Sanctioning Lawlessness

The Nation
By David Cole
October 23, 2006 issue]

In a decisive 1-0 decision Monday, President Bush voted to grant the president the constitutional power to grant himself additional powers.... Republicans fearful that the president's new power undermines their ability to grant him power have proposed a new law that would allow senators to permit him to grant himself power. --The Onion, August 1

It's so hard to be a satirist these days. When reality outstrips even The Onion, what's left for Jon Stewart? This summer, the Supreme Court issued a shot across the bow, decisively repudiating expansive executive authority to try "enemy combatants" in kangaroo courts as a violation of Congressional dictates and the Geneva Conventions. On September 28 Congress rewarded the President's lawlessness by giving him a blank check to do it some more. At the same time, it watered down criminal sanctions against abusive treatment of war prisoners and did everything it could to keep that pesky Supreme Court out of the picture, stripping the courts of jurisdiction. In essence, Congress responded to an executive branch that had thumbed its nose at Congress and the world by joining in. After all, what's more important: America's standing in the world and the rule of law, or partisan advantage in the midterm elections?

Under the rules struck down by the Supreme Court, "enemy combatants" could be tried and executed on the basis of coerced testimony, hearsay and classified evidence that the defendants had no meaningful way to confront. Under the Military Commissions Act, some marginally positive changes were made, but enemy combatants can still be tried and executed on the basis of coerced testimony, hearsay and classified evidence that the defendants have no meaningful way to confront. This time, however, Congress declared that its tribunal rules fully satisfy the Geneva Conventions, as if saying it makes it so. Just to make sure, Congress barred anyone from invoking the Geneva Conventions in court against the government or its officials. Instead of remedying the President's violations of international law, in other words, Congress chose to immunize the lawbreakers.

The new law also paves the way for the CIA to resume its practice of "disappearing" terror suspects into secret "black sites" and subjecting them to harsh interrogation tactics, including depriving them of sleep, forcing them to stand naked for long periods in frigidly cold rooms while periodically dousing them with cold water, and God knows what else. Senator John McCain, with his Republican colleagues Lindsey Graham and John Warner, made a big show of standing up to the Administration on this issue, but in the end it was little more than show. McCain has boasted that the new law prohibits torture and cruel and inhuman treatment of detainees. But federal law already made all such conduct a war crime. The new law actually weakens restrictions on abusive interrogations by narrowing what amounts to a war crime.

Taking a page from John Yoo, the author of the Justice Department's original torture memo, Congress has tortured language in order to clear room for the CIA to torture suspects. Just as Yoo interpreted the criminal torture ban narrowly so as to permit threats of death and infliction of any physical pain short of that associated with organ failure or death, so the new law makes it a crime to inflict "serious physical pain" on detainees, but defines "serious physical pain" as requiring both bodily injury and "extreme" physical pain, which sounds even more harsh than the "severe" physical pain that constitutes torture. McCain has trumpeted this law as a compromise--but the only thing it compromises is our commitment to the fundamental dignity of all human beings.

The law also neatly redefines the term "unlawful enemy combatant" in entirely circular terms, as anyone who "has been determined to be an unlawful enemy combatant" by a "competent tribunal" established by the President. Under this definition, if a military tribunal were to declare Kofi Annan an enemy combatant, he would be, because the law does not require that the person meet any objective criteria for the designation.

The new statute also radically restricts habeas corpus review, the traditional avenue for the imprisoned to challenge in court the legality of their detention. It also retroactively strips jurisdiction over all the Guantánamo cases now pending in the courts. Detainees are relegated to sharply limited review in the DC Circuit, which can only review the legal sufficiency of a Combatant Status Review Tribunal finding. Since the "enemy combatant" definition described above makes the tribunal's finding conclusive, however, this review is meaningless. If anyone whom the tribunal says is an enemy combatant thereby is one, there will be nothing for the DC Circuit to review. Moreover, the bar on habeas review means that suspects being tortured or otherwise abused have no recourse to the courts to challenge their treatment.

Finally, and perhaps most disturbing, these provisions for the most part apply only to foreign nationals accused of terrorist crimes and fighting for the enemy. There is no constitutional bar on trying citizens in military tribunals--so long as the tribunals meet fundamental demands of fairness. We did it as recently as World War II, and the Supreme Court upheld the practice. But as the Bush Administration knows, it's much easier to sell abusive power politically if one can assure citizens that their rights are not at stake.

