FBI Blows Smoke on Gitmo

Just ne Day before the swearing in of the new Democratic Congress, the FBI has released a report on detainee treatment at Guantanemo Bay that alleges numerous instances of abuse - but also that none of these instances were performed by FBI personnel.

The FBI Office of General Counsel in September 2004 ordered the "special inquiry" into any FBI participation or observations of a series of alleged incidents at the prison camp for suspected terrorists and al Qaeda sympathizers, but the results were not made public.

The FBI released the documents in response to a Freedom of Information request by the American Civil Liberties Union, but stressed that most of the findings had already been reported elsewhere.

"Note these documents have been vetted by both DoD [Department of Defense] and FBI, and that FBI believes this or substantially similar information has already been released in this litigation," the FBI said.

Here are some excerpts ("W" indicates a Witness, "d" indicate detainee):

on several occasions, witness ("W") saw detainees ("ds") in interrogation rooms chained hand and foot in fetal position to floor w/no chair/ food/water; most urinated or defecated on selves, and were left there 18, 24 hrs or more. Once, the air conditioning was so low that the barefoot d was shaking with cold. Another time, it was off so the unventilated room was over 100 degrees, d was almost unconscious on floor with a pile of hair next to him (he had apparently been pulling it out throughout the night). Another time, it was sweltering hot and loud rap music played - d's hand and foot was chanined and he was in a fetal position on the floor. Upon inquiry, W was told that interrogators [military contractors] ordered this treatment. Took place in Delta Camp

d was kept in darkened cell in Naval Brig at GTMO, then transferred to Camp Delta where he gave no info. Then taken to Camp X-Ray and put in plywood hut. Interrogators yelled and screamed at him. One interrogator squatted over the Koran. Another day a German Shepherd was commended to growl, bark and show his teeth to the prisoner. Subsequently someone laughingly told the W "you have to see this" and took him to an interrogation room where W saw a d with a full beard whose head was wrapped in duct tape

civilian contractor asked W (an FBI SA) to come see something. There was an unknown bearded longhaired d gagged w/duct tape that covered much of his head. SA asked if he had spit at interrogators, and the contractor laughingly replied that d had been chanting the Koran nonstop. No answer to how they planned to remove the duct tape.

Rumors that interrogator bragged about doing lap dance on d, another about making d listen to satanic black metal music for hours then dressing as a Priest and baptizing d to save him - handwritten note says "yes"

W walked into Camp Delta observation room and saw d rubbing his leg due to possibly being in stress position. D was wearing leg irons and handcuffed w/cuffs chained to waist. W was advised the chains were adjusted to force D to stand in "baseball catcher" position. D was being questioned by 2 military officers. D was previously held in brig and questioned for 2 months w/no results. Permission had been granted to use "special interrogation techniques"

After hearing what sounded like "thunder," W saw 2 individuals dressed in BDUs standing and an inmate kneeling on a bloody floor with his forehead on the ground, holding his nose and crying. They said d become upset and threw himself on floor. W heard previously that a female military personnel would wet her hands and touch the ds face as part of their psych-ops to make them feel unclean and upset them. W heard that in an effort to disrupt ds who were praying during interrogation, female intelligence personnel would do this

A detainee brought into interview shack at Camp x-ray appeared to have broken fingers and facial injuries. W was told that d exhibited noncompliance w/prison guard and rapid reaction team was brought in to bring d into compliance. He was in a plywood shack adjacent to "dog cages". D had black eye, facial cuts around nose, and taped fingers. He motioned to guards and said "they"
handwritten note "yes - Do interview so we will have a formal record. I think I know what all he saw."

D says he was beaten unconscious at Camp x-ray. Guards entered cell unprovoked and spat and cursed at him, called him SOB, bastard and crazy. D rolled on stomach to protect self due to recent stomach surgery. Soldier jumped on his back, beat him in the face, then choked him till he passed out. Said he was beating him because he was a Muslim. Female guard also beat him and grabbed his head and beat it into the cell floor. D taken to hospital after.

W heard of technique (not allowed by FBI agents) where a difficult d who would not cooperate would be left in shackles for extended time (12 hrs or more) and the AC turned way low or off. hw notes "environment down - doesn't seem excessive given DoD policy"

Although many of these allegations seem quite serious, the manner in which this information has been released remains extremely questionable. First of all, if you review the pdf of this data, most of the observations made by various FBI personnel were not first hand, and some were merely rumors they had heard (such as the lapdance incident).

The other issue is the timing of this release, it seems more of an effort to distance the FBI from any wrong-doing rather than an effort to truly identify and build a case against any potential criminal activity. In many cases FBI agents were themselves unfamiliar with DoD protocols, therefore their ability to act as informed witnesses to criminal acts extremely diminished. The truth is that many of these type of interrogation techniques were indeed authorized by Donald Rumsfeld.

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.

However, this doesn't make these action legal under the War Crimes Act which prohibits all 'grave breaches of the Geneva Conventions." It could be argued that the WCA did not apply at this point in time since the President, under advice of Attorney General Alberto Gonzales, had declared that enemy combatant detainees were not covered under Geneva - but this view was later reversed by the Hamdan decision.

The question remains - why hasn't the FBI fully investigated these allegations and rumors? Was it because of the direction of the President, Attorney General and SecDef - which condoned these activities? Was it because of the Bybee Memo which maintained that activities such as these were not torture - as long as the subject didn't lose a limb, suffer organ failure or die?

Well - what about the detainees who have died in custody?

From Amnesty International:

It is now known that at least 34 detainees who died in US custody have had their deaths listed by the army as confirmed or suspected criminal homicides. The true number of such deaths may be higher as there is evidence that delays, cover-ups and deficiencies in investigations have hampered the collection of evidence.(5) In several cases, however, substantial evidence has emerged that detainees were tortured to death while under interrogation (revealed, for example, in military autopsy reports, investigation records and recent court testimony). What is even more disturbing is that standard practices as well as interrogation techniques believed to have fallen within officially sanctioned parameters, appear to have played a role in the ill-treatment, as the following cases illustrate.

• Two Afghan detainees, Dilwar and Habibullah died from multiple blunt force injuries inflicted while they were held in an isolation section of Bagram US airbase in December 2002. Army investigative reports later revealed that both men were kept hooded and chained to a ceiling while being kicked and beaten during sustained assaults by military personnel. A soldier who acknowledged inflicting more than 30 consecutive knee strikes to Dilawar (a slight, 22 year old taxi driver) as he stood in shackles, told investigators that the blows were standard operating procedure for uncooperative detainees. An army criminal investigation report said both deaths were caused primarily by severe trauma to the men’s legs, adding that "sleep deprivation at the direction of military intelligence soldiers" was also a "direct contributing factor" in Dilwar’s death.(6) Army medical examiners found the prolonged shackling had also contributed to his death.(7) 7 low-ranking soldiers, charged variously with assault, maltreatment, dereliction of duty and making false statements eventually received sentences ranging from five months’ imprisonment to reprimand, loss of pay and reduction in rank.
  
