Powell: Close Gitmo Now!

This morning on Meet the Press former Secretary of State Colin Powell strongly denounced America's use of Guantanemo Bay to detain terrorist suspects as well as the Military Commission system which so far, has completely failed to implement justice for even a single detainee.

Watch it:

[It's] a major problem for America’s perception. Iif it was up to me, I would close Guantanamo — not tomorrow, this afternoon.

But it's not like he would simply let them go....

I would simply move them to the United States and put them into our federal legal system.

Preempting the argument that this might give some of them "access to lawyers" and "habeas corpus".

So what? Let them. Isn’t that what our system’s all about? And oh, by the way, we have over 2 Million people in our jails who all had access to lawyers and habeas corpus - we know how to handle bad people in this country.

Then he truly hit the nail on the head when it comes to why some in our government continue to insist on the need for Gitmo.

[E]very morning I pick up a paper and some authoritarian figure, some person somewhere, is using Guantanamo to hide their own misdeeds,

That's right kiddies, we've been hiding these people in Gitmo not because of what they've done - but because of what we've done to them in our efforts to gain information using illegal methods. The entire Military Commissions Act was designed to protect and hide the use of coercive interrogation techniques, to allow for the use of that coereced evidence and even stripped away the 5th amendment protection against self-incrimination. As Jonathan Turley has pointed out...

It's only through Habeas, that you have access to all your other rights.

By striping Habeas from "alien unlawful enemy combatants" the MCA attempted to block access to all of their rights, because without that one - none of the others can even be addressed. This strategy was the perfect follow-on to the Detainee Treatment Act of 2005 which claimed to prohibit torture, yet at the same time blocked the ability of detainees to bring mistreatment claims before a court in their own defense. So sure, "we don't torture" - but if we did, there's nothing anyone can do about it is there?

Exactly why some people seem enamoured with this Jack Bauer bullshit is beyond me. It doesn't even work in fantasyland. Last night I saw a 24 rerun, where they captured CTU techinician Gial after he had been helping the Salazar Cartel as Jack broke it's leader out of prison. Ryan Chappele ordered chemical torture techniques to be used on him and guess what... he didn't break. Not until Tony Almeada showed up and let them know he, Gial and Jack had been setting up and undercover sting operation on the Salazars.

Oops.

And now we've taken this cowardly macho bullcrap and implemented it internationally. U.S. CIA operatives are being tried for kidnapping in Italy. Many of our own NATO allies are furious with us over our Secret Prisons.

We don't need to do this, we never did - just as Powell summarized.

[W]e have shaken the belief that the world had in America’s justice system by keeping a place like Guantanamo open… We don’t need it, and it’s causing us far more damage than any good we get for it.

Amen to that.

It's feuling the international Jihad, it's fueling the insurgency. It's part of the perpetual insurgency engine. It's long past time we switched that engine off.

Vyan

This Failed Presidency

Sometimes I'm completely dumbstruck at what this President has so nonchalantly wrought, how he has destroyed American credibility, broken our military and destroyed Iraq while time and time again letting those who attacked us off Scott Free and criminally neglecting the needs of nation at home.

The full depth of Bush's bullshit is truly staggering if you even try to recount it all, or even the half of it that we know about.

It's a bit like the old adage about the frog and the boiling water. Put him directly in a hot pot and he'll simply leap out, but place him in while the water is still cold then slowly raise the temperate and he'll sit there quietly until his skin peels off and he cooks alive.

That's what has happened to America.

This week we learned that Bush's former White House Counsel, Alberto Gonzales and his Chief of Staff Andrew Card with the direct support and intervention of President Bush ambushed Attorney General John Ashcroft on his sickbed, in order to override his deputy James Comey into implementing an illegal domestic spying program that would shatter the privacy of millions of Americans and that when they refused - Bush and the White House went ahead and did it without them anyway!

What's even more staggering is that ABC and CBS haven't even bothered to report this story.

Imagine if we'd learned of such a thing in the year 2000? Think back to how the press howled at the allegations that the Clinton's had prematurely removed members of the White House Travel Office merely because - they were about to be indicted, and strove to replace them with "someone they could trust."

Y'know, like people who weren't potential felons.

All the White House Press Office does is arrange for the travel by the White House Press Corp to accompany the President and his staff - period. They - unlike the fracking Justice Department - don't have any real power to influence or implement policy.

