Friday, June 18, 2004

Lie Big or Go Home


The New York Times reports that President Bush, a day after reiterating his apparently baseless assertions of a working relationship between Iraq and Al Qaeda, argued that 9/11 attacks justified the Iraq war:

Today, as he stood before a sea of uniformed soldiers, Mr. Bush said over and over again that 9/11 was the reason the United States had to go to war in Iraq more than a year ago.

Why does the President keep doing this? Because he's got nothing left.

I realize that many people are outraged at the baldfaced nature of the President's and Vice President's increasingly blatant prevarications. But in the coming months no one should expect that the President will back away from his insinuations about Saddam/Al-Qaeda connections. Indeed, he will keep trying to connect the Iraq war to the 9/11 attacks in every way possible. He will simply continually redefine his terms to reach his desired conclusion. If the 9/11 Commission says there was no collaboration between Iraq and Al Qaeda, he will say that the Commission agreed that there were "contacts," even if those contacts occurred years ago and didn't lead to anything.

Of course, on this theory of "contacts," John Kerry would be in cahoots with George W. Bush, since they've had numerous contacts over the years. Indeed, we probably have greater reason to declare war on members of the Reagan Administration, who had numerous contacts with Saddam, some of which led to actual cooperation.

The President knows that his Presidency is going down the drain. Desperate times call for desperate measures. His Administration is already deeply morally compromised; why should he scruple to be honest at this point?

Thursday, June 17, 2004

Radioactive Judicial Candidates


One of the little noted side effects of the Iraq war is that the Administration's eagerness to remove legal constraints from its interrogation of detainees in Iraq, Afghanistan, and Guantanamo Bay may well have torpedoed the chances of a number of Administration lawyers to become federal judges or Justices on the Supreme Court. These ambitious people may well have thought that doing the Administration's bidding would propel them into judicial office. In the case of Jay Bybee, who now sits on the 9th Circuit Court of appeals, the strategy worked. But that was before the Abu Ghraib scandals and the release of the OLC and Defense Department torture memos. Bush Administation lawyers who can be found to have participated in any way with these decisions are probably radioactive. Their judicial prospects are pretty much destroyed.

One of the most interesting examples is Alberto Gonzales, the President's counsel. People have long assumed that Gonzales, who would have been the first Latino nominee, was at the top of the list for any future Supreme Court appointment. But Gonzales' participation in memos attempting to escape the obligations of American and international law means that the Bush Administration would face a very lengthy confirmation battle if it tried to nominate him. Even if Bush wins a second term, the torture memo will give Democrats (and many Republicans) ample reason to oppose him.

There is a bit of poetic justice in this result. The torture memos, I firmly believe, show the corrupting influence of power, and the desire to advance one's political career by casting aside professional pride and telling one's superiors that they can do whatever they like, no matter how base or unjust it may be. In the Bush Administration, ambition and syncophancy have trimphed over professionalism, sound judgement and moral seriousness. The corruptions of power have brought us to a sorry spectacle in which intelligent lawyers, many with impeccable credentials, have argued vigorously for an Imperial Presidency that is above the law and for the right to abuse and torture fellow human beings. This failure of moral imagination and professional scruple makes the participants unfit for judicial office, and no one should hesitate in saying so. Put another way, if the torture memos have made these very bright and talented lawyers radioactive, it couldn't have happened to a nicer bunch of guys.

Senate Violates Constitution, Tells President He May Not Torture


From the Atlanta Journal Constitution:

The Senate, on a swift voice vote, approved an amendment to the defense authorization bill restating U.S. opposition to using torture and requiring the Pentagon to provide Congress with the guidelines it uses to ensure compliance with that principle.

This is in clear defiance of the profound and scholarly interpretation of our Constitution provided by the Office of Legal Counsel and the Defense Department. As the Defense Department memo puts it, "Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to detect troop movements on the field." "Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President."

Bad Senate. Very Bad! You should be ashamed of yourself for preventing our Commander-in-Chief from torturing people. Don't you have any respect for the Constitution? The President always knows best. Repeat after me: The President always knows best.

