Court Rules That No Fly List Can Be Challenged

The Ninth Circuit ruled that a person can challenge the inclusion of their name on the government's no fly list. Sounds pretty obvious that you should have that right, but that isn't the Bush Administration's position.

The case is Ibrahim v Department of Homeland Security and it was decided by a two to one decision of the Ninth Circuit Court if Appeals.

Ms. Ibrahim was a Stanford student on a student visa from Malaysia, who also happens to be a Muslim. When she tried to fly home from San Francisco, she was blocked from boarding the flight, detained and handcuffed in front of her fourteen year old daughter, and taken to a police station. Two hours later she was released and she was permitted to fly home the following day after being subjected to "enhanced searches."

The suit was filed against numerous agencies and individuals alleging a range of violations, from Constitutional due process to violations of the Administrative Procedures Act. Basically all of her claims were denied in the District Court, which is the first level trial court in the Federal system. The Court of Appeals reversed two critical aspects of the trial court's decision. First, it held that the trial court did have jurisdiction to here the issue of whether her name was wrongly placed on the list. Secondly the court held she could pursue a claim against a TSA employee, John Bondanella, in his personal capacity, for his actions in connection with her detention.

This is a complex case involving questions of jurisdiction and statutory construction. (The Constitutional issues were not addressed.) The government was arguing that any challenges of this sort could only be filed in an appeals court. But the Ninth Circuit disagreed, holding that the statutory provision in question, 49 USC 46110, did not apply in this case because the no fly list is maintained by the Terrorist Screening Center, which is part of the FBI and therefore not covered by that statutory provision. Beyond the technical question, which is a close call, the Court looked at the practicalities of the case.

Our interpretation of section 46110 is consistent not merely with the statutory language but with common sense as well. Just how would an appellate court review the agency’s decision to put a particular name on the list? There was no hearing
before an administrative law judge; there was no notice-and- comment procedure. For all we know, there is no administrative record of any sort for us to review. See Florence, supra, at 2155-59 (the process of maintaining the No-Fly List is opaque). So if any court is going to review the government’s decision to put Ibrahim’s name on the No-Fly List, it makes sense that it be a court with the ability to take evidence.

It remains to be seen what impact this decision will have and whether it will be appealed. But is once again puts at issue the entire question of whether there should even be these kinds of lists and if they are to be maintained how can it be done in a way reasonably consistent with civil liberties.

I believe a no fly list makes no sense. If someone is a real threat based on real evidence they should be investigated and prosecuted. If there is no evidence of wrongdoing they should be free to conduct their affairs like any other citizen. If the authorities have reason to believe someone is going to bomb a plane, they can be detained and prosecuted. But having a list of hundreds of thousands of names of people who might have talked to someone who talked to someone who read a book about terrorism is idiotic. It not only abuses the rights of innocent people but also diverts recourses from meaningful activity. It is all done in the interest of creating an illusion of security, nothing more.

Three More "Worst Of The Worst" Are Freed, With An Orwellian Explanation

The Department of Defense announced today that three more Guantanamo detainees have been released. We don't know their names but one was sent to Afghanistan, another to the UAE, and the third to Qatar. These are three more of the five hundred prisoners who Donald rumsfeld labelled as the "worst of the worst" who have been released from Guantanamo without charges. According to DoD there are 265 left to go.

This announcement is good news for these prisoners but what is really remarkable is the language used by DoD in making the announcement. First, there is this,

These detainees were determined to be eligible for transfer following a comprehensive series of review processes.

Comprehensive review process? It's been six years. We prosecuted and won victory in WWII in three and a half years but it takes six years to finally figure out these poor schmucks shouldn't be in custody. If it gets any more comprehensive they'll be sending these guys home with walkers.

But not to rest on its laurels, the release goes on,

The transfer is a demonstration of the United States’ desire not to hold detainees any longer than necessary. It also underscores the processes put in place to assess each individual and make a determination about their detention while hostilities are ongoing — an unprecedented step in the history of warfare.

"No longer than necessary?" Who are they kidding? Everything they knew about these guys was made known soon after their capture. If they are like the typical Guantanamo detainee they were not captured on a battlefield. They were guys who were turned over by bounty hunting Pakistanis and Afghanis looking for a quick buck. Most of them were foreigners going to schools or passing through, and some were locals against whom Afghanis had familial or clan grudges.

But especially rich is the crowing about this wonderful process, which is claimed to be unprecedented in the annals warfare. Damn right it is unprecedented. We pay bounty hunters to round up people and gin up some "evidence" about their supposed misdeeds. We hold and torture them for a while before shipping them to Guantanamo where they get more of the same. They are isolated for long periods, interrogated endlessly, and after six years we say "OOps," you are no longer a threat.

The press release goes on to say that another 65 of the remaining 265 prisoners are eligible for release. And so far people have been released to the following countries,

Albania, Algeria, Afghanistan, Australia, Bangladesh, Bahrain, Belgium, Denmark, Egypt, France, Great Britain, Iran, Iraq, Jordan, Kuwait, Libya, Maldives, Mauritania, Morocco, Pakistan, Russia, Saudi Arabia, Qatar, Spain, Sweden, Sudan, Tajikistan, Turkey, Uganda, United Kingdom, United Arab Emirates, and Yemen.

What about the ones not yet cleared for release. Well, one is a guy named Hamdan who is currently on trial. Unlike the other 500, he actually had a connection to Al Qaeda, but his "crime" seems a little tenuous. He was nabbed for having been Osama bin Laden's driver. Here at the ACLU's website is an update on what happened at the trial today. Actually, they watched a movies prepared by the DoD which depicts the evils of AQ, but doesn't say anything about the actual case that is being tried.

If these prosecutors had any sense of history they would understand the true pathos and tragedy of this case against OBL's driver. In 1945 the US took the lead in prosecuting the surviving members of the genocidal Nazi regime. Anything OBL has done pales in comparison with what Hitler and his minions did. There was one person, though, who was not prosecuted — he was Hitler's driver. That man's name was Erich Kempka who, in addition to being Hitler's driver, was also an SS officer who was with Hitler from 1934 all the way to the last day in the bunker. Not only was he not tried at Nuremberg, he was a witness for the defense of Martin Bormann

In the words of the DoD press release our actions in Guantanamo truly are "unprecedented."

Ninth Circuit: Supreme Court Handgun Case Doesn't Cover All Weapons

The Ninth Circuit issued an unpublished decision in the case U.S. v Gilbert on July 15 holding that the recent Supreme Court Second Amendment case does not give people the right to own automatic weapons and sawed off rifles. The court stated

The Supreme Court’s recent decision in District of Columbia v. Heller, 554 U.S. ___ (2008), holding that the Second Amendment protects a limited individual right to possess a firearm–unconnected with service in a militia–does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms. Id., Slip. Op. at 27.

Since the Supreme Court decided the Heller case there has been much speculation regarding the scope of the ruling. Would this open the flood gates to unrestricted ownership of handguns and permit the ownership other types of weapons, like assault rifles. The Ninth Circuit opinion says that it does not.

The facts in Gilbert are straight forward. Gilbert was charged with ten counts involving owning a machine gun, owning unregistered firearms, and being a felon in possesion of a firearm. He said he knowingly bought some of the weapons from undercover agents because he wants to challenge the Constitutionality of the gun laws. At the end of the trial the jury was given the following instruction,

A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.

Gilbert appealed his conviction arguing that the jury instruction violated his Second Amendment rights.

The Ninth Circuit did not buy his argument and, as noted above, said that the Supreme Court's Heller decision articulates a limited individual right to possess a firearm that does not extend to machine guns, short barreled rifles, or to the ownership of weapons by felons.

Unfortunately, the Gilbert opinion is very short and does not include an explanation of why the court read the Heller decision in this limited way. But, beyond the limitations of the ruling itself, there is ample language in the Heller case to support this reading of the decision.

Like any case, the Supreme Court's Heller decision itself was limited to the facts of the case, which was the ownership of a handgun by a non-felon, who had not been judged mentally incompetent. However, there was much discussion in the dicta of the opinion where the majority not only says this is a limited right but also discusses areas where government regulation would not conflict with the Second Amendment.

Here is an excerpt from an article I wrote discussing the limitations in the Heller opinion.