  
• Abdul Jaleel died in January 2004 in the US Forward Operating Rifles Base in Al Asad, Iraq, after being kicked and beaten during interrogation. He was tied by his hands to the top of a door frame and gagged when he died. The autopsy report recorded death from "blunt force injuries and asphyxia". A senior army official admitted Jameel had been "lifted to his feet by a baton held to his throat" causing a throat injury that "contributed to his death". (8) Military commanders rejected a recommendation by army investigators to prosecute soldiers involved, on the ground that his death had been the "result of a series of lawful applications of force in response to repeated aggression and misconduct by the detainee".(9)

• Major-General Abed Hamad Mowhoush, formerly of the Iraqi army, died during interrogation in the US detention facility in Al Qaim, Baghdad, in November 2003. An autopsy recorded cause of death as asphyxia and smothering due to chest compression. Mowhoush died after being rolled back and forth in a sleeping bag, which was placed over his head and bound with wire, while one of his interrogators sat on his chest. According to testimony in a subsequent court case, use of the sleeping bag was part of an approved "stress position" designed to play upon a detainee’s claustrophobia. It was also reportedly interpreted by officers as falling within the "fear up harsh" tactics that may still be found in military operational manuals. There is evidence that abusive interrogation techniques at the Al Qaim facility were routine and authorized.(10)
  
  The US military initially reported that Mowhoush had died from natural causes. However, several months later, in the wake of the Abu Ghraib scandal, four US soldiers were charged in the death. Only one went to trial and was sentenced to a reprimand, $6,000 forfeiture of pay plus 60 days’ restriction of movement. There is evidence that Mowhoush was subjected to a brutal beating two days before his death by personnel from other agencies, including the CIA, none of whom has been charged.
  
  
• A 27-year-old Iraqi male died while being interrogated by US Navy Seals in April 2004 in Mosul, Iraq. During his confinement he was hooded, flex-cuffed, deprived of sleep and subjected to extreme cold conditions, including the use of cold water on his body and hood. The exact cause of death was "undetermined" although the autopsy stated that hypothermia from wet and cold conditions may have contributed to his death.(11) His treatment included various techniques similar to those authorized by Secretary of Defense Rumsfeld in his April 2003 memorandum including "environmental manipuation (e.g. adjusting temperature)", hooding and sleep deprivation.

It is fair to note that most of these deaths occured either in Afghanistan or Iraq, not Gitmo - but does again make one wonder - where was the FBI investigation of these cases?

It's my feeling that this info-dump by the FBI is not a boon to the War Crimes case against the Bush Administration, it is a red-herring designed to cover the FBI's ass while distracting attention away from extradinary rendition, outsourced torture and how detainees have been treated world-wide under U.S. direction - in direct violation of the War Crimes Act.

Vyan

The Impeachment Case Against George W. Bush - Count 3. War Crimes, Torture, Murder and Conspiracy

Musical Accompaniment for this post by Guns N Roses - "Live and Let Die"

The countdown to the start of the 110th Congress is growing shorter. Although Majority Leader Reid and Speaker Pelosi have put Impeachment "Off the table" - simply because at this point in time most of the American public would not support such a move, and would consider it merely partisan maneuvering as was the Impeachment of William Jefferson Clinton.

On this point I believe they are correct, thus the terms have to modified. Impeachment has to be seen as merely the first step toward the ultimate goal of Removal, Indictment and Prosecution of those who have committed crimes against our Constitution. Thus I present Count 3 in my multipart series on why George W. Bush must be Impeached.

The Impeachment Case Against George W. Bush - Count 3 : War Crimes, Conspiracy, Torture and Murder. George W. Bush, Dick Cheney, Alberto Gonzales and Donald Rumsfeld did commit a series of Capital Crimes with malice aforethought, including grave breaches in the Geneva Conventions and the Laws of War - actions which have led to numerous counts of maltreatment of prisoners and torture up to and including over multiple murders under color of authority

Exhibit A: The Gonzales Memo Following the attacks on the World Trade Center and Pentagon on 9/11 - America moved into a War Footing against Al-Qeada and Afghanistan. Congress passed the Authoritzation to Use Military Force, and our government began to grapple with the issue of how to handle captured prisoners and terrorist suspects.

On January 24, 2002 Alberto wrote a Memo (PDF) addressing this subject.

"It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act]," Gonzales wrote. The best way to guard against such "unwarranted charges," the White House lawyer concluded, would be for President Bush to stick to his decision--then being strongly challenged by Secretary of State Powell-- to exempt the treatment of captured Al Qaeda and Taliban fighters from Geneva convention provisions.

"Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution," Gonzales wrote.

Although many at the time claimed the the exception of Taliban and Al-Qeada fighters from Geneva was done because neither were signatories of Geneva, the truth is very different. First of all the fact that they aren't signatories is irrelevant - We Are Signatories and as such we are required to abide by Geneva.

Geneva Article 2

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

But as was shown from his memo Gonzales had a different concern altogether. He was worried that some "wacky" prosecutor might determine that the Administration had violated 18 USC 2441 - the War Crimes Act - which states.

(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(c) Definition.— As used in this section the term "war crime" means any conduct—

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

The Conventions lay out specifcally how Prisoners of War are to be identified and defined - and it's fair to say that the fact that Al-Qaeda and Taliban fighters do not wear a uniform or have specific insignia exempts them from that category.

They can not be considered Prisoners of War under Geneva, although the definition of an armed militia under Article 4 comes very close.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

And even if the lack of a "distinctive sign" causes the Militia defintion to not apply to Al-Qeada or the Taliban as alleged by Gonzales - Article 5 settles the matter.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

And just what are those protections? The following.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

So in summary, Gonzales letter shows that he was aware of the President's deliberate intention to subject captured al-Qeada and Taliban members to cruel treatment, torture, humiliation and degradation and restrict their access to the courts. All of which are clearly grave breaches of Geneva and punishable by fines, life imprisonment and the death penalty under United States Federal Law.

This memo effectively laid the groundwork for all that was to follow - which was a series of deliberate criminal acts. This memo is proof a Conspiracy to Commit Torture. His attempts to deflect and distract from these crimes by calling some of the minor provisions of Geneva "quaint" are as transparent as they are pathetic.

Exhibit B: The Bybee Memo. Clearly still concerned that the Presidents determination to exclude the entire newly created classification of "Enemy Combatant" from Geneva might not actually stand up to any reasonable judicial scrutiny - ha, imagine that - in August of 2002 Gonzales requested a memo from the DOJ's Office of Legal Counsel to re-define torture so as to ensure it's availability to U.S. interrogators while still remaining under the radar of Geneva, 2441 and also 2340.

We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent to intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. We conclude that the mental harm also must result from one of the predicate acts listed in the statute, namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual’s personality; or threatening to do any of these things to a third party.

Section 2340 of U.S. Law States:

(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

What we have here is a situation where those who would normally be the Prosecutors in a case of War Crimes or Torture have been requested by the White House to Act as Defense Counsel in order to help them avoid possible prosecution for their intended crimes. It's the equivelent of allowing a Jaywalker to redraw the crosswalk lines in the middle of the street - as he's crossing it. By claiming that torture isn't "torture" until the subject either losses a limb, suffers organ failure and dies - then practically anything that leaves the person alive and breathing with all of their fingers and toes -- would not be torture under the legal definition.

Common sense tells us a different story.

And another problem here is that the White House and the Prosecutors do not determine what is an isn't the law - Congress and Judges do. (Although Jay Bybee has now been appointed as a Federal Appeals Judge (In the 9th Circuit - the one which reviews the DC Court), he wasn't at the time that he headed the OLC and therefore his opinions then are not "opinions of the court" in the legal sense.)

Exhibit C: The Rumsfeld Papers Following the Gonzales and Bybee Memos, Rumsfeld issued his own memo in December of 2002 in response to a request from "additional techniques beyond those in the field manual" from soldiers in Guantanemo Bay. From the the ACLU's Torture Timeline

Rumsfeld prescribes new interrogation policy for Guantanamo, authorizing "stress positions," hooding, 20-hour interrogations, removal of clothing, exploiting phobias to induce stress (e.g., fear of dogs), prolonged isolation, sensory deprivation, and forced grooming. These techniques soon spread to Afghanistan and later to Iraq.