We also had the "scandal" of some people in the Clinton White House having access to the FBI records of members of the previous administration due to an outdated access list provided by the Secret Service.

"They must have wanted those records for political dirty tricks."

Yeah, sure - the Secret Service does that all the time.

Flip that scenario on it's head in terms of relative political targets and multiply by about 1.2 Million and you have the Bush's Domestic Spying program in a nutshell, albiet a rather l.a.r.g.e nutshell.

Now we have Senate Confirmed U.S. Attorney's being fired for no reason, some reason, mutiple-reasons - all smoke screens to hide the real reason - none of which new Attorney General Alberto Gonzales was aware of or can seem to remember. At one point Gonzales wished that his deputy Paul McNaulty knew more and was more involved, and then he later claimed that McNulty knew everything all along.

Uh huh. And somehow Gonzales still retains the "full confidence" of this President.

This President, who claims to "Support the Troops", yet never fails to use them as props and shields while letting our wounded languish in rat infested squalor, has opposed legislation to have our flags lowered to half-mast in honor of fallen soldiers in the same way that we honored those slaughtered at Virginia Tech. He has oppossed and threatened to Veto raising their pay and death benefits while the price tag for his failed war sky-rockets above $500 Billion.

Despite all the blood and treasure we've spent, not to mention the millions of Iraqis impacted by our sad misguided attempt at "regime change" - Iraq is still on the verge of become a failed state.

The Iraqi's didn't want the Surge, but we surged anyway.

So far, that Surge - like so many Bush initiatives - has failed. And doesn't look like thing will get any better "when September comes", so we can certainly expect Bush's response to be to call for a Super-Surge even though recruitment has become so dismal the Army has been coaching new recruits on how to beat the drug tests.

Addicts with heavy firepower. Great.

That's likely to just hand us more and more Haditha's.

The U.S. Army private accused of raping and murdering a 14-year-old Iraq girl "was a high school dropout with three misdemeanors and was accepted into the Army just as the military, desperate for recruits, began issuing more ‘moral waivers.’"

It's gotten so bad even Republicans are starting to say "if the Iraqi government wants to leave - we should"

Here's a newsflash, 83 members of the Iraqi Parliament (about 1/3rd) asked for a timetable for our troops to withdraw - almost two years ago. And just this month, that 1/3 has grown to a Majority of the members of Iraqi Parliament who've now signed a petition ASKING US TO LEAVE.

You think we're gonna leave? Not with this President.

This President, who went golfing and campaiging while an American City Drowned in a toxic stew of piss, raw sewage, gasoline and decaying bodies.

This President and White House, who when Governor Sebelius correctly pointed out that the equipment Kansas needed after a devastating tornado attack has been sent to Iraq, much like the lack of response to Katrina, Blatantly LIED and claims she never asked for any equipment.

What? Did she forget to say "Simon Says?"

This President, who despite all his tough He-man talk about "fighting them over there" (so our soldiers can die much more conveniently) Completely. Totally. Dropped. The. Ball. On. 9-11 when it Counted.

MR. RUSSERT (Speaking to George Tenet): Then in June, a briefer of the CIA named Rich B gave a conclusion saying, based on all the reporting we've seen, that "bin Laden is going to launch a significant terrorist attack against U.S." Israeli "interest in the coming weeks." July 10 you got another briefing so alarming that you picked up the phone, said to Condoleezza Rice, "I want to come see you now," jumped in the car with some of your key advisers, went to see her. Rich B, he gave her a briefing package. Opening line, "There will be a significant terrorist attack in the coming weeks or months!" And then you--and later July, Rich B sitting at the CIA, said, "They're coming here."

This President failed to recognize that Iraq was already disarmed despite being told exactly that by Foreign Minister Sabri, the UN mandated Full Declaration by Saddam and the Weapons Inspectors on the ground.

This President, who shoved a revokation of The Great Writ through a compliant supine Republican Congress simply to cover his own ass and hide his own not entirely secret campaign of terror and torture - to the delight of his ghoulish supporters and the horror of his commanding generals.

This President, who through his VP aided and abetted Treason by allowing the identity of a Covert CIA Operative to be revealed simply to support a lie and a forgery that would have undermined his justifications for an unneccesary war.

This President, who has established a shiny new set of American Concentration Camps for muslim immigrants and their children.

This President, has a VP who busted a cap in some old dudes face and is still hanging around.

This President's "No Child Left Behind" Initiative - has failed.