Much will be written on the subject as we have a chance to digest the language of the opinion. But these statements from the majority opinion should allay fears that the doors have been opened to unrestricted gun ownership.

At the outset, the Court says that it's longstanding opinion in United States v Miller is still valid but clarifies the scope of that decision.

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

The court is protecting weapons held by law abiding people for lawful purposes. Self-defense is the lawful purpose the court is upholding. The court also limits the protection to the types of weapons that a militia man would have in his home at the time of the founding.

We also recognize another important limitation on the
right to keep and carry arms. Miller said, as we have
explained, that the sorts of weapons protected were those
“in common use at the time.”

That does not mean the Court is sanctioning the types of weapons a soldier would use today.

It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty. It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks. But the fact that modern developments have lim-
ited the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the
right.

The decision goes on to make clear that the Amendment does not prohibit the who, what, where and why of weapons regulation.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

For instance, it doesn't guarantee the right to carry concealed weapons.

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

Also the government can regulate who owns weapons and where they may be carried.

nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

It remains to be seen how the Supreme Court ultimately refines the limits of the Heller decision. But the lower courts seem to be reading it narrowly and following the limitations that are suggested in the ruling. And lest anyone think this limited approach has only appeared in the so-called "liberal" Ninth Circuit, District Court decisions in Missouri, Johnson v U.S., and Louisiana, U.S. v Dorosan, have reached the same conclusion.

What does all of this mean for Obama and other Democrats in the upcoming election? The Supreme Court has taken off the table one of the most divisive issues that has bedeviled Democrats in many decades of elections. For decades, the NRA has used the "right to bear arms" as a major fund raising tool and rallying cry. They have been able to successfully attack sensible gun control legislation by using the absolutist argument that Democrats want to totally disarm all Americans. They will not be able to do so any longer.

The Supreme Court has decided there is an individual right to own handguns. That decision, right or wrong, will be with us for a long time. Moving forward, states and cities cannot enact laws that impose a complete ban on handgun ownership. Beyond that, however, a conservative majority of the Court, in an opinion written by Scalia, has signaled its willingness to accept most forms of gun regulation currently on the books, and the lower courts are already adopting that position.

Scalia, the darling of the NRA, has said that guns can be regulated. The Second Amendment right to own a gun does not extend any person, regardless of their background, it does not mean that any type of gun can be owned, and it does not mean a person can take a gun anywhere they wish.

The NRA won its Second Amendment battle but it will prove to be a pyrrhic victory. A powerful fundraising and campaign tool has been taken away from them. They can no longer threaten that guns will be taken away from law abiding citizens if Democrats are elected. That issue has been decided. The issue left on the table is whether we can have reasonable gun control legislation designed to protect the health, safety and welfare of our communities. As the NRA finds itself defending gun ownership by felons, possession of automatic weapons, tanks and grenade launchers, and the carrying of weapons near schools it will find itself increasingly associated with the most lunatic fringe of the movement with no Scalia or Second Amendment to fall back on.

From this point on the discussion will shift to the reasonableness of specific types of gun control. Those are arguments that progressives can win. But we still need to elect Obama and a strongly Democratic Senate to ensure that the courts continue to interpret Heller in a limited manner.

(I do recognize that Heller only applies to Federal jurisdictions and the Court has yet to rule on Second Amendment incorporation, which would make it applicable to the states. We have not had an incorporation case in a long time so that should prove interesting. While there are some peculiarities to the Second, in the end I'd be surprised if it is not made applicable to the states.)

Crossposted from docudharma

The Gun Control Decision Is Good For Obama And Democrats

Today, the Supreme Court issued a decision in District of Columbia v Heller striking down the District of Columbia ban on hand gun ownership. Contrary to what some may think, the world has not been turned on its head, except that a rallying cry for the NRA and other forces that have used gun control as a wedge issue against Democrats for decades has been partially neutered.

The Court held that the second amendment right to bear arms is an individual, not just a collective right associated with having a state militia. But, it is still a limited right and is not totally disconnected from the concept of a militia. The court basically held that at the time of the founding the weapons that people had for personal protection are the same weapons they brought to their service in the militia. It is those weapons that the court says are covered by the Amendment.

This decision makes clear that the court is not invalidating all gun control laws. It does not mean that licensing requirements are invalid. It does not mean that people have the right to own artillery, tanks, sawed off shotguns and M-16s. It also doesn't mean people can carry concealed weapons or take weapons to school. Finally, felons and people with mental problems can also be prohibited from holding weapons.

This opinion was written by Scalia, the republican icon of the ideal Justice. Because his opinion would validate most of the types of gun control legislation on the books today, it steals the thunder from the gun lobby about gun rights in the US today. As such, It will be a net positive for Obama and other Democrats.

Much will be written on the subject as we have a chance to digest the language of the opinion. But these statements from the majority opinion should allay fears that the doors have been opened to unrestricted gun ownership.

At the outset, the Court says that it's longstanding opinion in United States v Miller is still valid but clarifies the scope of that decision.

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

The court is protecting weapons held by law abiding people for lawful purposes. Self-defense is the lawful purpose the court is upholding. The court also limits the protection to the types of weapons that a militia man would have in his home at the time of the founding.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”

That does not mean the Court is sanctioning the types of weapons a soldier would use today.

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

The decision goes on to make clear that the Amendment does not prohibit the who, what, where and why of weapons regulation.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

For instance, it doesn't guarantee the right to carry concealed weapons.

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

Also the government can regulate who owns weapons and where they may be carried.

nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

Finally, the decision leaves open the question of the legality of registration laws.

Respondent conceded at oral argument that he does not “have a problem with . . . licensing” and that the Dis- trict’s law is permissible so long as it is “not enforced in an arbitrary and capricious manner.” Tr. of Oral Arg. 74–75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement.

Basically, the Court is saying that it is impermissible to have an outright ban on weapons for use in the home for personal protection. Agree or disagree, but that is a limited ruling. Contrary to what Second amendment advocates believe, Scalia makes clear that the government can restrict who can own weapons, what type of weapons are protected and where and how those weapons can be carried. That is really what most gun control advocates have been wishing for all these years. i think it takes away the Second Amendment as a wedge issue, and that can only help Democrats.

Five Reasons Why FISA Bill May be Worse Than You Think

The House passed FISA bill is bad legislation for many reasons, but these are the five biggest problems I see.

Politically Unnecessary

When addressing a bill with so many substantive issues I hate to start out with the politics of the matter but in this case it seems necessary. There can be no doubt the Democrats who support this bill do so in the belief that their support will protect them from charges they are soft on terrorism. That belief is misplaced. In the upcoming election the only card the Republicans have to play is the fear card. Every Democrat will have to face the "soft on terrorism" charge irrespective of how they vote on this or any other piece of legislation. Why? Because the fear card is premised on a lie, and that lie will be repeated over and over again.

The only way to successfully defeat the fearmongers is to attack them straight on. Tell the voters that the Republicans have made us less safe. They are pursuing policies that create enemies. They have depleted our blood and treasure and put our country at risk. They seek an imperial form of government that ignores all of our civil liberties. They aren't just after terrorists, they are after every person who dares to disagree with them. And they have besmirched the sacrifice of our troops by trashing the Constitution for which those troops have fought and bled and died.

Makes A Mockery Of Judicial Oversight

This bill contains a patina of judicial oversight that is so thin that it would be laughable were the subject matter not so serious. The ACLU summarized it this way

This bill allows for mass and untargeted surveillance of Americans’ communications. The court review is mere window-dressing – all the court would look at is the procedures for the year-long dragnet and not at the who, what and why of the spying. Even this superficial court review has a gaping loophole – ‘exigent’ circumstances can short cut even this perfunctory oversight since any delay in the onset of spying meets the test and by definition going to the court would cause at least a minimal pause. Worse yet, if the court denies an order for any reason, the government is allowed to continue surveillance throughout the appeals process, thereby rendering the role of the judiciary meaningless. In the end, there is no one to answer to; a court review without power is no court review at all."

You read that right. They can spy on whoever they wish without telling a court who they are spying on, why they are spying on them and how they are spying on them.

This so-called judicial review is so weak that it may well not meet the requirements of the Fourth Amendment, but that is a discussion for another day.