Wednesday, June 16, 2004

Lies and the Desperate Liars Who Tell Them



President Bush yesterday defended Vice President Dick Cheney's assertion this week that Saddam Hussein had longstanding ties with Al Qaeda, even as critics charged that the White House had no new proof of a connection.

At a news conference with Afghan president Hamid Karzai, Bush stood by his vice president, saying Hussein ''had ties to terrorist organizations," though he did not specifically mention Al Qaeda. . . .

Bush has previously said there was ''no evidence" linking Hussein to the Sept. 11, 2001, attacks, but he and other members of his administration have continued to say they believe there were ties between Hussein and Al Qaeda. In a speech to the conservative Madison Institute in Orlando on Monday, Cheney called Hussein ''a patron of terrorism" and said ''he had long established ties with Al Qaeda."

An April poll by the University of Maryland's Program on International Policy Attitudes found that 57 percent of Americans surveyed believed that Iraq was helping Al Qaeda before the war, including 20 percent who believed Iraq was linked to the Sept. 11 attacks.

However, a former top weapons inspector said yesterday he and other investigators have not found evidence of a Hussein-Al Qaeda link.

''At various times Al Qaeda people came through Baghdad and in some cases resided there," said David Kay, former head of the CIA's Iraq Survey Group, which searched for Iraqi weapons of mass destruction and links to terrorism. ''But we simply did not find any evidence of extensive links with Al Qaeda, or for that matter any real links at all."

''Cheney's speech is evidence-free," Kay said. ''It is an assertion, but doesn't say why we should be believe this now."

Cheney's comments Monday echoed a January interview with National Public Radio in which he said, ''There's overwhelming evidence there was a connection between Al Qaeda and the Iraqi government. I am very confident that there was an established relationship there."

WASHINGTON -- Bluntly contradicting the Bush administration, the commission investigating the Sept. 11 attacks reported Wednesday there was "no credible evidence" that Saddam Hussein helped al-Qaida target the United States. . . .

Bin Laden made overtures to Saddam for assistance, the commission said in the staff report, as he did with leaders in Sudan, Iran, Afghanistan and elsewhere as he sought to build an Islamic army.

While Saddam dispatched a senior Iraqi intelligence official to Sudan to meet with bin Laden in 1994, the commission said it had not turned up evidence of a "collaborative relationship." . . .

The Iraq connection long suggested by administration officials gained no currency in the report.

"Bin Laden is said to have requested space to establish training camps, as well as assistance in procuring weapons, but Iraq apparently never responded," the report said. "There have been reports that contacts between Iraq and al-Qaida also occurred" after bin Laden moved his operations to Afghanistan in 1996, "but they do not appear to have resulted in a collaborative relationship," it said.

"Two senior bin Laden associates have adamantly denied that any ties existed between al-Qaida and Iraq," the report said.

Will the issuance of the report cause Dick Cheney to change his tune? Don't bet on it. The President is still behind in the polls.

Tuesday, June 15, 2004

Karpinski: I Was Ordered to Treat Prisoners Like Dogs


The BBC reports that General Janice Karpinski says her superiors ordered her to treat prisoners like dogs, just like they were treated at the Guantanamo Bay naval base.

The US commander at the centre of the Iraqi prisoner scandal says she was told to treat detainees like dogs.

Brig Gen Janis Karpinski told the BBC she was being made a "convenient scapegoat" for abuse ordered by others.

Top US commander for Iraq, Gen Ricardo Sanchez, should be asked what he knew about the abuse, she told BBC Radio 4's On The Ropes programme. . . .

Gen Karpinski said more damaging information was likely to emerge at those trials.

Gen Karpinski was in charge of the military police unit that ran Abu Ghraib and other prisons when the abuses were committed. She has been suspended but not charged. . . .

Gen Karpinski said military intelligence took over part of the Abu Ghraib jail to "Gitmoize" their interrogations - make them more like what was happening in the US detention camp at Guantanamo Bay, Cuba, which is nicknamed "Gitmo".

She said current Iraqi prisons chief Maj Gen Geoffrey Miller - who was in charge at Guantanamo Bay - visited her in Baghdad and said: "At Guantanamo Bay we learned that the prisoners have to earn every single thing that they have."

