and "inhuman treatment" of prisoners--was "undefined."

When the President says that the language "outrages upon personal dignity" are "vague" -- this is what he's talking about. He was advised in 2002 by his attorney that his actions in regards to detainees could put him under personal criminal liability. The President did indeed give the order to exclude detainees from Geneva, hence avoiding potential War Crimes prosecution -- that is until the Supreme Court brought Geneva back to the table with the Hamdan decision. Between that orginal decision 5 years ago and now has been a long, dirty road. SecDef Rumsfeld had been the chief architect of the "new expanded" interrogation policies that were first used at Gitmo, and then exported to Bagram AFB and Abu Ghraib.

"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.

The fact that Powell is speaking out now, is not nearly as strange as Turley has made it appear - he's been speaking out about this issue for quite some time while he was within the Administration. He has little choice but to continue to speak out although he is no longer an "insider".

OLBERMANN: - to some degree. Last Friday here you were telling us that some of the detainees from the secret CIA cells, when moved to Guantanamo, might have the opportunity in the immediate future to talk to the Red Cross about their own interrogations, is there anything more to the possibility that that's going to happen, which might explain the President's anger and his rush over this as having more to do with what his Administration has already sanctioned and not about what is yet to come?

TURLEY: It has all the indications that that is exactly what is happening. The Administration for years has conspicuously attempted to get things like waterboarding approved as non-torture. Waterboarding, when you convince someone they're going to drown by drowning them. At least to the point of death. And waterboarding is defined as torutre around the world.

Now obviously the Administration has not gotten that thus far. But there is a strong suspicion that we have indeed been engaging in torture. Remember, some of these people were captured when the White House had signed a memo that defined non-torture as anything short of organ failure. That they believed that as long as they didn't cause organ failure or death, they were not engaged in torture. That shocked the world.

So what has happened in the past in our name has many of us wondering. But there is a feeling - and I am one of those people that has it - that we're about to hear some accounts coming out that our President may have ordered American personnel to become torturers. And that is so serious it is almost beyond definition.

I don't think we have to wait until the former "ghost detainees" talk to the RedCross - we already have documents from the FBI and Dod available at a single click right --> here.

Among the documents released today by the ACLU is a May 19, 2004 Defense Intelligence Agency document implicating Sanchez in potentially abusive interrogation techniques. In the document, an officer in charge of a team of interrogators stated that there was a 35-page order spelling out the rules of engagement that interrogators were supposed to follow, and that they were encouraged to “go to the outer limits to get information from the detainees by people who wanted the information.” When asked to whom the officer was referring, the officer answered “LTG Sanchez.” The officer stated that the expectation coming from “Headquarters” was to break the detainees.

The ACLU also released an Information Paper entitled “Allegations of Detainee Abuse in Iraq and Afghanistan” dated April 2, 2004, two weeks before the world saw the pictures of torture at Abu Ghraib prison. The paper outlined the status of 62 investigations of detainee abuse and detainee deaths. Cases include assaults, punching, kicking and beatings, mock executions, sexual assault of a female detainee, threatening to kill an Iraqi child to “send a message to other Iraqis,” stripping detainees, beating them and shocking them with a blasting device, throwing rocks at handcuffed Iraqi children, choking detainees with knots of their scarves and interrogations at gunpoint.

“These documents are further proof that the abuse of detainees was widespread and systemic, and not aberrational,” said Amrit Singh, a staff attorney with the ACLU Immigrants’ Rights Project. “We know that senior officials endorsed this abuse, but these officials have yet to be held accountable.”

Turley continued...

OLBERMANN: How serious would that be for the President? Are there elements of the Constitution that refer to international treaties that make an American President violating international agreements like that liable or subject to criminal action within this country, let alone internationally?

TURLEY: It is a violation of both domestic and international law. But more importantly, torture is a moral under every major religion. That you cannot fight a moral war with immoral means. And if we're ready to embrace immoral means, if that's how we're going to fight this war, then we have lost. And no one will come to our aid. Wil will be alone. And that's what happens when you become - in the view of many - an enemy to the rule of law. And we cannot afford that to happen [sic].