Later the Pentagon convened a woking group which began to apply the re-definition of torture to detainee treatment in March of 2003. From the Wapo.

Another memorandum, dated March 6, 2003, from a Defense Department working group convened by Defense Secretary Donald H. Rumsfeld to come up with new interrogation guidelines for detainees at Guantanamo Bay, Cuba, incorporated much, but not all, of the legal thinking from the OLC memo. The Wall Street Journal first published the March memo.

34 new techniques were recommended by the Working group, Rumsfeld ultimately approved the use of 24 of them including isolation, "inducing fear", false flag and stress positions.

The paper trail from the White House to the Pentagon and eventually to Guantanamo Bay, Bagram AFB in Afghanistan and Abu Ghraib is direct, obvious and miles upon miles wide.

And the severity of the abuse is far deeper than what has be hinted at by the Abu Ghraib Scandal.

WASHINGTON — Pentagon documents released Monday disclosed that Iraqi prisoners had lodged dozens of abuse complaints against U.S. and Iraqi personnel who guarded them at a little-known palace in Baghdad converted to a U.S. prison. Among the allegations was that guards had sodomized a disabled man and killed his brother, whose dying body was tossed into a cell, atop his sister.

The documents, obtained in a lawsuit against the federal government by the American Civil Liberties Union, suggest for the first time that numerous detainees were abused at Adhamiya Palace, one of Saddam Hussein's villas in eastern Baghdad that was used by his son Uday. Previous cases of abuse of Iraqi prisoners have focused mainly on Abu Ghraib prison.

A government contractor who was interviewed by U.S. investigators said that as many as 90 incidents of possible abuse took place at the palace, but only a few were detailed in the hundreds of pages of documents released Monday.

The documents also touch on alleged abuses in other U.S.-run lockups in Iraq. The papers include investigative reports linking some abuses to ultrasecret Pentagon counter-terrorism units.

Since the start of the Iraq War over 100 detainees have died in custody. The circumstances for these deaths have varied wide, some died of natural causes, other during riots or other acts of violence - but a few - were killed as a result of abuse, some died while being interrogated (which would indicate a clear violation of 2441 and 2340 even with the Gonzales and Bybee "re-interpretations")

The Pentagon has never provided comprehensive information on how many prisoners taken during the wars in Iraq and Afghanistan have died. The 108 figure, based on information supplied by Army, Navy and other government officials, includes deaths attributed to natural causes.

To human rights groups, the deaths form a clear pattern.

"Despite the military's own reports of deaths and abuses of detainees in U.S. custody, it is astonishing that our government can still pretend that what is happening is the work of a few rogue soldiers," said ACLU Executive Director Anthony D. Romero. "No one at the highest levels of our government has yet been held accountable for the torture and abuse, and that is unacceptable."

...

In Iraq, the military is currently holding around 8,900 people at its two largest prisons, Abu Ghraib and Camp Bucca.

At least two prisoners died during interrogation, in incidents that raise the question of torture. Human rights groups say there are others:

_ Manadel al-Jamadi, a suspect in the bombing of a Red Cross facility in Baghdad, died Nov. 4, 2003, while hanging by his wrists in a shower room at Abu Ghraib prison. Nine SEALs and one sailor have been accused of abusing al-Jamadi and others in Iraq. The CIA and Justice Department are also investigating the death.

_ Four Fort Carson, Colo., soldiers, including three in military intelligence, are charged with murder for the death of an Iraqi major general who died in November 2003. The CIA has also acknowledged that one of its officers may have been involved and referred the case to the Justice Department for investigation.

According to documents gahered by the ACLU, coercive interrogations have led to the deaths of detainees at Bagram AFB in Afghanistan and the Red Cross indicates that 70%-90% of those held at Abu Ghraib are being held by mistake. The U.S. has paid bounties for terrorist suspects which to thier being sold into captivity and lining holds of Bagram and Gitmo with even more innocent persons.

But that's not the worst of it, the real problem is the question of exactly what has happened to those detainees who have literally disappeared.

Exhibit D: The Ghost Detainees As the number of detainees began to mount, certain "high value targets" began to vanish. Hidden from the Red Cross, these detainees were taken to Secret Prison Installations under the direct orders and approval of President George W. Bush - a clear violating of multiple international laws.

According to Human Rights Watch some of those Ghost Detainees included:

1. Ibn al-Shaikh al-Libi (Libya)

2. Abu Zubayda, a.k.a. Zubeida, Zain al-`Abidin Muhammad Husain, `Abd al-Hadi al-Wahab (Palestinian)

3. Omar al-Faruq (Kuwait)

4. Abu Zubair al-Haili, a.k.a. Fawzi Saad al-`Obaydi (Saudi Arabia)

5. Ramzi bin al-Shibh (Yemen)

6. Abd al-Rahim al-Nashiri, a.k.a. Abu Bilal al-Makki, Abdul Rahman Husain al-Nashari, formerly Muhammad Omar al-Harazi (Saudi Arabia or Yemen—Born in Mecca, Saudi Arabia)

7. Mustafa al-Hawsawi (Saudi Arabia)

8. Khalid Shaikh Muhammad, a.k.a. Shaikh Muhammad, Ashraf Ref`at Nabith Henin, Khalid `Abd al-Wadud, Salem `Ali, Fahd bin Abdullah bin Khalid (Kuwait)

9. Waleed Muhammad bin Attash, a.k.a. Tawfiq ibn Attash, Tawfiq Attash Khallad (Yemen)

10. Adil al-Jazeeri (Algeria)

11. Hambali, a.k.a. Riduan Isamuddin (Indonesia)

Bush has argued that the techniques used to interrogate Zubaydah we're not "torture" - but then again the only proof of that is merely that Zubaydah apparently survived the process under "Bybee Rules" - and that they were effective in helping capture Khalid Shaikh Muhammad.

Too bad that simply isn't true as Ron Suskind has revealed.

Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be. CIA and FBI analysts, poring over a diary he kept for more than a decade, found entries "in the voice of three people: Hani 1, Hani 2, and Hani 3" -- a boy, a young man and a middle-aged alter ego. All three recorded in numbing detail "what people ate, or wore, or trifling things they said." Dan Coleman, then the FBI's top al-Qaeda analyst, told a senior bureau official, "This guy is insane, certifiable, split personality."

Abu Zubaydah also appeared to know nothing about terrorist operations; rather, he was al-Qaeda's go-to guy for minor logistics -- travel for wives and children and the like. That judgment was "echoed at the top of CIA and was, of course, briefed to the President and Vice President," Suskind writes. And yet somehow, in a speech delivered two weeks later, President Bush portrayed Abu Zubaydah as "one of the top operatives plotting and planning death and destruction on the United States." And over the months to come, under White House and Justice Department direction, the CIA would make him its first test subject for harsh interrogation techniques.

How Zudaybah was interrogated was elaborated on by Gerald Posner.

Posner elaborates in startling detail how U.S. interrogators used drugs—an unnamed "quick-on, quick-off" painkiller and Sodium Pentothal, the old movie truth serum—in a chemical version of reward and punishment to make Zubaydah talk. When questioning stalled, according to Posner, cia men flew Zubaydah to an Afghan complex fitted out as a fake Saudi jail chamber, where "two Arab-Americans, now with Special Forces," pretending to be Saudi inquisitors, used drugs and threats to scare him into more confessions.

Zudaybah eventually provided the names of several members of the Saudi Royal family who had alleged ties to Bin Laden. Within weeks all of people had died under mysterious circumstances, preventing them from being questioned by U.S. authorities permenently.

Whether the information provided by Zubaydah was accurate or simply disinformation design to allow him to escape torture remains unclear. But it's clear that other Ghost Detainees wuch as Ibn al-Shaikh al-Libi (who provided many of the incorrect claims of Iraqi WMD) have been proven to be liars.