Bush's Claims Of Unlimited Power To Ignore FISA Is Untouched

One of the most laughable parts of the bill the so - called "exclusivity " provision. The existing FISA already says that FISA is the exclusive authority for the conduct of foreign surveillance. So what does this bill do? It adopts new language that says- well, the same thing. Only this time Congress says it really means it. It does make one thing even clearer than before. It says that Bush can't rely on any other law to get around FISA unless that law specifically amends FISA. This is designed to prevent a President from arguing, as Bush did, that a law such as the Authorization For The Use Of Military Force had the effect of overriding FISA. But since that was a weak argument when first asserted by Bush, there is little doubt he would find some other lame argument to read his way around this "exclusivity language."

Moreover, this "exclusivity" language doesn't even touch Bush's main argument. Bush says that his "Commander in Chief" powers under Article II of the Constitution override FISA or any other law he finds to be inconvenient. He has used that claim of authority to torture people and ignore the Geneva Conventions and our own laws governing the treatment of prisoners, to hold people indefinitely without charges, and to wire tap people at his whim. The legal opinions he relies on make clear that Congress cannot pass a law that restricts his powers.

This Article II issue can only be answered by the Courts. As long as Congress keeps the issue from going to the courts, he will continue to assert his power with impunity.

Turns Qwest Into A Sucker

Not all of the telecom companies gave in to Bush's demand for access to their customer's calls. Qwest, on the advice of counsel, declined. They did not accept Bush's assertions that the request was legal and told Bush to get a court order. Qwest later said that it was penalized by the Bush Administrationfor its decision to respect the Constitution. And now the Congress will add salt to the wound by immunizing the other companies that acceded to Bush's lawlessness. Moving forward, company counsel will have a much harder time persuading their management to resist the illegal demand of an administration bent on lawbreaking.

Immunity May Violate The Fifth Amendment

There has been little discussion of whether the telecom immunity provision is Constitutional. Some comments have discussed the prohibition against ex post facto laws and correctly noted that this provision is not applicable. There is, however, another provision that could invalidate the immunity language. The Fifth Amendment prohibits the taking of private property without just compensation. There is at least a possibility that the immunity provision violates this guarantee for the following reasons.

When people think of the Fifth Amendment taking provision they usually focus on real estate that is condemned by the government. But the property interests it guarantees are much broader than that. For over one hundred years, at least since Pritchard v Norton, the Supreme Court has recognized that a law suit is property. As such, can be protected by the Fifth Amendment. That is what is at stake here.

FISA provides that law suits can be brought against companies or other people who violate FISA and if the plaintiffs are successful, they can recover civil damages of up to $1,000 for each violation plus punitive damages. These are the law suits that will be terminated if the immunity provision is enacted.

To establish a Fifth Amendment violation, the plaintiffs would have to prove that their legal claims had already vested. To do so, they will have to overcome the hurdle of a Circuit Court decision in the forties, Fisch v General Motors, which refused to find an illegal taking when Congress enacted amendments to the Fair Labor Standards Act that nullified the claims of some workers. But that case is distinguishable from this one and the issue has never been ruled on by the Supreme Court. Here is an article that discusses the matter in greater detail.

If this immunity provision is enacted we may get a chance to see whether a court finds it to be an unconstitutional taking. But the very specter of that possibility should have given the House pause as it passed the bill. While I don't really hold out any hope that this bill will be changed or blocked in the Senate, my heart's cockles would be warmed if I were wrong.

Bush Squeals When Times Pokes Him On GI Bill

The New York Times hit a home run when it exposed Bush's mendacity on Jim Webb's GI bill causing Bush to squeal like a stuck pig. It all started with this New York Times editorial which nails Bush's opposition to Webb's bill with some biting but all to accurate commentary.

He is wrong, but at least he is consistent. Having saddled the military with a botched, unwinnable war, having squandered soldiers’ lives and failed them in so many ways, the commander in chief now resists giving the troops a chance at better futures out of uniform. He does this on the ground that the bill is too generous and may discourage re-enlistment, further weakening the military he has done so much to break.

The pain of this truth was too much for Bush, causing him to issue a White House Statement that reads like the squirming of an emperor who has finally been called out for having no clothes.

Once again, the New York Times Editorial Board doesn't let the facts get in the way of expressing its vitriolic opinions - no matter how misleading they may be.

In today's editorial, "Mr. Bush and the GI Bill", the New York Times irresponsibly distorts President Bush's strong commitment to strengthening and expanding support for America's service members and their families.

Really? The Times is misleading? This from the man who lied this country into a war and has governed by sowing fear for the last eight years. And Bush's commitment to service members? His only commitment has been to continue sending them into battle in a tragically conceived and pitifully executed war for repeated tours, to cut VA funding, to conceal their sacrifices by limiting press coverage, and by stressing our military capabilities to the breaking point.

So what is it about the Webb Bill that is so objectionable to Bush? As summarized by the Times,

Their bill would pay full tuition and other expenses at a four-year public university for veterans who served in the military for at least three years since 9/11.

At that level, the new GI Bill would be as generous as the one enacted for the veterans of World War II, which soon became known as one of the most successful benefits programs — one of the soundest investments in human potential — in the nation’s history.

In Bushworld this type of benefit is unacceptable and anyone who says otherwise is a vitriolic bleeding heart. But why is that so? According to Bush, the bill is fatally flawed because it does not provide to the transferability of veterans benefits and those benefits are not based on length of service.. I'm not kidding.

This is how Bush characterized the type of Bill he wants.

There are several GI bill proposals under consideration in both the House and Senate. The Department of Defense has specific concerns about legislation sponsored by Senator Webb because it lacks transferability and could negatively impact military retention.

The President specifically supports the GI Bill legislation expansion proposed by Senators Graham, Burr, and McCain because it allows for the transferability of education benefits and calibrates an increase in education benefits to time in the service.

Give me a break. GI Bill benefits have never been transferable. If Bush wants Congress to revisit the entire concept behind veterans benefits to determine if transferability is appropriate, fine. But that is no reason to oppose the increase in educational benefit. The length of service argument is equally lame. Benefits have always been based on meeting a minimum service requirement. Period. There are re-enlistment bonuses and other incentives to encourage soldiers to expend their tours of duty.

Bush knows he is in a politically and morally untenable position because he can't discuss his real reason for opposing this legislation. He's really afraid that these benefits will be paid for with a tax increase. Perish the thought. And, horror of horrors, the increase will fall on the Bush Protected Class.

The bill passed the House with a surtax on the wealthy, in the form of a 1/2 percent tax on incomes over $500,000 and over $1 million for joint filers. This is referred to as a "Patriot's Premium" by Democrats, but has incurred the predictable wrath of Republicans.

"Raising taxes is Washington's easy way out all the time," said House Minority Leader John Boehner, R-Ohio. "And I'm opposed to raising taxes."

What Boehner and his merry band of brain dead bozos fail to acknowledge is that by not supporting a tax hike now they are shoving a new tax burden on our children and grandchildren, but that's another story.

The only formal veto threat on this bill came from the Office of Management and Budget.

The White House this week issued a veto threat against the overall measure, singling out the tax increase to pay for veterans benefits as a top reason. “The president has been clear that tax increases are unacceptable,” the Office of Management and Budget said in a statement.

So what is it? What are Bush's real objections? The transferability and retention arguments are beyond lame, even for him. The only reason that is consistent with everything this administration stands for is Bush's consistent effort to reduce taxes on his protected class. Nothing else makes sense.

Now Bush may be saved yet. The Senate passe G I Bill does not include the House passed surtax. Senator Webb has said he would support the tax but there is no certainty that enough Senators will agree. They could well cave in to pressure, the type that has rendered the "world's greatest deliberative body" into a shadow of its former self. But if both Houses pass a bill with the tax provision and Bush vetoes it, nobody should be under any misimpression as to why the veto occurred.

The Truth About The Military Commissions Laid Bare at Guantanamo

Yesterday, Monday April 28, 2008, the man who used to be the Chief Prosecutor at Guantanamo gave sworn testimony that puts the lie to the farce of the of the Military Commissions AcT (MCA) proceedings being used to try alleged terrorists. Col. Morris Davis told the tribunal hearing the case of Salim Ahmed Hamdan that

Defense Department general counsel William J. Haynes II, who announced his retirement in February, once bristled at the suggestion that some defendants could be acquitted, an outcome that Davis said would give the process added legitimacy.