In the end, even though Congress has done its best to give the President unfettered authority and to preclude judicial review, this law will be judged, first, by the Supreme Court, which is not likely to accept such grave inroads on the rule of law or its own power, and, more important, by the world at large. That is the community before which we will need to defend ourselves if we send Guantánamo detainees, even those who are admittedly "the worst of the worst," to their death through trials that fail to meet basic guarantees of fairness, preclude meaningful judicial review and allow the use of coercive interrogation. We are losing on the battlefield of world opinion. The Supreme Court's decision this past summer gave us a chance to turn the tide, but all too characteristically the political branches have squandered the opportunity.

http://www.thenation.com/doc/20061023/cole

               Waterboarding Historically Controversial
                           In 1947, the U.S. Called It a War Crime;
                     in 1968, It Reportedly Caused an Investigation

By Walter Pincus
Washington Post Staff Writer
October 5, 2006

Key senators say Congress has outlawed one of the most notorious detainee interrogation techniques -- "waterboarding," in which a prisoner feels near drowning. But the White House will not go that far, saying it would be wrong to tell terrorists which practices they might face.

Soldiers in Vietnam use the water-       Inside the CIA, waterboarding is cited as the
boarding technique on an uncoopera- technique that got Khalid Sheik Mohammed,
tive enemy suspect near Da Nang in    the prime plotter of the Sept. 11, 2001, terrorist
1968 to try to obtain information from  attacks, to begin to talk and provide information
 him. (United Press International)         -- though "not all of it reliable," a former
                                              senior intelligence official said.

Waterboarding is variously characterized as a powerful tool and a symbol of excess in the nation's fight against terrorists. But just what is waterboarding, and where does it fit in the arsenal of coercive interrogation techniques?

On Jan. 21, 1968, The Washington Post published a front-page photograph of a U.S. soldier supervising the questioning of a captured North Vietnamese soldier who is being held down as water was poured on his face while his nose and mouth were covered by a cloth. The picture, taken four days earlier near Da Nang, had a caption that said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk."

The article said the practice was "fairly common" in part because "those who practice it say it combines the advantages of being unpleasant enough to make people talk while still not causing permanent injury."

The picture reportedly led to an Army investigation.

Twenty-one years earlier, in 1947, the United States charged a Japanese officer, Yukio Asano, with war crimes for carrying out another form of waterboarding on a U.S. civilian. The subject was strapped on a stretcher that was tilted so that his feet were in the air and head near the floor, and small amounts of water were poured over his face, leaving him gasping for air until he agreed to talk.

"Asano was sentenced to 15 years of hard labor," Sen. Edward M. Kennedy (D-Mass.) told his colleagues last Thursday during the debate on military commissions legislation. "We punished people with 15 years of hard labor when waterboarding was used against Americans in World War II," he said.

A CIA interrogation training manual declassified 12 years ago, "KUBARK Counterintelligence Interrogation -- July 1963," outlined a procedure similar to waterboarding. Subjects were suspended in tanks of water wearing blackout masks that allowed for breathing. Within hours, the subjects felt tension and so-called environmental anxiety. "Providing relief for growing discomfort, the questioner assumes a benevolent role," the manual states.

The KUBARK manual was the product of more than a decade of research and testing, refining lessons learned from the Korean War, where U.S. airmen were subjected to a new type of "touchless torture" until they confessed to a bogus plan to use biological weapons against the North Koreans.

Used to train new interrogators, the handbook presented "basic information about coercive techniques available for use in the interrogation situation." When it comes to torture, however, the handbook advised that "the threat to inflict pain . . . can trigger fears more damaging than the immediate sensation of pain."
In the post-Vietnam period, the Navy SEALs and some Army Special Forces used a form of waterboarding with trainees to prepare them to resist interrogation if captured. The waterboarding proved so successful in breaking their will, says one former Navy captain familiar with the practice, "they stopped using it because it hurt morale."

After the Sept. 11, 2001, terror attacks, the interrogation world changed. Low-level Taliban and Arab fighters captured in Afghanistan provided little information, the former intelligence official said. When higher-level al-Qaeda operatives were captured, CIA interrogators sought authority to use more coercive methods.