This President's "Abstinence Only" Initiative - has failed.

This President's "Faith-Based Initiatives" - have failed.

At every level, and in almost every way imaginable the policies and practices of this president have failed the American People.

We - the proverbial frog - have already been well and truly deep fry fucked. It's long past time we hopped out of the pot and began far more than just talk about, and drafting of resolutions for the Impeachments of Rice, Gonzales, Cheney and yes, even Bush himself. It's time to start implementing the tools of oversight of this goverment. Frankly, just impeaching Bush or one of the others is NO LONGER ENOUGH. All of them have to go because at this point I'm afraid that the damage already done just might be nearly permanent.

Iraq and it's people will never be the same again.

How do we get back the trust of the world's nations when we say we need to defend ourselves from this threat, or that threat after we FUBAR'd Iraq this badly?

The Gulf Coast, particularly New Orleans, and the survivors of Katrina will never be the same.

How do we as American people begin to trust our own government when it alternately spies on us, then neglects us when our local resources are overtaxed by flood, fire, hurricanes and tornados? Not after New Orleans and Kansas we can't. How do we trust that they'll ever be able to handle another attempted 9-11 attack?

How do we prevent future Presidents from amasing the same near unlimited power onto themselves via the fiat of quasi-constitutional signing statements, and then completely mismanaging that power as badly as Bush has?

This Presidency has Failed.

We can not afford to let this legacy stand. We can not afford to let this President or his criminal cronies escape their crimes quietly in 2009, they must be held accountable - or else we will see another future President commit them again. If possible, it might even be worse next time.

We have to get out of the pot. It may not be right now, but it has to be soon. The timer is almost about to go off.

And still, even if we do get out, American will never be the same.

Vyan

HBO's Ghosts of Abu Ghraib

"There is no such thing as a little bit of torture." -- Alfred W. McCoy, author "A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror"

Last night, literally by accident, I watched the new HBO Documentary Ghosts of Abu Ghraib. Although I've followed this issue and story for years now, I was still stunned at how this film completely deconstructs the Administration's talking points on what occured on their watch at the Abu Ghraib Prison.

Taking the issue step by step they show how rather than being a few bad apples playing "Animal House" on the Night Shift the events of the Summer of 2003 were part of a concerted effort to marginalize the Geneva Conventions and redefine torture which began in the White House, went through the Pentagon and Gitmo and eventually led to the pictures that have left a permanent scar on our nation's honor and credibility.

"These photographs from Abu Ghraib have come to define the United States," says Scott Horton, chairman, Committee on International Law, NYC Bar Association. "The U.S., which was viewed as certainly one of the principal advocates of human rights and...the dignity of human beings in the world, suddenly is viewed as a principle expositor of torture."

The film begins with scenes from the 50's documentary "Obedience" which depicts a test of just how far people will are willing to mistreat someone as long as an authority figure is present prodding them on to go further and further. In this test the subjects where asked to question a unseen - but heard - man behind a screen, who in fact was an actor. When the actor answered the question incorrectly the subjects were directed to give him electric shocks of ever increasing intensity.

Even though the unseen man would cry out and eventually scream in pain the vast majority of subjects would follow the direction of authority and eventually administer shocks which would have been lethal.

This is the context by which this film frame the events of Abu Ghraib, but first let me layout the legal issues, which I have frequently discussed on this topic.

Under the Geneva Conventions all forms of "torture and outrages upon human dignity" have been prohibited by it's signatories since 1949. The U.S. is a Geneva signatory. The film interviews former DOJ attorney John Yoo who attempts to explain how during the early days of the WOT™ a debate raged as to whether or not the Geneva applied to non-soldiers unaffiliated to any nation state such as al-Qaeda. (They also argued that the Taliban were similarly unaligned with any nation although at that point in time the Taliban were the current government of Afghanistan. Since the Taliban were formed far more recently than 1949 - it is fair to point out that they are not signatories of Geneva)

Still this belies the fact that Geneva applies to the conduct of it's signatory members, not the conduct of non-signatories. In other words it applies to the U.S. and our conduct regardless of who we might encounter during a conflict.

Geneva Article 2

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations.

It doesn't matter that al-Qaeda doesn't follow the "rules of war" - we're still supposed to.

Under U.S Law (18 USC 2441 aka The War Crimes Act) any grave breaches of Geneva by civilian personnel are considered War Crimes, punishable by 5 years in prison and even the death penalty.