By voiding the Geneva requirement for judicial review of detainees and their status the likelyhood that mistaken identity and/or innocent persons may be caught in the net of anti-terrorism increases dramatically.

13 CIA Agents have been ordered to be arrested in Italy for the kidnapping and rendition of Abu Omar (aka Osama Moustafa Hassan Nasr) an Egyptian who was taken to Cairo and tortured for two years - except that he was the wrong person.

As was Khalid Masri, who was kidnapped in the Balkans and flown to Afghanistan and held for four months. German officials have been investigating.

And so was Maher Arar, Canadian National whose name was mistakenly included on a terrrorist watch list as he attempted to change planes at Kennedy International Airport, where he was detained - deported to Syria and tortured.

Although it could be argued that the actual torture was not conducted by U.S. personnel in these cases, it's clear that these persons would not have been subjected to these conditions if not for U.S. actions and premeditation. These are acts of Conspiracy and subject to the same pentalty as those who actually may have performed the torture under U.S. Law.

Exhibit E: The Hamdan Decision. Although Gonzales and Bybee have attempted to provide legal cover for these actions, the entire house of cards they had erected came crashing down in a very large thud with the delivery of the Hamdan Decision which ruled that the Geneva Conventions do indeed apply to "Enemy Combatants". This decision made everything they had done prior to that point, a potential War Crime.

Article 3 of the Geneva Convention (III)Relative to the Treatment of Prisoners of War,Aug. 12,1949, [1955 ] 6 U..S.T.3316,3318,T.I.A.S.No.3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law. See id.,at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered "war crimes," punishable as federal offenses,when committed by or against United States nationals and military personnel. See 18 U.S.C.§2441. There should be no doubt,then,that Common Article 3 is part of the law of war as that term is used in §821.

Hamdan is entitled to the full protections of the Third Geneva Convention until adjudged, in compliance with that treaty, not to be a prisoner of war; and that, whether or not Hamdan is properly classified as a prisoner of war, the military commission convened to try him was established in violation of both the UCMJ and Common Article 3 of the Third Geneva Convention because it had the power to convict based onevidence the accused would never see or hear.

Realizing this the CIA Interrogators actually Went on Strike.

The Bush administration had to empty its secret prisons and transfer terror suspects to the military-run detention centre at Guantánamo this month in part because CIA interrogators had refused to carry out further interrogations and run the secret facilities, according to former CIA officials and people close to the programme.

The Administration reacted strongly to this decision and urged the passage of the Military Commissions Act. Much of the discussion of this act has surrounded it's neutering of Habeas Corpus and it's "re-interpretation of Geneva", but of even greater danger is the fact that this law amended The War Crimes and Torture Acts to apply the Bybee Standard. 2441 and 2340 have been updated as follows:

‘‘(1) PROHIBITED CONDUCT.—In subsection (c)(3), the term
‘grave breach of common Article 3’ means any conduct (such
conduct constituting a grave breach of common Article 3 of
the international conventions done at Geneva August 12, 1949), as follows:
‘‘(A) TORTURE.—The act of a person who commits, or
conspires or attempts to commit, an act specifically
intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful
sanctions) upon another person within his custody or phys-ical control for the purpose of obtaining information or
a confession, punishment, intimidation, coercion, or any
reason based on discrimination of any kind.
‘‘(B) CRUEL OR INHUMAN TREATMENT.—The act of a
person who commits, or conspires or attempts to commit,
an act intended to inflict severe or serious physical or
mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical
abuse, upon another within his custody or control.
‘‘(C) PERFORMING BIOLOGICAL EXPERIMENTS.—The act
of a person who subjects, or conspires or attempts to sub-ject, one or more persons within his custody or physical
control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body
or health of such person or persons.
‘‘(D) MURDER.—The act of a person who intentionally
kills, or conspires or attempts to kill, or kills whether
intentionally or unintentionally in the course of committing
any other offense under this subsection, one or more per-sons
taking no active part in the hostilities, including those
placed out of combat by sickness, wounds, detention, or
any other cause.

...

‘‘(2) DEFINITIONS.—In the case of an offense under sub-section
(a) by reason of subsection (c)(3)—
‘‘(A) the term ‘severe mental pain or suffering’ shall
be applied for purposes of paragraphs (1)(A) and (1)(B)
in accordance with the meaning given that term in section
2340(2) of this title;
‘‘(B) the term ‘serious bodily injury’ shall be applied
for purposes of paragraph (1)(F) in accordance with the
meaning given that term in section 113(b)(2) of this title;
‘‘(C) the term ‘sexual contact’ shall be applied for pur-poses
of paragraph (1)(G) in accordance with the meaning
given that term in section 2246(3) of this title;
‘‘(D) the term ‘serious physical pain or suffering’ shall
be applied for purposes of paragraph (1)(B) as meaning
bodily injury that involves—
‘‘(i) a substantial risk of death;
‘‘(ii) extreme physical pain;
‘‘(iii) a burn or physical disfigurement of a serious
nature (other than cuts, abrasions, or bruises); or
‘‘(iv) significant loss or impairment of the function
of a bodily member, organ, or mental faculty;

A fair reading of this would conclude that coercive interrogation that takes the victim literally to the edge of death - but allows for his being brought back in a manner that doesn't disfigure or maim them - would be perfectly ok. You could even induce death itself using chemicals and then repeatedly revive the subject using a CPR and a defribulator -- and it wouldn't be "torture" in Bushworld. Fortunately most of the rest of us, we don't live in that deluded fantasy land.

On the whole the Administration has done an incredible job of wrangling the law to produce the result they wish. Torture isn't torture. Significant bodily harm is no harm at all. A little dunk in the water is a "No Brainer".

In the wake of the Abu Ghraib scandal Congress lobbied for the passage of the Detainee Treatment Act of 2005, yet that act contains a fatal flaw - the Graham-Levin Amendment which blocks the detainees from access to the court where they can lodge abuse complaints. What is the point of "prohibiting torture" if you've also prohibited the tortured from complaining about it? Talk about "Don't ask - don't tell".

As the Hamdan decision made clear - The Bush Adminstration has repeatedly and deliberately violated the Geneva Conventions, they have committed War Crimes, Torture and Conspiracy under U.S. Law and grossly violated the 8th Amendment, but rather than correcting those actions they have - with the aid and complicity of the Repubilcan led 109th Congress - instead created even more clearly unconstitutional law such as the Detainee Treatment Act and Military Commission Act which are clearly unlikely to withstand any serious court challenge.

These actions have directly contributed to the abuse of hundreds of detainees, both innocent and not-so-innocent, including kidnapping and even murder. The Administration's Torture double-speak and permissive "anything-goes" attitude may even be traced to the tragedies of Haditha where dozens innocent Iraqi civilians were murder and Mahmoudiya where a teen age girl who was raped and burned along with her entire family - by U.S. Soldiers.

And even with all this information they've gathered using these techniques is highly suspect and may very well have led us directly into a false and unneccesary war with Iraq (see Count 1). The insurgency continues to rage undeterred. Terrorism has increased rather than ben reduced. This policy is a not only crime, it is a failure.

But these legal maneuvers have done nothing but delay the inevitable.

Although there have been multiple court mashalls and prosecutions of low level soldiers - and there should be - these crimes must be brought into account and ended at the source, and the only way to accomplish this is to Impeach, Remove, Indict and Prosecute George W. Bush, Dick Cheney, Alberto Gonzales and Donald Rumsfled exactly as Amnesty International in May 2005.

This policy must be stopped permenently - the American public must be shown that there is no other reasonable choice.