"He said, 'We can't have acquittals,' " Davis said under questioning from Navy Lt. Cmdr. Brian Mizer, the military counsel who represents Hamdan. " 'We've been holding these guys for years. How can we explain acquittals? We have to have convictions.' "

(Note, there is no transcript available at this time.)

Not only did Davis say that the outcome of these proceeding was rigged but that the motivation for even having the trials was political.

Davis told Navy Capt. Keith J. Allred, who presided over the hearing, that top Pentagon officials, including Deputy Defense Secretary Gordon R. England, made it clear to him that charging some of the highest-profile detainees before elections this year could have "strategic political value."

Davis also addressed the use of so-called "evidence" extracted by the use of torture.

He said Air Force Brig. Gen. Thomas W. Hartmann, the legal adviser to the top military official overseeing the commissions process, was improperly willing to use evidence derived from waterboarding, a form of simulated drowning. "To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture, it puts a prosecutor in an ethical bind," Davis testified. But he said Hartmann replied that "everything was fair game -- let the judge sort it out."

Col. Davis' statements in court were more specific and damning than the reasons he gave for resigning last October, as outlined in an op-ed in the L. A. Times. He articulated three reasons. First, Susan Crawford, the new person appointed as the convening authority issued orders that removed any pretense of her objectivity in the proceedings. Second, Crawford was undermining any possibility that the proceedings would be viewed as legitimate by the Nation and the world, by insisting on more secrecy than what was needed for national security reasons. Finally, as echoed in his testimony he

resigned because of two memos signed by Deputy Secretary of Defense Gordon England that placed the chief prosecutor -- that was me -- in a chain of command under Defense Department General Counsel William J. Haynes. Haynes was a controversial nominee for a lifetime appointment to the U.S. 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.

I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned. Haynes and I have different perspectives and support different agendas, and the decision to give him command over the chief prosecutor's office, in my view, cast a shadow over the integrity of military commissions. I resigned a few hours after I was informed of Haynes' place in my chain of command.

Subsequently, Col. Davis felt the need to be even more critical of the military commissions. In an article in the Nation after six Guantanamo detainees were charged he talked about the prospect of fair trials by relating the conversation he had with Haynes, which was later covered in his testimony to the tribunal.

Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes--the man who now oversees the tribunal process for the Defense Department.

"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

This has been a long road to disillusionment for Col. Davis. Before he testified, before the Nation interview, and before his op-ed following his resignation, he wrote an op-ed in the Times defending the treatment of prisoners at Guantanamo and the fairness of the MCA procedures. He summarized by saying,

Guantánamo Bay is a clean, safe and humane place for enemy combatants, and the Military Commissions Act provides a fair process to adjudicate the guilt or innocence of those alleged to have committed crimes. Even the most vocal critics say they do not want to set terrorists free, but they scorn Guantánamo Bay and military commissions and demand alternatives. The facts show the current alternative is worth keeping.

Four months later, after seeing how the Bush Administration cretins would work to subvert the purpose of the law (though I am not one who ever believed it workable) and further besmirch the principles of the nation he had enough. Though he has already publicized his view regarding the travesty of the MCA proceedings, what he did in the Hamdan trial is different. He swore under oath as to what he knew, had seen and had heard.

It is easy to be cynical about what, if any, effect this testimony will have on the Hamdan trial. But it seems undeniable that sworn testimony from the ex-Chief Prosecutor that challenges the underlying fairness, objectivity and veracity of the proceedings in Guantanamo, conducted under the auspices of the Military Commissions Act, will rightfully give support to all those who have questioned the validity of this process from the outset. Also, it should lay the groundwork for a truth telling session, either by the court or Congress, with Brig. Gen. Thomas W. Hartmann, Deputy Defense Secretary Gordon R. England, and William J. Haynes II. Hopefully, it will also generate political support for the Congress to finally begin holding the people in this administration accountable for the travesties they have committed in our names.

There is one final sad note about all of this. Even if these trial were fair Bush has corrupted the system beyond recognition as pointed out in this quotation from the Nation article,

Says ACLU staff attorney Ben Wizner, "The trial doesn't make a difference. They can hold you there forever until they decide to let you out." The one person to be released from Guantánamo through the judicial process, Australian David Hicks, pleaded guilty. As Wizner wrote in the Los Angeles Times in April 2007, "In an ordinary justice system, the accused must be acquitted to be released. In Guantánamo, the accused must plead guilty to be released."

Berkeley Dean Says Yoo's Actions Don't Warrant Firing

In an announcement to faculty and students Christopher Edley, Jr. , Dean of the Boalt Hall School of Law at Berkeley said that in his personal opinion the actions of tenured professor Jon Yoo do not rise to the standard that would warrant Yoo's dismissal.

That is not to say that Edley is an apologist for Yoo. In fact, some of his comments are striking. Edley writes,

There are important questions about the content of the Yoo memoranda, about tortured definitions of "torture," about how he and his colleagues conceived their role as lawyers, and about whether and when the Commander in Chief is subject to domestic statutes and international law.

Edley also recognizes the special role that lawyers play in the government.

What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics. I believe there is much more to the separation of powers than the promise of ultimate remedies like the ballot box and impeachment, even in the case of a Commander in Chief during war. And I believe that the revolution in sensibilities after 9/11 demands greater, not reduced, vigilance for constitutional rights and safeguards. What of the argument made by so many critics that Professor Yoo was so wrong on these sensitive issues that it amounted to an ethical breach? It is true, I believe, that government lawyers have a larger, higher client than their political supervisors; there are circumstances when a fair reading of the law must—perhaps as an ethical matter?—provide a bulwark to political and bureaucratic discretion. And it shouldn't require a private plaintiff and a Supreme Court ruling to make it so. Few professions require an oath at entry, but law does. Oaths must mean something.

Notwithstanding his lack of regard for Yoo's work Edley says that the standard for removal is rightfully high, in order to preserve the principles of academic freedom.

Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here is the relevant excerpt from the "General University Policy Regarding Academic Appointees," adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:

Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]

This very restrictive standard is binding on me as dean, but I will put aside that shield and state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct—that is, some breach of the professional ethics applicable to a government attorney—material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

In my mind, the jury has yet to be empaneled on the question of whether Yoo's actions rise to the level of a legal crime. I think there is no doubt he committed grievous moral crimes.

There is one thing the Dean says with which I seriously disagree. Edley writes,

As critical as I am of his analyses, no argument about what he did or didn't facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.

Rumsfeld, Bush and the rest are certainly more culpable than Yoo. But Yoo was more than an advisor. He was the indispensable enabler. Without his "legal" opinions, the abuses would have stopped or not even begun. For that, Yoo deserves his special place among the reviled.

The process of holding Yoo accountable may start with John Conyers hearing in May which has now been expanded to embrace the subject of the Principle's Meetings, where specific torture techniques were planned and approved by Rice, Rumsfeld, Ashcroft , Tenet, and Cheney, on behalf of and with the certain concurrence of Bush.

John Yoo's Torture Memo Is Going To Court

Lawyers for Ali Saleh Kahlah al-Marri have requested the Fourth Circuit consider the Yoo memorandum in its deliberations on al-Marri's pending appeal. Specifically the lawyers argue that al-Marri was designated an illegal enemy combatant based on the erroneous legal advice contained in the Yoo memorandum and that if the Circuit Court upholds his detention it will be doing so on the basis of advice that even the Department of Justice has rejected.

This developnent is discussed in this Washington Post article and in Scotusblog.com.

The March 14, 2003 Yoo Memorandum has been the subject of much discussion, including this post by Valtin where he publicizes the move by the National Lawyers Guild to have Yoo disbarred. One of the problems that many of us who have reviewed the memorandum have in writing about it that it is such a terrible piece of legal work that it is hard to know where to start.

The memorandum has four parts, but all hinge on the first two parts which are summarized as follows:

In Part I, we conclude that the Fifth and Eighth Amendments, as interpreted by the Supreme Court, do not extend to alien enemy combatants held abroad. In Part II, we examine federal criminal law. We explain that several canons of construction apply here. Those canons of construction indicate that federal criminal laws of general applicability do not apply to properly~authorized interrogations of enemy combatants, undertaken by military personnel in the course of an armed conflict. Such criminal statutes, if they were misconstrued to apply to the interrogation of enemy combatants, would conflict with the Constitution's grant of the Commander in Chief power solely to the President.