Similar penalties are included for 18 USC 2340, the prohibition against torture under U.S. Law.

Geneva states that.

Prisoners of war must be humanely treated at all times. Any unlawful act which causes death or seriously endangers the health of a prisoner of war is a grave breach of the Geneva Conventions. In particular, prisoners must not be subject to physical mutilation, biological experiments, violence, intimidation, insults, and public curiosity. (Convention III, Art. 13)

In addition military personnel are prohibited from cruelty and the Maltreatment of Prisoners under the Military Uniform Code of Justice.

Although this was not mentioned by the film, a memo written by Alberto Gonzales (PDF) is where the firewall between legal conduct and war crimes began to crumble.

In that memo Gonzales argued that...

"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.

So contrary to the claims that al-Qaeda and the Taliban were declared to be not covered by Geneva because they were non-Contracting parties - even though this doesn't matter under Geneva - the truth is that they were excluded by president Bush to prevent members of his administration from being prosecuted for War Crimes!

Gonzales recommendation led to this declaration(Pdf) by President Bush which claimed that Geneva did not applied to a brand new category called "Enemy Combatants".

Gonzales later requested the Bybee Memo (Pdf) from the Department of Justice's Office of Legal Council - which included John Yoo. This memo redefined what torture was (under 2340) into such as narrow state that literally any act of cruelty which didn't immediately result on death would not be covered by either Geneva or the War Crimes Act.

We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent to intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.

Issued on the same day as the Bybee Memo, DOJ attorney John Yoo wrote his own memo arguing that interrogation techniques used on al Qaeda detainees would not violate a 1984 international treaty prohibiting torture.

Once the Bybee and Yoo memos were written, the Pentagon began to follow suit on it's new definitions. In a December 2002 memo(Pdf) Secretary of Defense Rumsfeld authorized the use of "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.

In the memo he added a hand-written note that argued..

"I stand for 8-10 hours a day, why is standing limited to 4 hours?"

Rumseld uses a "standing desk" in his office - so is indeed on his feet for 8-10 hours, however there is a major difference between standing freely where you can shift, stretch and move constantly and being held immobile in one position for hours. The fact beign held in such a position for hours while being deprived of sleep can lead to renal failure and death - similar to that which was shown in the autopsy report of a detainee held at Bagram AFB in Afghanistan in 2002.

A similar murder occured in 2003 at the hands of British Soldiers These soldiers were eventually charged with War Crimes violations, but not those at Gitmo or Abu Ghraib.

Rumsfeld later reconsidered some of these techniques after establishing a working group to analyze the situation.

April 16, 2003
Rumsfeld approves 24 of the recommended techniques for use at Guantanamo, including dietary and environmental manipulation, sleep adjustment, false flag and isolation.

Not long after these memos were written, Lt. Gen Geoffrey Miller was assigned to take over interrogations at Guantanemo Bay using the new guidelines from Rumsfeld. The JAG's complained. The FBI complained - but it didn't matter. These techniques had began to provide "results", which were sorely lacking and desperately needed in Iraq.

So Miller was then exported to Abu Ghraib in order to "Gitmo-ize" it. A month later Lt. Gen Ricardo Sanchez, the overall commander in the Iraq theater, implemented new Rumsfeldian guidelines for the handling of detainees.

From the ACLU.

September 2003
[Sanchez] authorizes the use of 29 interrogation techniques for use in Iraq, including the use of dogs, stress positions, sensory deprivation, loud music and light control, based on Rumsfeld’s April 16 techniques and suggestions from captain of military unit formerly in Afghanistan.

These techniques were later modified and limited in October of 2003 by Gen Sanchez.

The film depicts that most of the detainees held at Abu Ghraib were housed in tent cities. But a few, about 1000, were housed in what they called The Hard Site which included fairly standard looking cell blocks. The blocks were broken into various tiers. Tier 1A housed males who had been linked, or thought to have been linked to al-Qaeda and the Saddam regime. Tier 1B housed women and children - in some cases the threat of mistreating captured relatives were used to extort information from detainees.

Control of Tier 1A/1B was shifted from Brigadier General Janice Karpinski, who was in charge of all MPs in Iraq including those running the Abu Ghraib prison complex, to General Miller upon his arrival. As this shift occured the MPs at the Hard site were removed from their own standard command structure and placed under the command of Military Intelligence.

The Chain of Command had been deliberately broken.