Vyan

The Impeachment Case Against George W. Bush: Count 2 - Domestic Espionage

Musical Accompaniment for this post by John Lennon - "Nobody Told Me"!

As we look forward into the 110th Congress and beyond, it becomes more and more critical that we envision the country as would all, Democrat, Republican, Liberal, Conservative and Independent would like it to be.

Beyond this issue of party affiliation is the issue of our national character.

What is America?

Is it the land of the free, or the home of the scared? This will be the subject of Count 2 from my multipart series on Why George W. Bush must be Impeached.

The Impeachment Case Against George W. Bush - Count 2 : Domestic Espionage. President George W. Bush did, with malice aforethought, deceive the World and American people in to secretly conduct Espionage Against Millions of Americans, repeatedly violating their 1st and 4th Amendment Rights on as well as multiple Federal Laws.

This is a case which has been well discussed in the year since it was originally revealed that the Bush Administration had ordered the NSA to record tens of thousands of phone calls made by "known al-Qaeda affiliates" abroad to the U.S. all without a single warrant.

Before that became known one year ago the President when discussion the Patriot Act stated in April of 2004 that:

Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

To be fair, there is a difference between what has been authorized by the Congress via the Patriot act - and the authority the President Bush has claimed is inherently his in order to conduct this espionage.

The Patriot Act brought down the wall between law enforment and intelligence gathering. The importance of that wall and the distinction between how Law Enforment Agencies such as the FBI handle their cases and how the CIA and Spies handle counter-espionage and counter-terrorism is vital.

Law enforcement is one thing, Espionage is another. Rarely is Espionage or counter-espionage entirely lawful.

Most Americans would agree that the President has the authority and a duty to perform both counter-terrorism and counter-espionage, and that while doing so our own spies are likely to violate the laws of what ever country that may be in at the time - however when it comes to such actions within the U.S. itself the requirement has been that the President must also abide by the Laws of the U.S..

In this instance the law is very clear. Under FISA and 18 USC 2551, just as the President claimed in 2004, no wiretaps of U.S. citizens or residents may be performed without a court order.

It's too bad that even though the Patriot Act modified FISA to allow for the warrant to be issued three days after surveillance has already begun - Bush still hasn't abided by the law.

Unfortunately that isn't all. Not only has the President secretly authorized the illegal tapping of domestic phone calls, he has has also authorized the tracking of purely domestic calls and emails as part of an additional program to Datamine the personal contact information of tens of millions of Americans. This violates 18 USC 3121 which prohibits use of a "Pen and trap" devices without a warrant and 18 USC 2702 which prohibits companies such as AT&T from voluanteering customer information to the government without a warrant.

His authorization of Warrantless Electronic Surveillance has in due course has led to Warrantless Physical Searches, and based on the hints provided by NSA Whistle-blower Russel Tice - that is only the "Tip of the Iceberg".

A former intelligence officer for the National Security Agency said Thursday he plans to tell Senate staffers next week that unlawful activity occurred at the agency under the supervision of Gen. Michael Hayden beyond what has been publicly reported, while hinting that it might have involved the illegal use of space-based satellites and systems to spy on U.S. citizens. ...

[Tice] said he plans to tell the committee staffers the NSA conducted illegal and unconstitutional surveillance of U.S. citizens while he was there with the knowledge of Hayden. ... "I think the people I talk to next week are going to be shocked when I tell them what I have to tell them. It’s pretty hard to believe," Tice said. "I hope that they’ll clean up the abuses and have some oversight into these programs, which doesn’t exist right now."

So far the details of Tice's meeting with Congress - which incidentally took place on the same day a Gen Micheal Hayden's confirmation to become CIA Director - have not been revealed due to National Security Restrictions.

Still Sen Russ Feingold along with Congressman John Conyers have both called for Bush to be Censured for the NSA Program. Senator Jay Rockefeller, the incoming head of the powerful Intelligence Commitee wrote a letter to the Vice President about the program in 2003.

Dear Mr. Vice President,

I am writing to reiterate my concern regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA, and Chairman Roberts and our House Intelligence Committee counterparts.

Clearly the activities we discussed raise profound oversight issues. As you know, I am neither a technician or an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

As I reflected on the meeting today, and the future we face, John Poindexter's TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveiliance.

Without more information and the ability to draw on any independent legal or techical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.

I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication.

I appreciate your consideration of my views.

Most respectfully,

Jay Rockefeller

Although selected members of Congress (The "Gang of Eight") were indeed briefed on this program, they were also required by Federal Law not to disclose or discuss it with anyone without the proper security clearances - including their own staff, other members of congress or lawyers who may have been able to give them a better understanding of the legal issues. And they certainly couldn't vote or to authorize or amend the program in an open hearing.

Since the writing of that letter a Federal Judge has ordered that the NSA program be shutdown immediately and ruled that it is both illegal and unconstitutional - a decision which is currently pending appeal.

Judge Taylor found that the program violated the Foreign Intelligence Surveillance Act (FISA), which was passed in the 1970s to curb executive abuses that included spying on civil rights leaders and Members of Congress. FISA requires a warrant before the executive can wiretap Americans. Judge Taylor also found that the program violated the separation of powers because it circumvented Congress’s power to regulate presidential authority, and that it violated Americans' rights to free speech and privacy under the First and Fourth Amendments of the Constitution. The government appealed the decision to the Sixth Circuit Court of Appeals, which granted a stay of the decision pending appeal.

In response Attorney General and Former White House Counsel Alberto Gonzales has argued that Judge Taylor's view of "Freedom" and "Upholding the Constitution" - "is one utterly divorced from civic responsibility - is superficial and is itself a grave threat to the liberty and security of the American people."

An investigation by the DOJ's Office of Personal responsibility was terminated earlier this year simply because the President refused to grant the neccesary security clearances, yet at the same time he did grant the clearances needed to defend against the ACLU's (so far successful) lawsuit.

I think most people would consider that action to be Obstruction of Justice!

Just as Gonzales words - which are quite a departure from their normal refusal to comment on "ongoing investigations" - would appear to be an attempt to influence and intimidate a Federal Judge. Not exactly the acts of innocent men.

Never-the-less a second investigation by the DOJ has recently been spawned, but not into the legallity of the program itself - the purpose of this one is to determine how the information mined by the NSA has been used.

From what we've already seen based on information divulged by the FBI to the New York Times, the answer to that question is "not very well"...

WASHINGTON, Jan. 16 - In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month.

But virtually all of them, current and former officials say, led to dead ends or innocent Americans.

F.B.I. officials repeatedly complained to the spy agency, which was collecting much of the data by eavesdropping on some Americans' international communications and conducting computer searches of foreign-related phone and Internet traffic, that the unfiltered information was swamping investigators. Some F.B.I. officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans' privacy.

...

"We'd chase a number, find it's a school teacher with no indication they've ever been involved in international terrorism - case closed," said one former FBI official, who was aware of the program and the data it generated for the bureau. "After you get a thousand numbers and not one is turning up anything, you get some frustration."

The law enforcement and counterterrorism officials said the program had uncovered no active Qaeda networks inside the United States planning attacks. "There were no imminent plots - not inside the United States," the former F.B.I. official said.

Putting aside questions of the effectiveness and efficiency of this program - it is quite clear that it is illegal, yet Bush and his supporters continue to clamor that it should be retained argueing that Presidential authority in Wartime apparently trumps not just the Law, but also Congress and the Courts.

However, they rarely hesitate to cite Congress and Courts when it suits their purposes.

The President has the chief responsibility under the Constitution to protect America from attack, and the Constitution gives the President the authority necessary to fulfill that solemn responsibility. The President has made clear that he will exercise all authority available to him, consistent with the Constitution, to protect the people
of the United States.