This can be further summarized more succinctly. According to Yoo, The Commander in Chief can take any action he wishes regardless of whether that action would violate any provision of the Constitution or any Statute passed by Congress.

There is only one problem with his conclusion. There is no Supreme Court decision supporting that conclusion. Yoo cites the very few Supreme Court decisions on the subject and none of them say that. There are opinions discussing the breath of the President's powers in waging war, but those cases do not involve direct violations of Constitutional or statutory provisions. They involve questions regarding the President's ability to take an action in the absence of express statutory authority. And even here Yoo's opinion is on shaky ground because of YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952), where the Supreme Court struck down President Truman's attempt to seize steel mills during the Korean war in the absence of Congressional authorization.

Furthermore Yoo knows that his opinion is built on a house of cards. In a clever footnote he states,

11 Our analysis here should not be confused with a theory that the Constitution somehow does not "apply" during wartime: The Supreme Court squarely rejected such a proposition long ago in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 119-20 (1866), and at least that part of the Milligan decision is still good law. See, e.g., Kennedy v. Mendoza­ Martinez, 372 U.S. 144, 164-65 (1963); United States v. L. Cohen Grocery Co., 255 U.S. 81, 88 (1921) ("[T]he mere existence of a state of war could not suspend or change the operation upon the power of Congress of the guaranties and limitations of the Fifth and Sixth Amendments ...."). Instead, we conclude that the restrictions outlined in the Fifth Amendment simply do not address actions the Executive takes in conducting a military campaign against the Nation's enemies.

We're not saying the Constitution doesn't apply during war time, because the Court has held otherwise. We're just saying that it doesn't apply to the President's actions while he is conducting a war. Nice try John, but no cigar.

In any event, the filing in the al-Marri case is good news because we just might get an early glimpse of an Appeals Court's opinion on Mr. Yoo's handiwork. As reported by the Post,

"The memo makes plain as day that al-Marri was declared an enemy combatant based on discredited legal opinions and for the illegal purpose of abusive interrogations," Jonathan Hafetz, an attorney with the Brennan Center for Justice who represents Marri, said yesterday. Defense attorneys contend that Marri, who is being held at a Navy brig in South Carolina, has been subjected to such interrogation methods as sleep deprivation and being forced to stand in uncomfortable positions for long periods.

Legal "experts" have different views on the issue. Again, as reported by the Post,

"I'm not sure the Yoo memo is of direct assistance to Mr. Marri," said Douglas W. Kmiec, a Pepperdine University law professor who headed the Justice Department's Office of Legal Counsel in the Reagan and first Bush administrations. "The memo primarily concerns aggressive forms of interrogation, not primarily the president's authority to designate individuals as enemy combatants."

But David H. Remes, who represents 16 detainees at Guantanamo Bay, Cuba, said it was "perfectly legitimate for al-Marri's counsel to bring this to the court's attention."

He said: "The detention and treatment of al-Marri rest on the premise that as an enemy combatant he enjoys no constitutional protections. If the administration has repudiated the memo supporting that premise, then the government's justification for holding al-Marri as an enemy combatant crumbles."

I would love to see a court react directly to the Yoo memorandum, or even just give it the back of their hand in some footnote or dicta somewhere. I suspect this will probably not be that case, but hope springs eternal.

Yoo Says the Fourth Amendment Does Not Apply To Bush

John Yoo's damage to our Constitution and the nation it created is even worse than we thought. We now discover that in 2001 he told BushCo that they were free to violate the Fourth Amendment of the Constitution. This little part of that quaint document says,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Yoo, on behalf of the Office Of Legal Counsel of the Justice Department, the office that tells DOJ what the law is, advised

Our office recently concluded that the Fourth Amendment had no application to domestic military operations,"

We do not yet have a copy of the 2001 memo. The language above is found in a footnote in Yoo's 2003 memo which holds that Bush can order the torture of anyone as long as he deems it necessary.

The full text of the footnote in the 2003 opinion states,

10 Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, n, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terorist Activities Within the United States at 25 (Oct 23, 200 I).

If U.S.v Verdugo-Urquidez is the opinion relied on by Yoo, that is a slender reed indeed. That opinion involved a search of the property of a foreign national that was conducted in Mexico with the authorization of the Mexican government.

There is another footnote in the 2003 opinion which is almost comical. Note 11 provides.

11 Our analysis here should not be confused with a theory that the Constitution somehow does not "apply" during wartime: The Supreme Court squarely rejected such a proposition long ago in Ex parte Milligan, 71 U.S. (4 Wall.) . 2, 119-20 (1866), and at least that part of the Milligan decision is still good law. See, e.g., Kennedy v. Mendoza­ Martinez, 372 U.S. 144, 164-65 (1963); United States v. L. Cohen Grocery Co., 255 U.S. 81, 88 (1921) ("[T]he mere existence of a state of war could not suspend or change the operation upon the power of Congress of the guaranties and limitations of the Fifth and Sixth Amendments ...."). Instead, we conclude that the restrictions outlined in the Fifth Amendmenr:simply do not address actions the Executive takes in conducting a military campaign against the Nation's enemies.

It would not be surprising if we find a similar statement in the Yoo's 2001 regarding the Fourth Amendment, because that is the nature of his "opinions." They are filled with citations, most of which don't support and in many cases contradict the conclusions reached. After thousands of words we are then given conclusory statements to the effect that the President has the power to do whatever he wishes. While the Constitution applies to the President, it just doesn't apply in such a way that would restrict him from doing whatever he, in his sole omnipotent discretion, deems necessary.

The Justice Department has since disavowed both memoranda, they claim. A DOJ spokesman said

"We disagree with the proposition that the Fourth Amendment has no application to domestic military operations," he said. "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."

There is confusion as to whether this memo was the legal underpinning for Bush's so-called Terrorist Surveillance Program.

White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program. "TSP relied on a separate set of legal memoranda," Fratto told The Associated Press. The Justice Department outlined that legal framework in a January 2006 white paper issued by the Justice Department a month after the TSP was revealed by The New York Times.

That sounds like horsepuckey to me since Yoo's memo

was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA's secret wiretapping program for the first time.

The importance of this memo, though, is not whether it was used to justify one program or another, or even whether it was subsequently disavowed. Rather, it illustrates the mindset of the lawless group of people running our government. We have seen much evidence of this by their deeds in the last seven years. We know understand better why they have such utter contempt for the Constitution. Their lawyers had seen written in the Document a new Article that says,

"Nothing in this document shall in any way constrain, restrict or inhibit the authority of the 43d President from doing whatever he wishes in his role as Commander in Chief. In that role he shall have all the powers possessed by the King of England prior to the Magna Carta plus such other additional powers as he deems necessary."

My apologies for being so snarky, but the outrage of these guys leaves little room for intelligent discussion. That will come later when we have the actual text of this memo to read.

The President Ordered To Comply With A New Law

The President has been ordered to comply with a new law providing fuel to people who have been hit hard by this bitter cold winter. OK, the President in this case is Ahmadinejad, not Bush, and the order came from Ayatollah Ali Khamenei, Supreme leader of Iran, not the Supreme Court of the United States, but this news is instructive for us on several levels.

As reported by the Guardian,

At least 64 people are reported to have died after gas supplies were turned off in sub-zero temperatures. The cuts, belying Iran's status as possessor of the world's second biggest natural gas reserves, have provoked public outrage and threaten to turn a mood of rumbling unhappiness into a winter of discontent for Ahmadinejad.

In response to this crisis, Iran's Parliament passed a law, over Ahmadinejad's objection, that allocated almost a billion dollars to pay for the distribution of heating gas to the suffering people. When Ahmadinejad refused to comply with the law, Iran's Supreme Ruler intervened and ordered that the law be obeyed. In issuing the order Ali Khamenie stated,

All legal legislation that has gone through [the required] procedures stipulated in the constitution is binding for all branches of power.

Imagine the concept. All laws that are duly enacted must be carried out by the Executive Branch, and if they are not a supreme authority will step in and order the executive to carry out his responsibiliy.