Besides legal scholars and John Yoo, the film interviews most of the Military Police and Military Intelligence personnel who worked in Tier 1A/1B of the Hard Site, with the exception of the two most famous MPs - Lyndee England and her boyfriend Corporal Charles.

Still, even without those two persons, the picture painted by the others of how Abu Ghraib deteriorated after the arrival of Gen Miller is stark. Military Intelligence would advise the MP's when they were planning to interrogate a particular detainee and tell them...

This guy needs to have bad night tonight.

The intention was to ensure that they wouldn't be able to sleep using loudspeakers, noise and/or lights to keep them awake all night the day before an interogation session - where in many cases it appears they were severely beaten in a cedar building outside the Hard Site. What occured on Tier 1B/1B was just to "Soften them Up" prior to the real interroations.

Often MI personnel would walk through the Tier without any rank insignia. MPs would take commands from them not knowing if they were an officer or not - but in many cases MPs such as Charles Graner actually outranked the MI that they were taking orders from (This I discovered when Paula Zhan interviewed one of the Abu Ghraib MI's, shortly after the original story broke. One whom I'm pretty sure is also featured in the film. His first name is Israel.) The situation created perfect plausible deniability - "How could I command a superior to do anything?"

It was a firewall between the MPs who handled the "softening up" and higher ranking officers such as Miller who were actually in charge.

The MPs describe how the shifting directions from command left them in a "grey area" of uncertainty as to what was and was not allowed. All cards were on the table, and there were no practical limits.

As one of the Abu Ghraib MPs says in the film, "That place turned me into a monster." Another remarks, "It's easy to sit back in America or in different countries and say, 'Oh, I would have never done that,' but, until you've been there, let's be realistic: You don't know what you would have done."

The Detainees in Tier 1A were kept naked most of the time, this was done to keep them feeling vulnerable but also to humiliate them due to the prescense of female MPs who were sometimes asked by Military Intelligence to repeatedly shower a detainee while remaining within sight and ridicule them. Also much of their treatment was deliberately homoerotic, and considering the homophobia in the Islamic culture (the punishment for being gay in many Islamic states is summary beheading) this was effectively Tim Hardaway's Worse Nightmare

Geneva states.

Internees must be provided with adequate clothing, footwear, and underwear. (Convention IV, Art. 90)

Several of the MPs describe how Abu Ghraib is one of the most frequently attacked targets within all of Iraq. Mortars often landed within the tent city area, killing detainees.

Internees must not be housed in areas exposed to dangers of war. (Convention IV, Art. 83)

One female MP (I think he name is Sabrina - but I need to check) described how she would write on various detainees, for example they were told that one prisoner had been arrested for rape - so she wrote the word "Rapist" on his leg.

Identification by tattooing or imprinting signs or markings on the body is prohibited, and internees must not be subjected to prolonged standing and roll-calls, punishment drill, military drill and maneuvers, or reduction in food rations. (Convention IV, Art. 100)

The photos shown and video shown in the film of the abuse at Abu Ghraib are completely uncensored and extremely graphic (far moreso than the samples I've used here from the web) There is a sequence detailing how two detainees are caught raping a third - all three are dragged out into the hallway naked and handcuffed together by Cpl. Graner in a simulated sexual position. They're ordered to crawl back and forth from one end of the hallway to the other and stay low enough that their genitals drag on the floor.


The same female MP who had written "Rapist" on one detainees leg described how she was "always taking pictures" - it's just something she did. And she was usually smiling in them, regardless of what was happening. After being among naked groaning men for weeks and months, you grow numb to it all. It becomes "just a job". The suffering becomes background noise. "It's war" she said.

In the midst of this abuse and after most of the photos had already been taken, Military Intelligence (who were at the very least witnesses to everything) recommended Graner as NCOIC of Tier 1A for a commendation - which was approved.

This entire series of events would have never seen the light of day if Spc. Joseph Darby (who wasn't stationed at Tier 1A and is interviewed in the flim) hadn't asked Graner for some pics to take back home. "Hey Graner, you're always taking pictures". Graner gave him two CDs, the first contained scenic shots from around Babylon and included the Tower of Babel and other historic landmarks, the second had shots of the abuse of detainees. Darby handed the disc over the Army investigators.

"If there were no photographs, there would be no Abu Ghraib," said Javal Davis, an MP stationed at Abu Ghraib, who was later court-martialed.