In the specific context of the current armed conflict with al Qaeda and related terrorist organizations, Congress by statute has confirmed and supplemented the President’s recognized authority under Article II of the Constitution to conduct such warrantless surveillance to prevent further catastrophic attacks on the homeland.

...

The Supreme Court’s interpretation of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), confirms that Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the President’s use of all traditional and accepted incidents of force in this current military conflict—including warrantless electronic surveillance to intercept enemy communications both at home and abroad.

Even Lindsey Graham has found that one hard to swallow. "I don't know any legal basis" for Bush's secret spying program. So has Newt Gingrich - Bush's program "Can't be defended by Reasonable people".

Of course, whoever said that Gonzales and DOJ under Bush were "reasonable"? Their claim that "Congress by statute has confirmed and supplemented the President's recognized authority" comes from the passage of the 2001 Use of Force Resolution against al-Qaeda and Afghanistan.

Law Professor Jordon Praust on that interpretation of the AUMF.

George W. Bush and US Attorney General Alberto Gonzales claim that domestic spying in manifest violation of the Foreign Intelligence Surveillance Act (FISA) was authorized by Congress in broad language in the 2001 Authorization for Use of Military Force (AUMF) regarding persons responsible for the 9/11 attacks. Similar claims have been made in a December 22 letter from Assistant Attorney General William Moschella to the leaders of the House and Senate Intelligence Committees. The claims are patently false.

The DOJ claims that the Hamdi decision supports their view - however what was actually said in Hamdi over the issue of weather the AUMF authorized the President to indefinitely detain U.S. Citizens without Judicial review was...

JUSTICE O ’CONNOR,joined by THE CHIEF JUSTICE,JUSTICE KENNEDY,and JUSTICE BREYER,concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.Pp.14 –15.

A neutral decision maker - like the FISA Court perhaps? Harvard Law Professor Laurence Tribe concurs.

After all, the collection of "signals intelligence" about our enemies abroad is no less an accepted incident of war than detaining the captured enemy -- just as signals intelligence of foreign agents (including some going to and from the United States) has been accepted as an inherent power of the President even in the absence of war. Surely, then, now that Al Qaeda has launched a war against us, and now that Congress has responded with the functional equivalent of a declaration of war in the AUMF, even the entirely innocent American citizen in Chicago or Cleveland whose phone conversation with a member of an Al Qaeda-supportive organization happens to be ensnared by the eavesdropping being undertaken by the NSA cannot be heard to complain that no statute specifically authorized the Executive to capture her telephone communications and e-mails as such. Invasion of that citizen's privacy was, alas, but one of war's sad side effects -- a species of collateral damage.

The technical legal term for that, I believe, is poppycock.

The truth is that the NSA and President didn't abide by FISA because they knew they'd lose. Via Glenn Greenwald.

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

Let me reinterate - not going to the FISA court and then doing the surveillance or other information gathering anyway - is a Crime.

The President has admitted to committing this crime - Millions of Times.

The endgame arguement for Bush's supporters is essentially the view that the Law does not apply during War. They note that historically this has been true, that Lincoln suspended Habeas Corpus during the Civil War (although this suspension was subsequently overturned). President Franklin Roosevelt order all overseas communications tapped during WWII (he also requested that U.S. Citizen be exempted from this surveillance). President Truman authorized the Wiretaps of people who "held radical views" during the Red Scare of the 50's.

None of these actions were ever challenged in court as they were kept from the public behind the veil of "National Security". But eventually they began to peak out in progrsm such as COINTELPRO.

[Attorney General John] Mitchell held that the Justice Department was free to tap without a warrant any political dissenters it deemed threats to national security. Given how many Americans were organizing to oppose various government policies in 1969, Mitchell's reading promised to sanction the surveillance of millions of people who agitated against the Vietnam War, championed black radicalism, or engaged in campus protests.

This action led to the warrentless wiretaps or Dr. Martin Luther King Jr and Malcolm X for their anti-war views, which eventually was followed by the 1967 Katz case where it was determined that "government taps did indeed constitute an unconstitutional search and seizure.

But it didn't stop there as increasing violence in the midst of the Civil Rights movement fostered the Omnibus Crime Control Act of 1968 which attempted to undermine Katz, which in turn led back to the Supreme Court and the "Keith case of 1972", where the Supreme Court ruled thusly.

MR. JUSTICE POWELL delivered the opinion of the Court.

The issue before us is an important one for the people of our country and their Government. It involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval. Successive Presidents for more than one-quarter of a century have authorized such surveillance in varying degrees, 1 without guidance from the Congress or a definitive decision of this Court. This case brings the issue here for the first time. Its resolution is a matter of national concern, requiring sensitivity both to the Government's right to protect itself from unlawful subversion and attack and to the citizen's right to be secure in his privacy against unreasonable Government intrusion.

...

We begin the inquiry by noting that the President of the United States has the fundamental duty, under Art. II, 1, of the Constitution, to "preserve, protect and defend the Constitution of the United States." Implicit in that duty is the power to protect our Government against those who would subvert or overthrow it by unlawful means. In the discharge of this duty, the President - through the Attorney General - may find it necessary to employ electronic surveillance to obtain intelligence information on the plans of those who plot unlawful acts against the Government. 9 The use of such surveillance in internal security cases has been sanctioned more or less continuously by various Presidents and Attorneys General since July 1946.

...

The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.

These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive [407 U.S. 297, 317] Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks.

Later President Nixon's paranoia and lust for power fomented the break-in at Democratic National Headquaters at the Watergate Hotel and the illegal taping of the psychiatrist of Daniel Ellsberg, a State Dept Official who had been the prime suspect for the leaking of the Pentagon Papers. This led to the Church Commission which in turn led to the creation of FISA Court to provide a judical check on the use of executive power regarding domestic surveillance.

In the wake of Watergate, Nixon resigned in disgrace to avoid Impeachment - by contrast President Bush with his Domestic Espionage Progarm has attempted to turn 40-years of Legal Jurisprudence on it's head, and has succeeded in leaving Nixon's Crimes in his dust.

What may be far worse than the pure criminal and unconstitutional actions of this President, may be the increased risk from actual foreign agents he has created with these programs.

• We have only a finite number of FBI Agents, and the more time and energy they spend on weak and bogus NSA leads involving Quakers, Peace Activists and Members of Greenpeace - the less time they have pursue genuine terrorists.

• Evidence gathered illegally is inadmissable in court, and so is any addition information which may have been discovered as the result of an illegal act. This is called the Fruits of the Poison Tree doctrine and U.S. Federal Prosecutors as well as Defense attorneys have already readied themselves for such challenges to battles over evidence. As a result the President has championed the implementation of Military Commission for the trial of terrorist subjects where classified evidence may be introduced while concealing the source and methods used to gather that evidence. A handy option to have if your methods happen to be completely illegal.

So not only does this program hinder our ability to catch real terrorists, we may not even be able to legally prosecute those we do catch. Nice.

History under the collective weight of Katz, Keith, FISA and Hamdi does not support the arguements put forth by President Bush and his supports, nor do the facts, or the Constitution.

Nixon was rightly run out of office on a rail for his attempts to attempt to destroy our freedom by unilaterally invading the privacy of anyone he wanted without just cause.
President Bush has done the same, and gone far further with the aid of Supercomputers, Satellites and Internet technology.

This is Watergate Time 10,000.

Just as the actions of President Roosevelt were escalated by Senate Joe McCarthy during President Truman's term, and again under Johnson, and again under Nixon - the unlawful and unconstitutional actions of this President will do nothing except escalate under the next President - and the next, and the next.