These were cleared not only at the White House but also by the Justice Department and briefed to senior congressional officials, according to a statement released last month by the Office of the Director of National Intelligence. Waterboarding was one of the approved techniques.

When questions began to be raised last year about the handling of high-level detainees and Congress passed legislation barring torture, the handful of CIA interrogators and senior officials who authorized their actions became concerned that they might lose government support.

Passage last month of military commissions legislation provided retroactive legal protection to those who carried out waterboarding and other coercive interrogation techniques.

Soldiers in Vietnam use the waterboarding technique on an uncooperative enemy suspect near Da Nang in 1968 to try to obtain information from him. (United Press International)

                              Judge Plugs Bush Taps
          Nixes Warrantless Spying - Says U.s. Has 'No Kings'

By Kenneth R. Bazinet
New York Daily News
August 18, 2006

WASHINGTON - In a blow to the Bush administration, a federal judge ruled yesterday that its program of wiretapping Americans without a warrant is unconstitutional for multiple reasons - even if suspected terrorists are involved.

U.S. District Court Judge Anna Diggs Taylor ordered Team Bush to halt its "Terrorist Surveillance Program," but the plaintiff, the American Civil Liberties Union, agreed to delay the ban's enforcement until a hearing next month on a government request to allow the warrantless wiretaps to continue pending appeal to a higher court.

Taylor wrote that President Bush overstepped his authority and ruled the National Security Agency's program violates the Administrative Procedures Act, the doctrine of separation of powers, and the First and Fourth amendments to the Constitution.

"There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution," she wrote.

The White House immediately issued a statement saying, "We couldn't disagree more," and its GOP allies quickly tried to paint Taylor as a partisan judge. "Liberal judge backs Dem agenda to weaken national security," said a headline on a Republican National Committee press release.

Attorney General Alberto Gonzales threatened to appeal to the Supreme Court, if necessary, vowing, "We're going to do everything we can do in the courts to allow this program to continue."

But many legal scholars said the judge was right, arguing that her findings demonstrated the abuse of presidential power.

"This is a bad situation that just got worse for the White House," said George Washington University scholar Jonathan Turley.

"These crimes could constitute impeachable offenses," said Turley, who was an ally to independent counsel Kenneth Starr during the probe that led to the impeachment of President Bill Clinton.

Rep. Jerrold Nadler (D-Manhattan), the top Democrat on the House constitution subcommittee, said Bush had clearly broken the law with the warrantless wiretaps. "Our pursuit of the terrorists does not excuse clear violations of the law by the President or anyone else in the administration. No one is above the law," Nadler said.

In June, the administration was handed another major setback when the Supreme Court ruled that alleged terrorists held at Guantanamo Bay fall under the jurisdiction of the courts and not the military tribunals ordered by the White House.

Judge Strikes Down Secret Spy Program

Associated Press
New York Post
August 18, 2006

DETROIT - A federal judge yesterday ruled the government's warrantless surveillance program unconstitutional, and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates rights to free speech and privacy, as well as the separation of powers.

"Plaintiffs have prevailed, and the public interest is clear in this matter. It is the upholding of our Constitution," Taylor wrote in a 43-page opinion.

The Justice Department plans to appeal, and issued a statement calling the program "an essential tool for the intelligence community in the war on terror."

White House press secretary Tony Snow said the Bush administration "couldn't disagree more with this ruling."

"United States intelligence officials have confirmed that the program has helped stop terrorist attacks and saved American lives," he said. "The program is carefully administered and only targets international phone calls coming into or out of the United States, where one of the parties on the call is a suspected al Qaeda or affiliated terrorist."

The ruling won't take immediate effect so Taylor can hear a Justice Department request for a stay pending its appeal.

The American Civil Liberties Union filed the suit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. The government argued that the program is well within the president's authority.

                         Senators Argue Bush's Use of
                 Signing Statements Is Unconstitutional

By The Associated Press
New York Lawyer
June 28, 2006

Washington - The White House on Tuesday defended President Bush's frequent use of special statements that claim authority to limit the effects of bills he signs, saying the statements help him uphold the Constitution and defend national security.

Senators weren't so sure.

"It's a challenge to the plain language of the Constitution," said Arlen Specter, a Republican whose Senate Judiciary Committee opened hearings on the issue. "There is a sense that the president has taken signing statements far beyond the customary purview."