It's already happened Mr. Turley - it's already happened. The only real question is not whether the compromise bill coming out of the Senate changes Geneva, which it probably won't, the real danger is that it will - yet again - abrogate Habeas Corpus by denying detainees held of foreign soil the right to challenge the basis for their detention in court. This would not only affect -11 mastermind Khallid Sheik Mohammad, but also Pulitzer Prize winning AP Photographer Bilal Hussein who has been held by U.S. Forces for five months without charges or a hearing.

Chances are that any such law would eventually be struck down, just at the Graham-Levin Amendment to the Detainee Treatment Act was by Hamdan - but that eventually is years away, and quite a bit of "alternative interrogation" could certainly take place during that time, while the subjects of such methods would have no representation and no legal recourse available to them.

Vyan

Coming off the rails for Rove

This week the President's plan to "reinterpret" the Geneva Conventions ran into a bit of a snag - three snags - named McCain, Warner and Graham. But there's a subtext to this story of Republican vs Republican, if the President, Vice President and Secretary Rumsfeld's claims that anyone who disagree with them is "confused", "aiding the enemy" or an "appeaser" -- does that also apply to their Republican critics such as Colin Powell?

In opposing the President's plans Senator McCain stated Sunday on This Week.

"When in our custody Al-qaeda deserve nothing - except the fundamental rights that all prisoners under the Geneva Conventions. The Vietnamese treated us rather badly, but that didn't mean that responded by altering the Geneva Conventions".

"I believe this has nothing to do with politics," McCain said. "No matter what the political impact is, this is a matter of conscience."

But can McCain truly be taken seriously after his recent rightward turn and embracing of old foes such as Jerry Falwell? He seems to be the epitome of an opportunist, last year he fought hard to implement a torture ban, despite fierce Administration opposition only to have that ban implemented with a poison pill (the Graham/Levin Amendment) which denied detainees access to the courts and effectively rendered the entire bill moot and unenforceable. What is the point of banning torture if you also gag anyone who might have been tortured and deny them access to lawyers or the courts?

This is merely an exercise in political theater. But along the way McCain may have just step seriously on not just the President's shoes - but Karl Rove, the clear architect of the current"Democrats are weak" strategery.

The money quote however was this one:

"We have to hold the moral high ground. We're the nation that people look up to. We can't lower our standards simply because others do. We hold no respect for al-Qaeda. We don't think al-Qaeda will observe those Conventions - but we're going to be in other wars. And there's two reasons why all these retired military guys - who are not soft on terror or al Qaeda - are coming down vehemently against modifying the Geneva Conventions. 1) is the Moral High Ground. We are not like al Qaeda. There's a war on the battlefield and a psychological/idealogical war going on and 2) They are very worried about American forces who will fall into the hands of nations who will "reinterpret" or modify the Geneva conventions."

I would argue that there is a third reason that we shouldn't modify Geneva, because it can be considered a War Crime. And as I diaried on Dkos the other day, a country that sets and maintains a standard of treating it's captives well - has a greater chance for ultimate victory than one that mistreats them and provides further motivation for their opposition. This was made clear to us during WWII in Europe as Italian and German forces were far more likely to surrender to us, rather than the Russians and face their Gulags. And it was also made clear during the first Gulf War when most of Saddam's forces were more than eager to give up rather than be slaughtered. Now - partly because of Abu Ghraib and many other abuses such as Haditha and Fallujah - we face an enemy that would much rather die than be defeated and surrender.

However, the devil is in the details. Listening to Laura Flanders this weekend, she made the point that this isn't a case of three-card Monty with our rights. They aren't hiding under the House Bill, the Senate bill or the WhiteHouse Bill. All of these bills, like the Graham/Levin Amendment to the Detainee Treatment Act of 2005, essentially toss habeas corpus out the window.

We may formally acknowledge that we will not violate Geneva. Fine. But if persons such as Osama Moustafa Hassan Nasr, who was apparently kidnapped by the CIA in Italy and sent to Egypt where he claims to have been tortured until they discovered he knew nothing and was released - would have no legal recourse. Olbermann has speculated about what happens when Khallid Sheik Mohammad, who has now been transfered to Gitmo begins talking to the Red Cross -- but the answer to that is nothing. He has no ability to sue under Graham/Levin, and that is likely to remain true under any bill that exits Congress before the Election.