For that reason it must be stopped - now. President Bush must be held to account for his actions or else the very freedom that our society is ment to bring into reality will likely crumble and vanish. It not really a matter of whether Bush has grossly misused his authority, which in all likelyhood he has, the issue remains - how could such unlimited power be abused in the future?

President Bush may or may not have decided to use the resources of the NSA to perform social network analysis to indentify highly influential persons who oppose his policies, have the FBI investigate them and then shared the information with state and local agencies as well as selected "private concerns" where it could be used to target political activitists, journalist and members of congress for harrisment or political operations in the same way that he has used the Faith Based Initiatives to political manipulate our Churches - but we shouldn't even have to ask the question, should we?

As Justice Powell concluded in Keith.

Thus, we conclude that the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values.

This isn't just a matter of what is or isn't technically legal as cases such as Keith did not specifically address this issue of the Presidents power's of Foreign Surveillance only surveillance of Americans - certainly that final question might not be resolved until Judge Taylor's decision eventually reaches the Supreme Court - however Impeachment is not a legal issue, it is a Consitutional one that asks and answers the question, "Has the person betrayed his oath of office and brought the fabric of our Democracy into peril?"

In the case of President George W. Bush - the answer is clearly "Yes, he has".

Vyan

Justice launches Probe of NSA Wiretap Program

From Yahoo News.

WASHINGTON - The Justice Department has begun an internal investigation into its handling of information gathered in the government's domestic spying program.

Normally this would be a good thing, but apparantly - it's a Tiger with no Teeth.

However, Democrats criticized the review as not going far enough to determine whether the program violates federal law.

So just what is going on here?

To some extent the question of legality of the program has already been answered by Federal Judge Anna Diggs Taylor.

Judge Taylor found that the program violated the Foreign Intelligence Surveillance Act (FISA), which was passed in the 1970s to curb executive abuses that included spying on civil rights leaders and Members of Congress. FISA requires a warrant before the executive can wiretap Americans. Judge Taylor also found that the program violated the separation of powers because it circumvented Congress’s power to regulate presidential authority, and that it violated Americans' rights to free speech and privacy under the First and Fourth Amendments of the Constitution. The government appealed the decision to the Sixth Circuit Court of Appeals, which granted a stay of the decision pending appeal.

Therefore it's not a question that the DOJ needs to answer, although Abu Gonzales has already tried when he said the Diggs-Taylors definition of freedom is "one utterly divorced from civic responsibility - is superficial and is itself a grave threat to the liberty and security of the American people."

So if this is what the Top Official at the DOJ says, just where does that leave this little inquiry?

The inquiry by Glenn A. Fine, the department's inspector general, will focus on the role of Justice prosecutors and agents in carrying out the warrantless surveillance program run by the National Security Agency.

Oh.

"After conducting initial inquiries into the program, we have decided to open a program review that will examine the department's controls and use of information related to the program," Fine wrote in a letter dated Monday to House and Senate leaders on judiciary, intelligence and appropriations committees.

The review also will look at "the department's compliance with legal requirements governing the program," according to the four-paragraph letter obtained by The Associated Press.

Justice Department spokesman Brian Roehrkasse said the agency welcomes the review: "We expect that this review will assist Justice Department personnel in ensuring that the department's activities comply with the legal requirements that govern the operation of the program."

Excuse me, what legal requirements? This program is in direct violation of FISA and federal law under 18 USC 3121 (Which prohibits use of "pen and trap devices" without a warrant) and 18 USC 2702 (Which prohibits companies such as AT&T from sharing their user data with the government without a warrant).

Congress has not passed any law authorizing this program, in fact the President is still asking them to - so exactly what "legal requirements" is Mr. Roehrkasse talking about?

And just how deep could this inquiry possibly go after the President personally squelched the last one by denying security clearances to the program. But Fine apparenly already has clearance...

Democrats also questioned the timing of the review. Fine's letter noted that his office asked the White House on Oct. 20 for additional security clearances that were approved just last week — following the Nov. 7 elections that gave Democrats control of Congress.

Noting Democrats' renewed power to subpoena Bush administration officials next year, Rep. Maurice Hinchey, D-N.Y., questioned that Fine's investigation "is only coming now after the election as an attempt to appease Democrats" who have been critical of the NSA program.

Ya think?

Just so we don't forget who were really dealing with here - we've got a nice reminder from one of Reagan's cronies.

Former Reagan administration national security official Robert F. Turner, now associate director at the Center for National Security Law at the University of Virginia, said congressional demands for sensitive information about the program puts them at odds with long-standing presidential powers over the collection of foreign intelligence.

"It's good that the executive branch, on its own, is making sure that someone's not abusing this power," Turner said. "But when Congress usurps power vested in the president by the people through the Constitution, then it becomes the lawbreaker."

Que? How exactly does Congress break the law by requiring that the President not break the law?

Call me silly if you like, but I for one think this entire inquiry is one big CYA. They're trying to see where the bodies are buried before the Sixth Circuit hands them a stack of shovels. If illegally gathered evidence has found it's way into actual court cases - those cases could be severely compromised under the fruits of the poison tree doctine. Therefore it's better to know exactly what cases are in jeopardy and might need to be refiled with new data, rather than have to drop them entirely.

I could be wrong, but that's how I see it. Not much else makes sense.

Vyan

Abu Gonzales : Upholding the Constitution is "Grave Threat" to U.S.

Amazing how far through the looking glass we've actually come...

Expecting the executive branch to obey the law and respect civil rights is "shortsighted,"

Those Who Want to Uphold the Constitution present a "grave threat" to U.S. security.

Gonzales Blasts Surveillance Critics
Nov 18, 3:47 PM (ET)
By CHASE SQUIRES

AIR FORCE ACADEMY, Colo. (AP) - Attorney General Alberto Gonzales contended Saturday that some critics of the Bush administration's warrantless surveillance program were defining freedom in a way that poses a "grave threat" to U.S. security.

Gonzales was the second administration official in two days to attack a federal judge's ruling last August that the program was unconstitutional. Vice President Dick Cheney on Friday called the ruling "an indefensible act of judicial overreaching."

Gonzales told about 400 cadets from the Air Force Academy's political science and law classes that some see the program as on the verge of stifling freedom rather that protecting the country.

"But this view is shortsighted," he said. "Its definition of freedom - one utterly divorced from civic responsibility - is superficial and is itself a grave threat to the liberty and security of the American people."

On August 17 a Federal Court judge in Detroit ruled that the "Terrorist Surveillance Program" which had been revealed by the New York Times in December was Unconstitution a ruled that it should be immediately terminated.

The ACLU who had filed the original suit had this statement:

Today’s ruling by U.S. District Court Judge Anna Diggs Taylor agreed with the ACLU that the NSA program violates Americans’ rights to free speech and privacy under the First and Fourth Amendments of the Constitution, and runs counter to the Foreign Intelligence Surveillance Act (FISA) passed by Congress. Judge Taylor also rejected the government’s argument that the case could not proceed because of state secrets, saying that facts about NSA wiretapping have already been conceded by the government.

"By holding that even the president is not above the law, the court has done its duty under our Constitution to serve as a check on executive power," said ACLU Associate Legal Director Ann Beeson, who argued the case before Judge Taylor. "Throwing out the Constitution will not make Americans any safer."

In her ruling, Judge Taylor dismisses the government’s argument that the president "has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself."

Obviously Gonzales wasn't paying attention based on his statement today.

At a news conference, Gonzales would not speculate how the administration would react if Congress did not authorize warrantless surveillance.

"We're optimistic because of the importance of this program, the success of the program, the stated commitment of the Democratic leadership to work with us in protection of America, and that we're going to have a good discussion and dialogue about the program," he said.