One former detainee from the tent city tearfully tells the story of how his father, after being beaten during an interrogation session begins to have shortness of breath. As his condition worsens he desperately begs the guards to let him see a doctor but is repeated told go "Go Away" and even warned that he'll be shot if he comes back.

After his father grows feverish, he does go back and is again rebuffed only to return to his father who not long afterwards "dropped his head, sighed, and died" in his arms.

Internees must have access to adequate medical care. (Convention IV, Art. 91)

Besides the cedar interrogation shack, there were times when interrogations and torture took place on Tier 1A. Blankets were used to cover up what was happening from view - but everyone on the Tier could hear it.

As one former detainee described it...

We listened to one man scream, and scream until we heard his soul crack. Later we learned that this was Manadel al-Jamadi

CIA claimed that al-Jamadi had died as the result of heart failure, but our favorite photo taking, smiling female MP (not Lyndee England) found the body (which had been packed in ice so they could sneak it out he next day with an IV hooked to it so he would look alive) and managed to get a shot. Corporal Graner took the picture.

She had no idea, according to her filmed interview, that al-Jamadi had been beated and murdered the previous day. In her pictures which can be better seen here - it's clear that al-Jamadi is bleeding from places that he shouldn't be - if he'd just suffered a "heart attack".

al-Jamadi was the only photo documented murder to take place in Abu Ghraib and was ruled a homocide - but instead of persuing the CIA and Navy Seals who had killed him, they went after the MPs who took the pictures.

Graner was sentenced to ten years for his role in the abuse. England three years. Most of the other MP received a few months. The Military Intelligence and CIA guys who ordered some of the abuse to "soften up" interrogation targets were not charged.

General Karpinski (who wasn't even in command of Tier 1A/1B) was demoted in rank and forced to retire as a Colonel.

General Geoffrey Miller received a medal in the Pentagon's Hall of Heroes.

Secretary of Defense Donald Rumsfeld was honored with a fanfare and a parade when he retired last year.

Jay Bybee is now a sitting judge.

Alberto Gonzales remains our Attorney General and George W. Bush remains President.

Their complicity in the murder of Manadel al-Jamadi, as well as at least 30 other detainees who have died in custody in Iraq, Gitmo and Afghanistan as a result of abusive interrogation and neglect - has not been resolved.

Since the revelations at Abu Ghraib, as well as the Secret CIA Prison, the 109th Congress passed the Military Commissions Act which revoked Habeas Corpus for "Enemy Combatants" and effectively re-wrote the War Crimes Act (USC 2441) to comport with Bybee.

The DC Court of appeals has upheld the Constitutionality of the MCA.

Vyan

Quick Truths

From Randi Rhodes

Among the crucial stories that the Corporate Media has ignored over the past few days is Torture Czar Alberto Gonzales proclaiming that Constitution does not guarantee habeas corpus! He did this using logic that would also render the Bill of Rights moot.

The same day Senator Patrick Leahy (D-VT), now chairman of the Judiciary Committee, blew his top over Gonzales’ stonewalling about sending an innocent Canadian to Syria to be tortured. Randi has the clips.

At least 27 US troops were killed in Iraq over the weekend. Saturday was the third deadliest day since the invasion.

Support the anti-escalation resolution. Contact your senators and have your friends do the same.

POLLING: Americans do not want an escalation in Iraq if Congress passes the resolution.

VIDEO: Republican Chuck Hagel answers Cheney’s BS charge that the anti-escalation resolution undercuts the troops.

VIDEO: Project for a New American Century leader Bill Kristol goes after Congressional Dems for being “irresponsible.”

The Pentagon has pulled the plug on case workers for the wounded.

The Iraqi death toll climes ever higher. And more bombs are going off as I type.

Surplus US Military parts that made it to Iran and China have been traced back to the Pentagon.

One of the biggest Shiite militia leaders decides to make a show of playing nice. And why not, Americans are on the way to kill the Sunnis for him. A pretty good deal if you’re Sadr, Iran, Maliki or Osama.

As the Taliban re-constitutes in Afghanistan, they now are ready to begin offering social services, like their own brand of schools. Just another Bush “Mission Accomplished”.

3,000 more Americans arrive in Baghdad. Keep in mind Bush can keep moving around money that he already has in order to thwart the will of the people. We’ve already seen him under-equip our troops and under-fund our wounded.

On the eve of his State of the Union address, Chimpy is more unpopular than any president since Nixon.