Further, there is still the issue of evidence gathered using coercive means being introduced secretly at trial - where they would not be subject to a fruits of the poison tree challenge and the fact that Bush continues to claim special super-dooper executive powers that allow him to fore-go and ignore laws which he disagrees with (such as FISA). So what exactly is there to stop him from continuing to ignore Geneva no matter what Congress decides?

In the end, all the bluster, strum and drang between Powell, McCain and Bush is likely to amount to big hill of nothing. Bush will - must - do everything in his ability to protect himself from possible War Crimes prosecution, and if he has to use this ex post facto method of covering his tracks while giving a tacit nod to the continuance of Geneva - he will. But that doesn't mean he'll abide by the law. In the meantime, McCain's words that those who oppose the President - ARE NOT SOFT ON AL-QAEDA - should not go unrepeated.

Say it with me now - John McCain is not soft on Al Qaeda. John Murtha is not soft on Al-Qaeda. Neither is John Kerry or Russ Feingold.

The big loser in all of this - is Karl Rove - as it appears that some Republicans have not only abandoned the President, they've chosen to completely undercut the insult politics that this Administration thrives on. How do they now repeat the kinds of attacks we've seen on decorated veterans - who happen to be Democrats- such as Murtha, Max Cleland or Kerry?

How can they continue to argue that these guys are "traitors" or "appeasers" when their standing shoulder to shoulder with Powell, McCain, Graham and Warner?

I don't think they can.

Less than 60 days to the election and Rove has already played his trump card and had it fail. The Republicans are going to lose Congress, probably both Houses. Rove probably knows this well, as does the RNC. Their next likely strategy is to let the Democrats take control -- and then play the "see, look at what they do once their in power" game and argue for retention of the Presidency in 2008 by a Republican - an "independent" Republican (with Jerry Falwell's hand in his pocket) like McCain. A strategy that might prove very effective if Democrats attempt to impeach George Bush without first laying the groundwork and making the need for such an action clear in the minds of the American people.

Although the ranting of John Yoo in the New York Times Post should make the grave danger of the Bush Administration to the fabric of our Democracy obvious, it still hasn't sunk in yet. Glenn Greenwald shines a spotlight on it:

Why is it even necessary to point out that the U.S. President does not have the power to violate laws which he thinks are "wrongheaded or obsolete," or that Presidents have no authority to disregard "wrongheaded or obsolete judicial decisions" (whatever that might mean)? And what permits a "law professor" to claim otherwise on the Op-Ed page of the NYT? Under this administration, there is no notion too radical or authoritarian to be off limits not only from being subject to debate, but from being implemented.

Just look at the things we're debating -- whether the U.S. Government can abduct and indefinitely imprison U.S. citizens without charges; whether we can use torture to interrogate people; whether our Government can eavesdrop on our private conversations without warrants; whether we can create secret prisons and keep people there out of sight and beyond the reach of any law or oversight; and whether the President can simply disregard long-standing constitutional limitations and duly enacted Congressional laws because he has deemed that doing so is necessary to "protect" us.

It should be obvious that the people who are "confused" are inside BushGov. The ones who have further "emboldened the enemy" with their tactics aren't Kerry or Murtha, it's Bush and Cheney with their torture fetish. Unfortunately, I don't believe most of the American people truly realize just how fucked-up we've really become over the last five years - or that they'll finally figure it out over the next two.

But one can always hope.

Vyan

Crossroads for America:To Torture or Not

We live in interesting times. The center of a watershed moment where America will either stand true to it's own core values, or slide down the slippery slope toward torture and totalitarianism that the President desperately desires.

With little time left before a very likely Democratic Congress and Senate come into power - the President's desperation to avoid culpability for his own War Crimes grows more palpable.

As I outlined on July 1st, the Hamdan decision has effectively sealed this President's fate and legacy as a War Criminal, his last gasp is to end-run Common Article 3, if he can.

To this end the President has pursued the enactment of New Detainee Torture Act, which would effectively make the treatment they've already been using, essentially legal.

Q Thank you very much, sir. What do you say to the argument that your proposal is basically seeking support for torture, coerced evidence and secret hearings? And Senator McCain says your plan will put U.S. troops at risk. What do you think about that?