"He said they are like dogs and if you allow them to believe at any point that they are more than a dog then you've lost control of them."

Gen Karpinski repeated that she knew nothing of the humiliation and torture of Iraq prisoners that was going on inside Abu Ghraib - she was made a scapegoat.

Remember that Karpinski is trying to direct blame away from herself, so it is only natural that she would place blame on higher ups. Nevertheless, her charges are serious and need to be investigated thoroughly.

Monday, June 14, 2004

Thank God It's Standing


Today the Supreme Court rejected Michael Newdow's challenge to public school teachers leading the Pledge of Allegiance using the words "under God." The Court held that Newdow did not have standing to raise the issue on behalf of his daughter. The Washington Post has the story. The text of the opinion is available here.

This is exactly what I hoped the Court would do. I wanted them to avoid a decision on the merits because the legal claims on the merits are very difficult indeed. Here are two discussions in February 2003 and March of this year. However, as I said in this post, despite the fact that the law is largely on his side "If Newdow wins his case, it will prove that atheism is wrong, because it's going to take a miracle." The Supreme Court today proved me right, holding against Newdow without badly mangling the law of the Establishment Clause. (The law of standing, on the other hand, is already so badly mangled that it's hard to see what more damage they could possibly do to it.)

Justice John Paul Stevens wrote the majority opinon. Chief Justice William Rehnquist, joined by Justices O'Connor and Thomas, also wrote to state their view that the recitation of the "under God" version of the Pledge does not violate the Constitution.

I'll have more when I get a chance to read the opinions.

UPDATE: Clarence Thomas uses the opportunity to argue that the Establishment Clause should not be held applicable to the States. Now we know what it would be like to have Judge Roy Moore on the Supreme Court.

It's Official: Bush Administration Received Legal Advice Permitting Torture


Today the Washington Post published a copy of the Aug. 1, 2002, memorandum "Re: Standards of Conduct for Interrogation under 18 U.S.C. 2340-2340A," from the Justice Department's Office of Legal Counsel for Alberto R. Gonzales, counsel to President Bush. The Memorandum was signed by Assistant Attorney General Jay S. Bybee, whom President Bush subsequently appointed to the 9th Circuit Court of Appeals.

The Gonzales/Bybee/OLC memo concludes that

under the circumstances of the current war against Al Qaeda and its allies, application of Section 2340A [a federal ban on torture] to interrogations undertaken persuant to the President's-Commander-in-Chief powers may be unconstitutional. Finally, even if an interrogation method might violate Section 2340A, necessity or self-defense could provide justifications that would eliminate any criminal liability.

Michael Froomkin analyzes the memo on his blog. The most important point is that this OLC memo is not a draft but official advice to the President. The OLC memo did not state that torture was wrong and that our government should not engage in it. Instead, it offered official advice about how to enagage in torture and escape criminal prosecution, or, in the alternative, to define prisoner abuse as not technically torture in order to escape criminal prosecution.

The Defense Department "torture memo" dated March 6, 2003 is from a Defense Department working group convened by Defense Secretary Donald H. Rumsfeld to come up with new interrogation guidelines for detainees at Guantanamo Bay, Cuba. It was first published by the Wall Street Journal. The torture memo is based on the Gonzalez/Bybee/OLC memo. The Gonzalez/Bybee/OLC memo is, if anything, even more damning to the Administration.

At hearings last week, Attorney General John Ashcroft refused to provide either memo to the Senate, while refusing to explain why or what legal privilege he was invoking to justify his actions.

Some Lawyers, Making a Difference


As a tonic to the embarassment of the Administration's torture memo, here's a New York Times story about litigation by Navy Lt. Cmdrs. Charles Swift and Philip Sundel, who have been challenging the Administration's detention policies. They have been ably assisted by Georgetown Law Professor Neal Katyal, who I am proud to say is a former student of mine (Thanks to Ann Bartow for the pointer).

Dance to the Constitution


You can download the text of the U.S. Constitution for your iPod, courtesy of the American Constitution Society. It's a great start, but it's only the beginning. Somebody needs to do a spoken version version on mp3s, with hip hop accompaniment. We the People, yo, check it out!

In the meantime, the Oyez Project has released mp3 files of famous Supreme Court arguments.