At the White House, Press Secretary Tony Snow said, "There's this notion that the president is committing acts of civil disobedience, and he's not. It's important for the president at least to express reservations about the constitutionality of certain provisions."

The bill-signing statements say Bush reserves a right to revise, interpret or disregard measures on national security and constitutional grounds. Some 110 statements have challenged about 750 statutes passed by Congress, according to numbers combined from White House and the Senate committee. They include documents revising or disregarding parts of legislation to ban torture of detainees and to renew the Patriot Act.

Snow said presidents from Dwight Eisenhower to Bill Clinton have issued such statements.

"The president has done the same thing that his predecessors have," he told reporters. "Presidents generally had the same concerns about defending the presidential prerogatives when it comes to national security."

In addition to Specter's objections, Democrats called the signing statements an example of the administration trying to expand executive power.

"I believe that this new use of signing statements is a means to undermine and weaken the law," said Sen. Dianne Feinstein of California. "If the president is going to have the power to nullify all or part of a statute, it should only be through veto authority that the president has authorized and can reject - rather than through a unilateral action taken outside the structures of our democracy."

Defending Bush, a Justice Department lawyer said the Sept. 11 terrorist attacks had made it prudent for the president to protect his powers with signing statements more than did his predecessors.

"Even if there is modest increase, let me just suggest that it be viewed in light of current events and Congress' response to those events," said lawyer Michelle Boardman. "The significance of legislation affecting national security has increased markedly since Sept. 11."

"Congress has been more active, the president has been more active," she added. "The separation of powers is working when we have this kind of dispute."

The exchange came during a midterm election year in which Specter, some fellow Republicans and many Democrats are highlighting concerns about the administration's use of executive power. Specter's personal list includes Bush's warrantless domestic wiretapping program, the administration's checking of phone records and the sending of officials to hearings but saying they cannot answer lawmakers' questions on national security grounds.

The session also was aimed at countering any influence Bush's signing statements may have on court decisions regarding the new laws. Courts can be expected to look to the legislature for intent, not the executive, said Sen. John Cornyn, R-Texas., a former state judge.

"The president is entitled to express his opinion. It's the courts that determine what the law is," he said. "I don't know why the issue of presidents issuing signing statements is controversial at all."

Specter and his allies maintain that Bush is trying an end-run around the veto process. In his presidency's sixth year, Bush has yet to issue a single veto, which could be overridden with a two-thirds majority in each house.

"The president is not required to," Boardman said.

"Of course he's not if he signs the bill," Specter snapped back.

Other presidents have used signing statements for administrative reasons, such as instructing an agency how to put a certain law into effect. They usually are inserted quietly into the federal record.

ABA Chief: Bush Sidestepping the Law

By Meredith Hobbs
Daily Report
New York Lawyer
June 23, 2006

ATLANTA -- Michael S. Greco, the president of the American Bar Association, is on a mission these days, warning the public of the danger that unchecked executive power poses to democracy. When I met him on Monday, he said President George Bush is becoming another King George III.

"We fought the Revolutionary War to get away from King George -- and we have another one who's acting like a king," Greco told me.

The State Bar of Georgia's presidents' boardroom, which has an inlaid-wood board table vast enough for roller skating, seemed an appropriate place to talk with Greco about presidential excess -- specifically Greco's concern that Bush is holding himself above the law.

Greco, who was in town for a meeting with the Georgia bar's board of governors, had invited me to the bar's office in the Federal Reserve's old building on Marietta Street to talk about his concerns. He'd just finished a lunch of chicken salad with Georgia Legal Services Program director Phyllis J. Holmen, who is on the Georgia bar's board of governors and an old friend.

Two weeks ago Greco convened an ABA task force to investigate Bush's extensive use of the presidential signing statement -- a caveat that Bush has added to bills he's signed into law, reserving the right to ignore them.

Greco told me he was stunned to read in the April 30 edition of the Boston Globe that Bush has added this caveat to more than 750 laws. That number, reported the Globe's Charlie Savage, is more than the total number of signing statements by all other U.S. presidents combined.

Bush has never vetoed a bill, but has used the signing statement to say he reserves the right to ignore certain laws in the interest of national security. He has used his constitutional authority as commander in chief as the basis for his contention in many signing statements that aspects of the law he's signing -- for example, provisions in appropriations bills or requirements that he notify Congress of his activities -- do not apply to him on matters of national security.