There is more than a little irony in this story for us in the United States, having endured for seven years a President who believes that he only needs comply with laws he agrees with. There is further irony in the swiftness and decisiveness of the action overriding the Iranian executive's disobedience to the law compared with the dilatory and obsequious behavior of our Supreme Court.

But there is arguably a more important aspect to this story. It seems that when our intelligence community issued a National Intelligence Estimate finding that Iran had stopped it's nuclear weapons program in 2003, it didn't just chill the war mongers in our country. It had the same effect in Iran.

To the surprise on no one who has been paying attention, Ahmadinejad has been spouting his anti-U.S, rhetoric primarily for domestic consumption. By building up the threat of the United States he has been able to rally the populace behind the nationalistic desire for self defense and keep his domestic critics at bay. But the Parliament, the populace , and Khamenie have grown weary of the President and his tactics.

Reports from inside Iran suggest Khamenei has grown increasingly disenchanted with Ahmadinejad's economic record, which has been marked by surging inflation and dramatic rises in basic food and housing costs.

In the past, Khamenie has cautioned against criticism of the President in the interests of national unity in the face of the threat of a US attack. Well, the NIE changed that. The NIE

appeared to ease the threat of American military strikes against Iran's uranium enrichment activities, which Ahmadinejad had used to silence opponents and clamp down on domestic dissent.

The diminishing external threat appears to have emboldened the president's opponents in the run up to parliamentary elections on March 14. It may also have removed the need for Khamenei to keep his displeasure quiet.

Imagine that. A leader trying to use fear as a tool of governance to keep his people cowed. Only in Iran, I guess.

Seriously, it appears the NIE did much more that just force the Bush Administration to scale back it's war talk and fear mongering in the United States. It also seems to have enabled more moderate elements in Iran to find their voice. And almost coincidentally it helped Iranians desperately in need of heating assistance this winter find some relief. Who would have thought that one little intelligence document could do so much.

Another Principled JAG Officer Resigns Over Bush Torture Policy

Lieutenant Commander Andrew Williams resigned his commission and ended his service as an officer in the Judge Advocate General's Corps because of this Administrations torture policies. In a letter to the Peninsula Gateway explaining his decision, Williams said

There was a time when I served with pride, knowing that by serving with the finest men and women in the country, we were part of an organization whose core values required us to “do the right thing,” and that we were far different from the Soviet Union and its gulags, the Vietcong with their torture camps and a society of surveillance and informers like Nazi Germany.

We were part of the shining light on the hill who didn’t do those things. Sadly, no more.

According to an article in the Peninsula Gateway Williams began his service in 1991 and served aboard the Carrier Nimitz before becoming a reserve officer in 1995. His decision did not come suddenly, but, for him, was finally compelled by the testimony of General Thomas Hartmann, the head of the Military Commissions, who refused to condemn water torture. Specifically, Hartmann refused to say that an enemy who subjected U.S. troops to the practice should be prosecuted for that crimes.

This incredible revelation came out in a Senate Hearing with this exchange between Hartmann and Lindsey Graham,

GRAHAM: You mean you’re not equipped to give a legal opinion as to whether or not Iranian military waterboarding, secret security agents waterboarding downed airmen is a violation of the Geneva Convention?

HARTMANN: I am not prepared to answer that question, Senator.

While the history of this torture and past prosecutions has been detailed before, this is how it was summarized by Commander Williams

Thank you, General Hartmann, for finally admitting the United States is now part of a long tradition of torturers going back to the Inquisition.

In the middle ages, the Inquisition called waterboarding “toca” and used it with great success. In colonial times, it was used by the Dutch East India Company during the Amboyna Massacre of 1623.

Waterboarding was used by the Nazi Gestapo and the feared Japanese Kempeitai. In World War II, our grandfathers had the wisdom to convict Japanese Officer Yukio Asano of waterboarding and other torture practices in 1947, giving him 15 years hard labor.

Waterboarding was practiced by the Khmer Rouge at the infamous Tuol Sleng prison. Most recently, the U.S. Army court martialed a soldier for the practice in 1968 during the Vietnam conflict.

He concluded by saying,

General Hartmann, following orders was not an excuse for anyone put on trial in Nuremberg, and it will not be an excuse for you or your superiors, either.

We all know why the minions in Bushco cannot admit that waterboarding is torture. They have sanctioned this and other forms of torture and know they can be prosecuted for their actions. That is the only reason why clowns like Hartmann get up and make fools of themselves by denying the obvious. That is why they have invented terms like "harsh" and "enhanced" interrogation techniques. They think this Orwellian speak will change the underlying fact that they have broken the law. Even Lindsey Graham, that on and off torture gadfly, has their number on this issue. Speaking about water boarding,

Sen. Graham, a former military judge advocate, has said before that someone doesn’t “have to have a lot of knowledge about the law to understand this technique violates Geneva Convention Common Article Three.”

This sorry episode in American history will come to an end, of that I am sure. I suspect we will not see prosecutions and certainly not of the high officials going up to Bush who authorized this criminal activity. But I do think we will get an accounting. Our dirty laundry must be aired and our nation must resolve never to do this again. There is no defense of this country at the expense of the Constitution. The Constitution is who we are. The moment we forget that we have lost our national soul, the one thing that is worth defending.

As we await the hoped for day of reckoning, we should salute courageous JAG officers like Commander Williams who are refusing to accept these abuses on their watch.

Water Torture, Gonzales, And The Japanese Prisoners We Convicted.

At his hearing today Alberto Gonzales once again refused to find anything wrong with water boarding and made clear that it certainly wasn't torture. In addition to knowing precious little about the law, Gonzales is also ignorant of the history of water torture. The Senators should have reminded him of the Japanese soldiers convicted by U.S. and other tribunals for using water torture against allied soldiers during WW II.

During his testimony, Gonzales had this to say when asked why the President's July 20th Executive Order did not include water boarding in the list of prohibited acts,

"[S]ome acts are clearly beyond the pale, and that everyone would agree should be prohibited, . . . There are certain other activities where it is not so clear, Senator."

Well Mr. Esteemed Attorney General, I'd like to introduce you to Mssrs. Yuki, Hata, Asano, Kita and Nakamura, just a few of the many Japanese soldiers who were convicted at the end of WWII of the war crime of water boarding.

There is a very comprehensive article on the history of water torture by Evan Wallach entitled, DROP BY DROP: FORGETTING THE HISTORY OF WATER TORTURE IN U.S. COURTS, which details what the U.S. has learned and forgotten, and learned and forgotten again about this this evil form of torture.

But first to the basics. Though it goes by many names such as "water cure," "water boarding," "water torture," and "water rag," the

technique has long been prized by extreme interrogators for its unique combination of severe mental trauma and physical pain with, unlike other methods, a lack of perceivable physical trauma short of autopsy

How do the victims of it feel? From the testimony of CPT Chase Jay Neilson, one of the Dolittle raiders who was captured by the Japanese,

Q: Did the questioners threaten you with any other treatment while you were being questioned?

A: Yes, I was given several types of torture.... I was given what they call the water cure.* * *

Q: What was your sensation when they were pouring water..., what did you physically feel?

A: Well, I felt more or less like I was drowning, just gasping between life and death.

And how did his torturers achieve this effect, this feeling of drowning?

Well, I was put on my back on the floor with my arms and legs stretched out, one guard holding each limb. The towel was wrapped around my face and put across my face and water poured on. They poured water on this towel until I was almost unconscious from strangulation, then they would let up until I’d get my breath, then they’d start over again.

This is the testimony of Ramon Lavarro, a Philippine lawyer subjected to torture, at the war crimes trial of Sergeant Major Yuki,

Q: And then did he take you back to your room?

A: When Yuki could not get anything out of me he wanted the interpreter to place me down below and I was told by Yuki to take off all my clothes so what I did was to take off my clothes as ordered. I was ordered to lay on a bench and Yuki tied my feet, hands and neck to that bench lying with my face upward. After I was tied to the bench Yuki placed some cloth on my face and then with water from the faucet they poured on me until I became unconscious. He repeated that four or five times.

COL KEELEY: You mean he brought water and poured water down your throat?

A: No sir, on my face, until I became unconscious. We were lying that way with some cloth on my face and then Yuki poured water on my face continuously.

COL KEELEY: And you couldn’t breath?