THE PRESIDENT: This debate is occurring because of the Supreme Court's ruling that said that we must conduct ourselves under the Common Article III of the Geneva Convention. And that Common Article III says that there will be no outrages upon human dignity. It's very vague. What does that mean, "outrages upon human dignity"? That's a statement that is wide open to interpretation. And what I'm proposing is that there be clarity in the law so that our professionals will have no doubt that that which they are doing is legal. You know, it's -- and so the piece of legislation I sent up there provides our professionals that which is needed to go forward.

Vague? Vague?!! Common Article III has been in existence for 50 years and this is the first time that I know of that someone has claimed it is - Vague! "No" means "NO" Asshole! Zero. None. Zilch. That statment is not open to interpretation, it's pretty clear and obvious. Those who oppose the Administration on this point, such as Colin Powell are not "confused", they are not "appeasers" -- or let's be honest because we know what they're really thinking - they are not "girly men".

Even Tony Snow has sheepishly begun to admit that he'd gone over the line (via Glenn Greenwald) when he reflexively bashed Powell.

Tony Snow yesterday had to retract his statement calling Colin Powell "confused" all because Gen. Powell thinks the U.S. should continue to abide by the Geneva Conventions, and as part of that retraction, Snow oh-so-generously added: "I know that Colin Powell wants to beat the terrorists, too." They exploit terrorism for political gain so reflexively that accusations of being sympathetic to terrorists just comes pouring out of their character-smearing mouths even when the targets are individuals who have devoted their adult lives to service in the American military.

More from Yesterday's Rose Garden Press Conference:

Q Thank you, Mr. President. Mr. President, former Secretary of State Colin Powell says the world is beginning to doubt the moral basis of our fight against terrorism. If a former Chairman of the Joint Chiefs of Staff and former Secretary of State feels this way, don't you think that Americans and the rest of the world are beginning to wonder whether you're following a flawed strategy?

THE PRESIDENT: If there's any comparison between the compassion and decency of the American people and the terrorist tactics of extremists, it's flawed logic. I simply can't accept that. It's unacceptable to think that there's any kind of comparison between the behavior of the United States of America and the action of Islamic extremists who kill innocent women and children to achieve an objective, Terry.

Bush may find it "Unacceptable" - but thinking that the United States has an obligation and a duty to abide by it's own law and it's own treaties - is exactly what much of the world thinks. This line of arguement by Bush effectively ducked the question - and follows the path the Administration has been following for quite some time -- attack the critic, not the argument.

Four years ago, then White House Counsel Alberto Gonzales urged the President to deny Geneva protections to terrorist detainees, not because they didn't deserve them - but because he expected that doing so would leave The President Vulnerable to War Crimes Prosecution Under U.S. Law

When the President talks now about "providing clarity" such as in this passage:

...the Court said that you've got to live under Article III of the Geneva Convention, and the standards are so vague that our professionals won't be able to carry forward the program, because they don't want to be tried as war criminals. They don't want to break the law. These are decent, honorable citizens who are on the front line of protecting the American people, and they expect our government to give them clarity about what is right and what is wrong in the law. And that's what we have asked to do.

The truth is - that HE doesn't want to be tried for War Crimes because the President, after denying Geneva, has long ago authorized measures which clearly violate the "human dignity" of detainees, and he knows this.

As I stated in July the ACLU has found a paper trail leading directly from Bush to Gitmo and Abu Ghraib.

In January 2002 Gonzales argues that Geneva shouldn't apply to "Enemy Combatants" because it would make "U.S. Officials" vulnerable to Federal War Crimes violations.

In February, the Administration announces that al Qaeda and Taliban are "not included" in Geneva (although they conduct no tribunal as required by Geneva to determine this).

In August of that same year the Bybee memo is written which redefines what "Torture" is.

In October 2002 Gitmo commanders request "that additional techniques beyond those in the field manual be approved for use.""

In December of 2002 SecDef Rumsfeld allows for "stress positions," hooding, 20-hour interrogations, removal of clothing, exploiting phobias to induce stress (e.g., fear of dogs), prolonged isolation, sensory deprivation, and forced grooming. These techniques soon spread to Afghanistan and later to Iraq." according to documents obtain by the ACLU.