Clinton pulls ahead of McCain in presidential polling and Bill Richardson also enters the 2008 fray.

High grade cocaine is pouring into the country thanks to an over-stretched, broken military.

And Lance Armstrong speaks out on Bush cutting cancer research for the second year in a row.

Bush's Endgame : Circle the Wagons, Scorch the Earth

The last few days have brought some rather strange events. All of a sudden Bush has done an about face on his Domestic Spying Program (or has he?)

At the same time 11 U.S. Attorney's have found themselves suddenly jobless, while AG Gonzales blamed the lawyers for Bush's lack of successful terrorism prosecutions and decided yet again to threaten Judges not to mess with the President - and oh yeah - the "Scooter" Libby trial has begun selecting it's jury.

Could all this just be a coincidence?

I think not.

We already know from prior experience that Bush doesn't do anything unless he basically has no choice. He didn't go to Congress over his Military Commissions and decide to eviscerate Habeas Corpus until after the Hamdan Decision cut he previous AUMF and Unitary Executive arguments to ribbons and exposed his administration to possible War Crimes charges.

He didn't deciderer to finally run Dumpsfeld over with the Bus - despite his three previous resignations - until after the November election clearly didn't go his way and he was looking a string of democratic subpeonas square in the face.

Hamdan and Rumsfeld were his biggest potential criminal liabilities - so like any good chess player, he sacrificed those peices essentially placing his primary scapegoat for Abu Ghraib outside the government and off his table.

So just what could it be this time?

Maybe it was the fact that further evidence that U.S. has been spying on innocent Americans - who just happen to lawfully oppose the War and Bush Policy - was revealed on Tuesday.

A Defense Department database devoted to gathering information on potential threats to military facilities and personnel, known as Talon, had 13,000 entries as of a year ago -- including 2,821 reports involving American citizens, according to an internal Pentagon memo to be released today by the American Civil Liberties Union.

The Pentagon memo says an examination of the system led to the deletion of 1,131 reports involving Americans, 186 of which dealt with "anti-military protests or demonstrations in the U.S."

Titled "Review of the TALON Reporting System," the four-page memo produced in February 2006 summarizes some interim results from an inquiry ordered by then-Defense Secretary Donald H. Rumsfeld after disclosure in December 2005 that the system had collected and circulated data on anti-military protests and other peaceful demonstrations.

Pardon me, but when exactly did the Defense Department find a loophole around Posse Commitatus so that they could perform law enforcement on U.S. Soil?

And now that they've chosen to delete all that data, no one will be able to discover exactly where they got their information (NSA, AT&T?) who they were targetting, why, and who else they might have shared their information with (the FBI, local law enforcement, the IRS?)

All of these numerous criminal violations for torture, war crimes and domestic espionage have all stemmed from a demented interpretation of a single clause in the Constitution.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

According to the Bushites this clause gives the President near absolute power to conduct War and Espionage - even against American citizens on American soil. They have told the courts that they have "No business" meddling in National Security. From Gonzales.

"We want to determine whether he understands the inherent limits that make an unelected judiciary inferior to Congress or the president in making policy judgments," Gonzales says in the prepared speech. "That, for example, a judge will never be in the best position to know what is in the national security interests of our country."

Apparently Judge Ann Diggs-Taylor vehement disagreed with this view in her NSA Wiretap ruling.

On August 17, in the first and only ruling by a federal court to strike down the controversial program, the United States District Court for the Eastern District of Michigan ruled that the warrantless wiretapping program is illegal.

"There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent powers’ must derive from that Constitution," Judge Anna Diggs Taylor said in a widely quoted opinion.

Now we have the revelation that Bush had decided to completely reverse himself on not going to the FISA court with his "Terrorist Surveillance Program" - sort of. From Thinkprogress.

Rep. Heather Wilson (R-NM) criticized the Justice Department’s new approach to warrantless domestic spying, charging that it relies "on a blanket, ‘programmatic’ approval of the president’s surveillance program, rather than approval of individual warrants." Administration officials "have convinced a single judge in a secret session, in a nonadversarial session, to issue a court order to cover the president’s terrorism surveillance program," Wilson said.

In any case, the shift yesterday "doesn’t mean the government can’t still gather personal information about Americans without a court order," a USA Today editorial states. "How? Through something called a National Security Letter. Unlike the warrantless wiretapping program, these letters don’t violate any laws, though perhaps they should."