President Reagan started the modern practice of appending presidential signing statements to laws. It was continued by George H. W. Bush and Bill Clinton, but, according to the Globe, their use of the signing statement was generally to comment on provisions with which they did not agree, without asserting the right to ignore them.

The ABA president told me he'd been aware of Bush's practice of adding the caveat to some of the bills that he signed into law, but said, "I had no idea until [I read] the Charlie Savage article that 750 statutes had been so treated. We all learned the magnitude of what's been going on for the past 5 1/2 years.

"Bush has indicated that he does not intend to enforce laws or parts of laws or whatever he thinks interferes with his powers as president. In effect, he's vetoing Congress without vetoing," Greco said.

In doing so, Greco said, Bush is denying Congress its authority to enact laws and exercise oversight of the executive branch, "because there's no veto to override."

I asked Greco for his response to the contention of some Bush supporters that the signing statements merely comment on the laws being enacted and are not a vow to ignore them at will. I asked: Are the signing statements more of a theoretical than actual threat to the separation of powers?

"The proof is what he's doing," Greco replied. He cited Bush's signing statement to the McCain Amendment to the 2006 Defense Department appropriations bill, which prohibits the torture of prisoners. Bush added the caveat that as commander in chief he can waive the torture ban if he thinks harsh interrogation techniques are needed to prevent terrorist attacks.

"After it passed, the President complimented McCain in Congress, saying it was a good bill and that the United States is not about torture -- but then he attached a signing statement saying he's not bound by it," said Greco.

Greco said the big question for the task force is whether the president's use of signing statements exceeds his power under the Constitution. He stressed that the 10-member task force is bipartisan and mentioned several prominent Republicans who serve in the group, including Bruce Fein, who Greco said wrote President Reagan's presidential signing statements as a deputy attorney general. Fein was quoted in the Globe story as saying, "This is an attempt by the president to have the final word on his own constitutional powers, which eliminates the checks and balances that keep the country a democracy. There is no way for an independent judiciary to check his assertions of power, and Congress isn't doing it, either. So this is moving us toward an unlimited executive power."

Other Republicans on the ABA task force include William Sessions, director of the Federal Bureau of Investigation under Presidents Reagan and George H.W. Bush, and Mickey Edwards, a former Republican congressman from Oklahoma and former chair of the American Conservative Union.

The task force also includes Patricia M. Wald, a retired chief judge of the U.S. Court of Appeals for the District of Columbia appointed by President Jimmy Carter and legal scholars such as Harold Hongju Koh, the dean of Yale Law School, Kathleen M. Sullivan, a former dean of Stanford Law School and Charles Ogletree, a Harvard law professor.

I asked Greco about his own political affiliation. He declined to say, explaining that as the ABA president, he is politically neutral and cannot involve himself in politics until his term expires at the beginning of August. He did tell me that in his practice at Kirkpatrick & Lockhart Nicholson Graham, he is a defense litigator for large corporations. Campaign contribution filings at the Federal Election Commission show that he's donated to Democratic political candidates, including presidential contender Bill Bradley.

Greco said the ABA inquiry into Bush's signing statements is its 10th action since Sept. 11, 2001, to question the use of executive power.

Greco convened a similar task force to investigate the Bush administration's warrantless surveillance program. Based on its findings, the ABA's House of Delegates overwhelmingly voted in February to oppose domestic wiretapping that does not comply with the Foreign Intelligence Surveillance Act, which requires warrants for wiretapping U.S. citizens, and called on the president to respect the roles of Congress and the judicial branch on matters of national security.

The task force will report its findings to the ABA's House of Delegates at the ABA's annual meeting in August for a policy vote.

In the meantime, Greco will keep talking.

He estimated that he'd spent 270 of his 310 days as the ABA president on the road. "I was at the Rotary Club in Memphis four days ago. I asked who knew about the signing statements. Fewer than half the audience raised their hands. I laid it out for them. People came up to me afterward and told me they had no idea this was going on," he said.

"Like most things in this country, starting with the American Revolution, it's only when people are sufficiently disturbed and alarmed that their voices will arise in unison to protest the undermining of the Constitution."

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