Also in December the FBI begins complaining to the Defense Department about the conditions at Gitmo, and in Afghanistan some detainees are "killed during interrogation" at Bagram AFB.

To date we have had 26 Deaths-in-Custody, which have been ruled as "Homocide" due to mistreatment. Those deaths, as well as those of tens of thousands of innocent Iraqis, lay directly at the feet of George W. Bush.

Everything he is doing right now - trying to push the Geneva redefinition through Congress - is meant to do nothing more than cover his ass, Period.

If he fails, and I'm certain he doesn't intend to fail - he can't afford too - he will face a Democratic Congress with subpeona power and one John Conyers as head of the Impeachment Committee - Judiciary. A man who has already called for Special Prosecutor to investigate War Crimes by the Bush Administration. If that call is ever answered in the wake of Hamdan, Bush is Doomed.

This is his last chance, and I for one expect to see him pull out all stops.

But he MUST. NOT. SUCCEED.

America can not openly go down the road he is headed. We can not turn our backs on Geneva, and begin to play around with the margins human decency, pretending that the use of extreme cold and/or loud music is an acceptable method of treatment - whether you like Red Hot Chili Peppers or not - these can never acceptable methods for how we treat people who haven't been put on trial yet.

Never mind Geneva, the 4th and 8th Amendments makes this clear.

It's not just a matter of protecting American soldiers who may be captured, there is also a military case for this. During WWII many Italian and Germany soldiers surrendered to U.S. - rather than the Russians - because they knew they would be well treated.

The Germans committed Genocide, but not only that they commited War Crimes against American soldiers at Malmedy. U.S. soldiers held by the Japanese were regularly tortured, starved and murdered. Geneva was intended to put an end to this, and the U.S. was at the forefront of creating Geneva.

Even during the first Gulf War, Iraqi military units were very willing to surrender when outmatched rather than fight to the death -- and thus the bloodshed was minimized and victory achieved in a fairly short time. Colin Powell, who command our troops during Gulf War I understands this - George Bush who protected the Texas Skies from the Vietcong - doesn't.

And so came Abu Ghraib.

After which we suddenly we faced an enemy - actually several enemies - that would absolutely do anything - but surrender.

Since then we've had Task Force 6-26 a U.S. Special Forces Unit who used Saddam's old torture chambers to continue the exact same work, Haditha (where 24 civilians were gunned down in cold blood), Fallajah where the U.S. used chemical warfare on the population and the rape and murder of a teenage Iraqi girl and her entire family by U.S. soldiers.

Clearly, we're sliding down the slope - not climbing upwards. Meanwhile, the insurgency and impending Civil War in Iraq continues to get stronger. Going the way we have been - even if we do achieve "Victory", capture and/or kill Osama bin Laden and break up the Al Qaeda Network, we will still have lost and disgarded far more than we will have gained.

This is what Human Rights Watch has to say about it.

Following the terrorist attacks [of September 11], many Americans understandably wanted their government to do anything possible that might protect them from terrorism. The Bush administration exploited that fear to push through various measures with scant regard to international human rights standards. Systematic prisoner abuse, widespread detention without trial, and proposed kangaroo courts were the result. Abu Ghraib, Guantánamo, and secret CIA prisons became the unfortunate symbols of U.S. counterterrorism efforts. Even within the United States, the rights of many Muslim men were compromised through the misuse of laws such as those on detaining immigrants and "material witnesses." Governments around the world, in turn, exploited the U.S. government's example to launch or defend repression of their own.

These abuses are wrong as a matter of fundamental rights. Though done in the name of protection from terrorism, they are also counterproductive. Fighting terrorism effectively requires not just stopping existing terrorists but also preventing the generation of new ones. By all accounts, U.S. abuses in the name of fighting terrorism have been a boon to terrorist recruiters. The loss of the moral high ground has made it harder to dissuade angry young men from resorting to the deliberate killing of civilians.

This Country has to make a choice: Will we honor the sacrifices made to fight fascism and totalitarianism made by our forefathers by remaining true to the ideals of the 8th Amendment and Bill of Rights -- or will we fail them?

Bush has made it clear which way he intends to go, and it's also clear that this path has made us less safe, not moreso.

Contact your Senators and Congressmen at let them know which fork in the road to take. Congressional Operator Toll Free: 888-355-3588

Vyan