A: No, I could not and so I for a time lost consciousness. I found my consciousness came back again and found Yuki was sitting on my stomach and then I vomited the water from my stomach and the consciousness came back again for me.

Q: Where did the water come out when he sat on your stomach?

A” From my mouth and all openings of my face...and then Yuki would repeat the same treatment and the same procedure to me until I became unconscious again.

Q: How many times did that happen?

A: Around four or five times from two o’clock up to four o’clock in the afternoon. When I was not able to endure his punishment which I received I told a lie to Yuki....I could not really show anything to Yuki because I was really lying just to stop the torture...

The defendant in this case, Chinsaku Yuki, was convicted and sentenced to life in prison.

Here is a summary of the testimony of American POWs Burton, Armitage, Cash, and Woodall at the trial of their Japanese captors.

The witnesses’ descriptions painted a grim portrait of the treatment meted out to POWs, and of the use of water torture as a primary means of interrogation.

He was turned upside down and water poured up his nose and beaten into unconsciousness.62

...they would lash me to a stretcher then prop me up against a table with my head down. They would then pour about two gallons of water from a pitcher into my nose and mouth until I lost consciousness...63

...they laid me out on a stretcher and strapped me on. The stretcher was then stood on end with my head almost touching the floor and my feet in the air.... They then began pouring water over my face and at times it was almost impossible for me to breath without sucking in water.64

[We] were strapped to stretchers and warm water poured down our nostrils until we were about ready to pass out.65

[They] strapped him to a stretcher and elevated his feet and then poured on his face so
that it was almost impossible for him to get his breath.66

[The victim] was then taken into the corridor, strapped to a stretcher, which was tilted so that his head was toward the floor and feet resting on a nearby sink. Water was then poured down his nose and mouth for about twenty minutes...67

...they stood them on their heads until they almost choked.

There were four japanese defendants in these cases. Hata was convicted and sentenced to twenty-five years in prison. Nakamura received twenty years and Asano and Kita each received fifteen year sentences.

The use of water torture was not unique to the Japanese in WWII. It has a long and sordid history over the centuries and the United States has participated in this gruesome history. But there is a different between our use of this torture in the past versus our use of it under Bush. In the past it was never sanctioned as government policy and americans were prosecuted for using it. Now, under Bush, it is a sanctioned technique that is used without shame or conscience.

During the Philippine Insurrection, the war following the Spanish American War, Americans were awakened to the brutality of the conduct of some our troops against the Philippinos who were called guerillas, or patriots, depending on which side you were on.

The Spanish-American war was remarkably similar to the Iraq war in several key respects. Both wars were sold to the public on the basis of jingoistic propaganda and lies, instigated and/or promoted by the Administration and the press. Both wars were advertised as short military adventures that would be victorious in short order. Both wars metamorphosed from the conflict initially advertised into guerilla campaigns fought by people who viewed the Americans as occupiers. And in both wars, the United States used water torture against its enemy. There is one difference. In the Philippine war there was general, though not universal, public and congressional revulsion against the tactics used and senior officers were held accountable, including a General. In Iraq, the administration sanctioned the use of torture, without naming it so, and specifically embraced the use of water boarding.

As summarized by Evan Wallach

The United States has largely forgotten its adventure in the Philippines, but at the time the U.S. occupation was highly controversial at home, not least, because of allegations of misconduct by American troops. Eventually, courts-martial reached as high as a general officer, left the93 administration facing congressional inquiries, and the public with a sour after taste from its “splendid little war.” One highly publicized aspect of that misconduct was the “water cure.”94

Testifying before Congress, the U.S. Administrator in the Philippines, William Howard Taft (later President and Supreme Court Justice) conceded that the “water cure” had been used as a questioning technique. The testimony coincided with publication of a soldier’s letter home95 boasting of use of the water cure on Filipino insurgents.96

There was ample testimony presented to the Senate Committee regarding the abuses in the Philippines.

Another witness, former Private Edward Norton “...described in one instance where he had assisted in ‘water-curing a native. The man’s mouth, he said, was forced open with a stick and the water poured down his throat. The effect of the treatment was temporary strangulation. In this particular case, he said, the native after receiving the cure delivered up a number of rifles and pistols.104

Another former soldier, First Lieutenant Grover Flint testified he has been a witness to at least twenty applications of the water cure. Flint sated he had never seen anyone die as a result although he had seen a prisoner rendered unconscious, and that “...in some cases where it was given to old men he had seen their teeth fall out.105

Still another ex-enlisted man, L.E. Hallock “...told of the infliction of the cure upon a dozen natives...He said they were captured and tortured in order to secure information of the murder of [an American soldier who was tortured before his death]. When asked the effect of the treatment, he testified that “The stomach would swell up, and in some cases I witnessed blood come from the mouth.”106

Initially, Secretary of War Elihu Root had denied all the allegations of abuse. However, less than two months later, Secretary Root had substantially changed his position. In light of the testimony that had been presented to the Senate Committee, he directed the Judge Advocate General of the Army to take proper steps, and he directed the Army commander in the Philippines that ”... nothing can justify or will be held to justify the use of torture or inhuman conduct of any kind on the part of the American Army. "

Root issued the following directive to the commander of U.S. troops in the Philippines on behalf of president Roosevelt.

The President desires to know in the fullest and most circumstantial manner, all the facts, nothing being concealed and no man being for any reason favored or shielded. For the very reason that the President intends to back up the army in the heartiest fashion in every lawful and legitimate method of doing its work he also intends to see that the most rigorous care is exercised to detect and prevent any cruelty or brutality, and that the men who are guilty thereof are punished. Great as the provocation has been in dealing with foes who habitually resort to treachery, murder and torture against our men, nothing can justify or will be held to justify the use of torture or inhuman conduct of any kind on the part of the American Army.

From that point on water torture was prohibited as a matter of U.S. policy. Yes, there were instances when it was subsequently used by U.S. troops, particularly in Viet Nam, but not with the sanction of the President. That is of course until now. We have a President, Vice President, Attorney General and their many enablers, not the least of which being torture man John Yoo who embrace water torture.

In todays hearing Gonzales was asked a question about the Executive Order, specifically paragraph (E), which enumerates certain prohibited practices.

(E) willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or

When asked why the order could enumerate these odious practices and leave water boarding unmentioned, he made clear it was not an oversight. According to him, water torture, a practice that the United States has condemned, a practice that we have tried and convicted enemy soldiers for and sentenced them to up to life in prison, is not "clearly beyond the pale." It is not something that "everybody would agree should be prohibited."

With all due respect, Mssrs. Bush, Cheney, Gonzales and Yoo, your opinions are beyond the pale. You lack the decency of ordinary human beings and deserve to be reviled now and for all time.

Cheney Ignored The Constitution, Again

Dick Cheney addressed the Graduates of the United States Military Academy, West Point, Friday and delivered a speech that was was largely forgettable but had some odious passages thrown in. The speech was front paged by BarbinMD on DailyKos Friday and received considerable attention. There was one thing that was not mentioned in the article but that picked up by several commenters that continues to churn inside me. Cheney forgot to mention the Constitution.

The Vice President's speech concluded with this passage.

On your first day of Army life, each one of you raised your right hand and took an oath. And you will swear again today to defend the United States against all enemies, foreign and domestic. That is your vow, that is the business you're in.

There is one huge problem with what he said. No member of the military or, for that matter, no civilian Federal employee swears an oath to protect the United States. Not Dick, not Bush, and certainly not these new Army officers. All military personnel take the following oath contained in 5 USC 3331.

“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter.”

"Support and defend the Constitution of the United States. The Constitution. The critical word in the oath of office, the word that gives meaning to the oath, the entire focus of the oath was nowhere to be found in Cheney's speech. It is unlikely Cheney's omission was a mere oversight. However, before discussing that, the following background information regarding the oath will make clear why every Federal office holder swears an oath to protect and defend the Constitution, and not the "Nation", the 'People" or the "President."

There are two provisions in the Constitution relating to the oath of office. Article II, which establishes the Office of the President, requires each President to swear an oath to -

"preserve, protect, and defend the Constitution of the United States."

Article VI contains the oath requirement that applies to all other government officials, whether in the legislative, executive, or judicial branches or the military. That provision states simply that each Federal official "shall be bound by oath of affirmation to support the Constitution." That Article VI requirement was implemented in the first law passed by the first Congress which contained the following simple oath: "I do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States." While that initial language has been amended over the years the language adopted in 1884 is the same as we have today.