So apparently Judges have no business involving themselves in National Security - unless the Bush administration gets them to do as their told. Interesting.

And let's not forget that in addition to National Security Letters, Bush still has his illegal Data-mining program up and running.

Just in case their attempts to bully Judges doesn't work, Bushites have decided to take another take - Kill the Lawyers.

First there are the ones who would dare to fullfil their obligation and oath to represent "Enemy Combatants".

CULLY STIMSON, DEPUTY ASSISTANT SECRETARY OF DEFENSE: Somebody asked, Who are the lawyers around this country representing detainees down there? And you know what? It‘s shocking. The major law firms in this country, Pillsbury Winthrop, Jenner and Block, Wilmer Cutler Pickering, Covington and Burling here in D.C., Sutherland Asbill Brennan, Paul Weiss Rifkin, Mayer Brown, Weil Gotshal, Pepper Hamilton Venable, Alston and Bird, Perkins Coie, Hunton and Williams, Fulbright Jaworski, all the rest of them, are out there representing detainees.

And I think, quite honestly when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms. And I think that is going to have major play in the next few weeks.

Clearly this is a replay of the sacking Lt. Cmd Swift for winning the Hamdan case. Let's create a deterent for reputable and competent firms to take these cases - cause gee-whiz they just might win them and we can't have that now can we?

Now with the Libby Trial coming fully-online and the Vice-President slated to testi-lie we have Gonzales latest Gambit - knee-cap anyone who might be inclined to come after his boss for perjury (or obstruction, or war crimes) in the same way that so-to-be former US Prosecutor Carol Lam came after Duke Cunningham.

In her tenure leading the Southern District, which covers San Diego and Imperial counties, she prioritized prosecuting political corruption and health care fraud. She oversaw the government's case against Randy "Duke" Cunningham, the former Republican congressman who pleaded guilty to taking $2.4 million in bribes, and her office won corruption convictions of two San Diego city councilmen.

Not exactly the kind of prosecutor the Bush wants to keep around - not while they can circumvent Congress to get their own private hack into that position thanks to Arlen Specter.

Sen. Arlen Specter (R-PA) confirmed that as Judiciary Committee chairman last year he made a last-minute change to a bill that expanded the administration's power to install U.S. Attorneys without Senate approval.

Seizing upon the new authority granted by Congress last March, the White House has pushed out several U.S. Attorneys, and begun to replace them without the Senate's consent.

"I can confirm for you that yes, it was a Specter provision," a spokesperson for the senator wrote to me in an email earlier today, responding to repeated inquiries.

So with the lingering help of the 109th Congress, Bush is doing everything he can to dive for the finish line of his Presidency. He's implemented this surge, while defying the both the ISG and Congres merely to stall for time.

It's all part of his End-Game Strategy, which can be summed up simply - Get out without Getting Impeached and Prosecuted.

And his primary aider and abetter in this remains Alberto Gonzales. Jonathan Turley on Countdown last night.

TURLEY: Well, you know, Gonzalez has always acted more general than attorney in his position. He seems just inherently hostile to the rule of law. This administration for a long time said the problem was with these defendants. They shouldn‘t be allowed in court. And then the problem became the attorneys. And they prevented attorneys from meeting them. Then the problem became habeas corpus. And now the problem is the judges.

What‘s exactly left? I mean, everything is the problem, because they‘re acting outside the rule of law. And so, they‘re really hearing whistles down the track here, one coming from Congress, one coming from the courts, and both saying the same thing, that this president has been routinely and flagrantly violating the constitution that he took an oath to uphold.

That he has, but the game isn't over yet - there are still several moves to be made, subpeona's to be issued - witnesses to grill over a slow fire - and revelations to uncover which are far more likely to drive Bush's approval rating and the resistance to outright impeachment and removal from office ever lower and lower.

And the one thing they don't realize, is that the crazier and more desperate their tactics become - the less likely their are to win this game, especially in front of the Senate Judiciary Commitee (where Gonzales is scheduled to appear today- only under oath this time!)

It ain't over till it's over Mr. Bush, and I despite all this thrashing about by AG Gonzales - it won't end well for you (particularly when you have witless dolts like Dinesh D'Souza on your team)

Now it's our move, let's make it a good one.

(My own personal recommendation would be to Impeach Gonzales First for the total B.S. he's about to unload on Congress over their off-again on-again support for the FISA Court)

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