"We believe the president has the authority under the authorization of military force and inherent authority of the constitution to engage in this sort of program, but we want to supplement that authority," he said.

Part of what Gonzales is claiming here involving "inherent powers" is based on an argument that failed in the Hamdi case. In that situation the DOJ argue that Hamdi, who is a U.S. Citizen could be held and detained as an "Enemy Combatant" without judicial review under the Authorization to use Military Force in Afghanistan. The Supreme's found otherwise.

JUSTICE O ’CONNOR,joined by THE CHIEF JUSTICE,JUSTICE KENNEDY,and JUSTICE BREYER,concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.Pp.14 –15.

JUSTICE SOUTER,joined by JUSTICE GINSBURG,concluded that Hamdi ’ s detention is unauthorized,but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant.

In short, Hamdi should have the right to a judicial hearing - a process which is quite similar to that required by FISA - a warrant. How exactly Alberto ("Tortue Memos") Gonzales - the so-called Top Law Enforcement Official in the Country - and Vice President Dick ("Shooter") Cheney get from losing the Hamdi case to claiming that their Warrantless eavesdropping on tens of millions of phone calls and email information is somehow "Constitution" is a shocking and frankly sickening situation.

Both of these men took an solemn oath to "Uphold the Constitution", yet both seem hell-bent on violating it's very tenets.

Abu presents a false hobsons choice between the possible loss of "liberty" due to a devestating terrorist attack - which even in the worst case scenario is less likely to be as deadly and damaging as Hurricane Katrina - against the very real fact of lost liberty happening right now as a result of the Bush administrations Imperialist actions.

They claim this type of surveillance has been "highly succesful", yet the FBI considers the thousands of false leads and dead-ends they've generated so far to be "a waste" of time and resources. Resources which could and should be better spent on credible leads gained through legal means.

There is also the problem that evidence gathered against real terrorists who are actually captured using extra-legal means - is inadmissable under the fruits of the poison tree doctrine. (Of course this may be exactly why Bush has pushed so hard for the use of Military Commisions, which may use coerced and classifed evidence -"to protect sources and methods" - while simultaneously abandoning Habeas Corpus)

Newly empowered Congressional Democrats have already found that the Bush Administration has been regularly violating at least 26 Federal Laws - including FISA.

But it has to be said that this type of nonsensical counter-factual politicing by appointed Civil Servants is dangerous to the foundations of our Democracy itself. It is a far greater danger in the estimatation of many legal and constitutional scholars - than anything Al Qaeda has done, or will ever do.

The deepest cuts to liberty are those which are often self-inflicted.

Vyan

Why Rummy is the New Brownie!

Anybody else out there suffering from whiplash?

Wed Nov 1.

President Bush said Wednesday he wants Defense Secretary Donald Rumsfeld and Vice President Dick Cheney to remain in his administration until the end of his presidency, extending a job guarantee to two of the most criticized members of his team.

One Week Later (and just one day after the Mid-Term Thumpin')

As the Commander-in-Chief, I take these responsibilities seriously. And so does the man who served this nation honorably for almost six years as our Secretary of Defense, Donald Rumsfeld. Now, after a series of thoughtful conversations, Secretary Rumsfeld and I agreed that the timing is right for new leadership at the Pentagon.

We all have heard the Presidents claims that he simply wanted to get the "next question" when he blatantly lied about Rumsfeld staying on last week - but the timing of the firing - and it was a firing - portends far far more.

• Vyan's diary :: ::
• 
  

Please note the Rumsfeld had resigned twice before - the first time was after Abu Ghraib was revealed. That's not coincidence.

Rumsfeld got taken out with the trash strategically and purposefully. Yes, it's true that over a dozen retierd generals had called for his resignation, and that the Army, Navy, Air Force and Marine Times had published a joint editorial calling for Rumsfeld to leave - but I don't think those were ultimately the reasons.

The reality of a Democratic Congress with genuine investigative and subpeona power - and a powerful mad-on after 12 years off being kicked and stomped in the face by Republicans - required a sacrifice.

Rumsfeld is that sacrifice, but more importantly - he's bait.

Neo-Cons and their enabling lackey's like O'Leilly are already trotting out their brand shiny new "Democrats have to be moderate" meme.

Now the unintended consequence of the power shift in D.C. is that some Democrats will try to impose a secular-progressive agenda on the country.

First, there will be an attempt to raise taxes -- Ways and Means Chairman Charles Rangel will lead that.

Second, new speaker, Nancy Pelosi, will encourage investigations of the Bush administration, seeking to create a scandal which would help the Democrat presidential nominee in 2008.

But that could backfire on the Democrats as most Americans do not want Mr. Bush attacked. They want to see if the Democrats can do better. They do not want to see their government ripped apart in a time of war.

Create a Scandal?

The Iraq War itself - how and we why got into it, the missing WMD's, the Armor problems, the outsourcing of basic functions, the missing $8.8 Billion, the total $500 price tag, the body count, the failed reconstruction, Haditha , Mahmoudiya and the rising suicide rate among our troops - is the greatest Scandal this nation has seen in a century.

Then you have Gannon/Guckert, paying journalist to write pro-Administration puff pieces, manufacturing phony news stories, the failure to respond to the Cole Bombing and ignoring warnings about bin Laden, the illegal NSA wiretaps and datamining, Abramoff, the Plame-Wilson outing, the Robo-calling and phone jamming, publishing Nuclear Secrets on the Web, the muzzling of scientists by political appointees, the bait and switch of Bush's Faith Based Initiatives...

Democrats don't have to "make up a scandal" - they have a all you can eat buffet of scandals laid out right in front of them.

But the juiciest scandal is Rumsfeld and his involvement in War Crimes including the U.S. performing Kidnappings, Secret Dentention, Torture and Murder. This is the hottest potato in the patch, because there's a paper trail a mile wide that leads directly to Rumsfelds Desk - and a War Crime which results in murder is a Capital Offense.

• 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 of 2002 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.

Since then we've had over two dozen War on Terror detainees - Tortured to Death. That's 26 Times the Death Penalty, all under Rumsfeld's command.

This is why Bush was so fired up to have the Military Commissions Act passed before the election - that act not only allows the President to re-write Geneva on the back of a piece of toilet paper, he can redefine War Crimes. (But even under the new and not-so-improved version of the Act - Murder is still a Crime) So now he's dumped Rumsfeld (hoping that none of Rummy's stink will be able to stick to the ongoing administration) he'll have his brand new SecDef in place and confirmed before the Democrats actually move into their new offices in the Senate in January. This is replay of the scapegoat shuffle he pulled with Brownie, managing to walk away scott-free from any responsibility for the Katrina mess.

He's stalling for time until the end of his Administration, trying to sweep all this stuff under the rug, quickly, so that even if Democrats manage to pry it up and drag Rummy back out, they'll have to slow roast him on a spit under subpeona (he's a gammy old bird and he won't crack easily). The hearings will drag on and on, meanwhile Bush's Administration will be able to continue functioning unhampered and own hands will look (relatively) clean.

But they aren't.

The War Crimes implemented by Rumsfeld still lead directly back to the Bush's own office due to the Bybee Memo and Abu Gonzales' recommendation that detainees be denied Geneva status simply to avoid vulnerability to the War Crimes Act.

They knew they were going to commit War Crimes, they just didn't want to get caught.

Next to go - will probably be Cheney who also have his fingerprints all over this torture stuff. There's one thing we can count on, Bush will do whatever it takes to save his own ass. If he could dump Rummy, he can dump Shooter too - and that I think, would be a very interesting situation because I don't think Cheney will simply walk away.

He'll fight back and it could get pretty darn ugly.

I plan to bring pop-corn.

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