It has been written on more than one occasion, including here, that Bush does not remember or maybe never knew that he swore an oath to preserve, protect and defend the Constitution. But most of his statements were off the cuff remarks or answers to questions, where his inarticulateness is legend. Such was not the case with Cheney. His misstatement was deliberate. We know that because it is contained in the written text of his remarks that are posted on the White House web site. It is possible that he is the victim of incompetent staff work or his own incompetence in failing to recognize the mistake in his text, but there is ample reason to believe otherwise.

Cheney's words seems to be another affirmation of his disdain for the Constitution. We have seen that disdain in his disregard for the basic liberties enshrined in the Constitution. Provisions such as the guarantees of due process, habeas corpus, freedom of speech and assembly, and prohibitions against warrantless searches and seizures are alien to him. Similarly the checks and balances in the Constitution, particularly those that subject the powers of the President to the will of the people as expressed through their Congressional representatives carry no weight in his mind, a mind that sees all power consolidated in a unitary executive.

His vision would be anathema to the Founders and is repugnant to any patriot today. The founders rebelled literally and figuratively from a country where we would owe allegiance to a ruler, or his party, or to the administration in power. Their feelings on this score were clear and unambiguous. They required that those who swear the oath, owe their allegiance to only one thing, the Constitution. That allegiance requires them to ensure that the rights of the people enshrined in the Constitution and the duties and responsibilities of the governmental institutions created by that document are protected from any person who would seek to deny those rights or subvert those institutions. It is a simple oath, but its significance cannot be overstated.

We do not serve the government or this Administration, we serve the Constitution. And only by doing so can we ever hope that the government will be true not only to the letter of the document, but also to the principles embodied in the Preamble.

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

All of those principles are important. But in this era, three stand out - Establish Justice, Promote the General Welfare, and Ensure the Blessings of Liberty to Ourselves and Our Posterity.

Dick doesn't agree with that and by deleting the Constitution from his speech he is hoping we will forget.

Crossposted at Never In Our Names.

Please Support Senator Harkin's Bill To Close Guantanamo In 120 Days

The ACLU just sent an advisory that Senator Tom Harkin has introduced a bill that would require the Guantanamo prison/torture center, also known as America's Shame, to be closed within 120 days after enactment.

Now is a more critical time than ever to have our voices heard on the question of torture and America's Shame. At the last Republican Candidates Presidential debate only one candidate, McCain, spoke out against torture and he was greeted with thunderous silence. Those who spoke in favor of torture were greeted with deafening applause accompanied whoops and hollers. These sniveling traitors to the Constitution included Guiliani who said he would do "anything" to get information, Romney who would  "double the size of Guantanamo, and Tancredo who pleaded for help from Jack Bauer.

Here’s a summary of what the bill does:

• It requires the President to close the Guantanamo Bay detention facility within 120 days of enactment.
 
• Within 120 days of enactment, the detainees will be either sent to the United States Disciplinary Barracks at Fort Leavenworth to await trial or serve their sentences or transferred to another country that will not torture, abuse, or otherwise persecute the detainee.
 
• For each detainee being held at Guantanamo Bay, the government will have 120 days to either charge the detainee with a federal crime or transfer him to his home country or another country, provided they will not engage in tortured, abused, or persecuted. The government may have an additional renewal period of 120 days to hold the detainee if it is preparing charges and has a logistical need for additional time.
 
• The bill ends the practice of indefinite detention without charge of hundreds of detainees--most who have been held more than four years, and many who have been held more than five years without charge and without even knowing the reason that they are being held.
 
• The detainees who are charged will be detained in the military prison at Fort Leavenworth while awaiting trial, during trial, and during their sentences.  This is the military's prison specifically designated, designed, and built by the Defense Department to hold national security prisioners.

The bill will provide additional funds to prosecute and defend cases brought against the detainees, and for costs incurred by the government or the region in transferring or detaining prisoners.

Please go to the ACLU website above, or any other place, to urge your Senators to support this bill.

Bush's Bodacious Band Of Buffoons

Ever wonder why Muqtada al-Sadr doesn't seem to care much for our Iraq policy or our occupation? An article in the Independent gives us a pretty good hint. In 2004, we tried to asasinate him.

It all started back in August 2004 when Mr Sadr and his Mehdi Army militiamen were besieged by US Marines in Najaf, south of Baghdad. The story is told by the current Iraqi National Security Adviser, Dr Mowaffaq Rubai'e

Dr Rubai'e had gone to Najaf in August 2004 to try to mediate an end to the fighting. He met Mr Sadr who agreed to a set of conditions to end the crisis. "He actually signed the agreement with his own handwriting," said Dr Rubai'e. "He wanted the inner Najaf, the old city, around the shrine to be treated like the Vatican."

But when Dr. Rubai'e returned to Bahgdad, Prime Minister Alawi instructed him to return to Najaf to get a final document signed and the signing was to occur in a particular house.

As told by Rubai'e,

It was agreed that the last meeting would take place in the house in Najaf of Muqtada's father Mohammed Sadiq al-Sadr who had been murdered by Saddam's gunmen with two of his sons five years before. Dr Rubai'e and other mediators started for the house. As they did so they saw the US Marines open up an intense bombardment of the house and US Special Forces also heading for it. But the attack was a few minutes premature. Mr Sadr was not yet in the house and managed to escape.

Although Dr Rubai'e, as Iraqi National Security Adviser since 2004 and earlier a member of the Iraqi Governing Council, is closely associated with the American authorities in Baghdad, he has no doubt about what happened.

He sees the negotiations as part of a charade to lure Mr Sadr, who is normally very careful about his own security, to a house where he could be eliminated.

Every time we hear of Bush's incompetence in beginning and prosecuting this Fiasco we think we've heard the last of it. But as of today, this may take the cake. Anyone who knew his butt from first base knew that al Sadr had taken on the mantle of his father, a powerful Shiite cleric, who, along with two of his sons, had been assassinated by Saddam in 1999. Those murders by Saddam had provoked widespread civil unrest in Iraq. And small wonder. The Sadrist movement was a powerful force that was a blend of "nationalism, religion and populism proved highly attractive to Iraqi Shia, particularly to the very poor." That movement surfaced out into the open after Saddam's overthrow.

Unfortunately, Bush and his bodacious band of buffoons didn't know any of this. So, like Saddam before him, Bush decided the Sadr organization had to be crushed, either by defeating it militarily or killing it's leader. To our great leader this would have sounded like an easy task. After all, we had overthrown Saddam a year earlier in a "cake walk" and only had a few "dead enders" to deal with before we could complete the building of Iowa on the Euphrates. Clearly the Iraqis loved us, and all this silly talk of inter-sectarian rivalries and animosity was the talk of people who were far two negative. And the idea of intra-sectarian rivalries, for instance between different Shia factions, was too preposterous to contemplate. The leader of Iraq was our guy Alawi, who was a Shia just like Sadr. That was good enough for us. Sadr or anyone else who opposed him was obviously a marginal figure and traitor who had to be dealt with forcibly. If he died, all the better. His coterie of hangers on would soon disappear.

It is possible that the plan to kill Sadr did not originate with the Americans but rather with Alawi. But that is almost a distinction without a difference since Alawi was our hand picked interim President. What is undeniable, given the role of the U.S. military in this botched episode, is that we actively tried to kill him. Some suggest we may have wanted to capture him, but the weaponry we used doesn't suggest that.) In any event, we failed and Sadr laid the blame at our doorstep.

And the consequence of this botched assassination attempt are still with us.

Dr Rubai'e said: "I know him very well and I think his suspicion and distrust of the coalition and any foreigner is really deep-rooted," and dates from what happened in Najaf. He notes that after it had happened Mr Sadr occupied the shrine of Imam Ali in Najaf as a place of refuge.

There is little doubt that if the U.S. had succeeded in killing Sadr in 2004, the civil war would have begun in earnest much sooner than it did. But since Bush was too dumb to see what he had set in motion when he unleashed the dogs of war in March, 2003, he could not possibly understand the consequence of killing a major Shia leader right after overthrowing the Sunni leader, Hussein. Might as well have the whole country hate us.

When, oh when, will we be rid of these morons?