Sunday, June 13, 2004

A Few Bad Apples at the Top of the Barrel


According to this report from the London Telegraph (link via Mark Kleiman), the recent torture scandals may well be due to the misguided efforts of a few individuals. Unfortunately, they appear to be top political appointees in the Bush Administration:

New evidence that the physical abuse of detainees in Iraq and at Guantanamo Bay was authorised at the top of the Bush administration will emerge in Washington this week, adding further to pressure on the White House.

The Telegraph understands that four confidential Red Cross documents implicating senior Pentagon civilians in the Abu Ghraib scandal have been passed to an American television network, which is preparing to make them public shortly.

According to lawyers familiar with the Red Cross reports, they will contradict previous testimony by senior Pentagon officials who have claimed that the abuse in the Abu Ghraib prison was an isolated incident.

"There are some extremely damaging documents around, which link senior figures to the abuses," said Scott Horton, the former chairman of the New York Bar Association, who has been advising Pentagon lawyers unhappy at the administration's approach. "The biggest bombs in this case have yet to be dropped."

A string of leaked government memos over the past few days has revealed that President George W Bush was advised by Justice Department officials and the White House lawyer, Alberto Gonzalez, that Geneva Conventions on torture did not apply to "unlawful combatants", captured during the war on terror.

Members of Congress are now demanding access to all White House memos on interrogation techniques, a request so far refused by the United States attorney-general, John Ashcroft.

As the growing scandal threatens to undermine President Bush's re-election campaign, senior aides have acknowledged for the first time that the abuse of detainees can no longer be presented as the isolated acts of a handful of soldiers at the Abu Ghraib.

"It's now clear to everyone that there was a debate in the administration about how far interrogators could go," said a legal adviser to the Pentagon. "And the answer they came up with was 'pretty far'. Now that it's in the open, the administration is having to change that answer somewhat."

Moral Clarity


From the President's June 10th press conference:

Q Mr. President, the Justice Department issued an advisory opinion last year declaring that as Commander- in-Chief you have the authority to order any kind of interrogation techniques that are necessary to pursue the war on terror. Were you aware of this advisory opinion? Do you agree with it? And did you issue any such authorization at any time?

THE PRESIDENT: No, the authorization I issued, David, was that anything we did would conform to U.S. law and would be consistent with international treaty obligations. That's the message I gave our people.

Q Have you seen the memos?

THE PRESIDENT: I can't remember if I've seen the memo or not, but I gave those instructions.

. . . . .

Q Returning to the question of torture, if you knew a person was in U.S. custody and had specific information about an imminent terrorist attack that could kill hundreds or even thousands of Americans, would you authorize the use of any means necessary to get that information and to save those lives?

THE PRESIDENT: Jonathan, what I've authorized is that we stay within U.S. law.

. . . . .

Q Mr. President, I wanted to return to the question of torture. What we've learned from these memos this week is that the Department of Justice lawyers and the Pentagon lawyers have essentially worked out a way that U.S. officials can torture detainees without running afoul of the law. So when you say that you want the U.S. to adhere to international and U.S. laws, that's not very comforting. This is a moral question: Is torture ever justified?

THE PRESIDENT: Look, I'm going to say it one more time. If I -- maybe -- maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you. We're a nation of law. We adhere to laws. We have laws on the books. You might look at those laws, and that might provide comfort for you. And those were the instructions out of -- from me to the government.

. . . . .

Please note what the President did not say: He did not say (1) that we Americans do not engage in torture, (2) that torture is immoral, (3) that international and U.S. law does not permit it, or (4) that even if the law permitted it, which it does not, we would not engage in it.

Clearly, the President is setting a moral example for the members of his Administration and for the country as a whole. The problem is that it is a disgraceful example. He has used every trick in the book to avoid confronting his Administration's complicity, and he does not even have the moral courage to denounce the most blatant abuses of human rights. Instead, he merely asserts that his subordinates should follow the law, that is, whatever legal arguments they can come up with to defend whatever they want to do.

Is this the sort of principled stand that wins the hearts and minds of the rest of the world? The world already suspects us of moral hypocrisy. The President has merely given them additional reasons to do so.