JULY 2008

56 CONGRESS MEMBERS WANT SPECIAL PROSECUTOR FOR BUSH WAR CRIMES

FBI WANTS DOMESTIC SPY POWER WITHOUT EVIDENCE NEEDED

431 WAYS YOUR CIVIL LIBERTIES HAVE ERODED SINCE 9/11

WHAT THE U.S., LEARNED ABUT RUNNING A DEATH SQUAD OR BACKING A CORRUPT GOVERNMENT IN LATIN AMERICA AND HOW IT COULD BE APPLIED ELSEWHERE (LIKE HERE)  

YOO WON'T ANSWER IF PRESIDENT CAN BURY A SUSPECT ALIVE

OBAMA ADVISOR WARNS AGAINST HOLDING THOSE IN POWER LIABLE FOR CRIMINAL ACTS

According to After Downing Street, Barack Obama's advisor, Cass Sunstein, speaking at the netroots convention cautioned against prosecuting criminal conduct by the Bush regime. Prosecuting government officials risks a cycle of criminalizing public service, he argued, and Democrats should avoid replicating retributive efforts like the impeachment of President Clinton--or even the "slight appearance" of it.

BUSH CAPOS TAKING WAR CRIMES TALK SERIOUSLY

Frank Rich, The New York Times Top Bush hands are starting to get sweaty about where they left their fingerprints. Scapegoating the rotten apples at the bottom of the military's barrel may not be a slam-dunk escape route from accountability anymore.

No wonder the former Rumsfeld capo, Douglas Feith, is trying to discredit a damaging interview he gave to the British lawyer Philippe Sands for another recent and essential book on what happened, "Torture Team." After Mr. Sands previewed his findings in the May issue of Vanity Fair, Mr. Feith protested he had been misquoted -- apparently forgetting that Mr. Sands had taped the interview. . .

So hot is the speculation that war-crimes trials will eventually follow in foreign or international courts that Lawrence Wilkerson, Colin Powell's former chief of staff, has publicly advised Mr. Feith, Mr. Addington and Alberto Gonzales, among others, to "never travel outside the U.S., except perhaps to Saudi Arabia and Israel."

SECRET RED CROSS REPORT SAYS THE CIA TORTURED AL QAEDA DETAINEES

Progress Report -"Red Cross investigators concluded last year in a secret report that the Central Intelligence Agency's interrogation methods for high-level al Qaeda prisoners constituted torture," according to a new book by investigative reporter Jane Mayer. The report found that the Bush administration "may have committed 'grave breaches' of the Geneva Conventions" and that the officials who approved the methods could be "guilty of war crimes." The report, which Mayer cited in less detail last year in the New Yorker, says that al Qaeda member Abu Zubaydah told the Red Cross "that he had been waterboarded at least 10 times in a single week and as many as three times in a day." Abu Zubaydah also was confined in a box "so small he said he had to double up his limbs in the fetal position" and was "one of several prisoners to be 'slammed against the walls.'" The Red Cross concluded that the methods used on Zubaydah were "categorically" torture. In August 2007, after Mayer's initial New Yorker article on the report was published, President Bush replied, "[I] haven't seen it; we don't torture" when asked about the report. But according to Mayer's book, the CIA showed the report to both Bush and Secretary of State Condoleeza Rice.

JUNE 2008

ANOTHER BUSH AIDE SHOWS WHAT CONTEMPT OF CONGRESS LOOKS LIKE

TRAVEL ADVISORY FOR BUSH PERPS: DON'T TRAVEL ABROAD

BUSH HAS SEIZED MORE POWER THAN ANY BRITISH OR AMERICAN LEADER SINCE 17TH CENTURY

GENERAL WHO PROBED ABU GHRAIB SAYS BUSH OFFICIALS COMMITTED WAR CRIMES

LAW SCHOOL TO PLAN BUSH WAR CRIMES TRIAL

OP ED NEWS A conference to plan the prosecution of President Bush and other high administration officials for war crimes will be held September 13-14 at the Massachusetts School of Law at Andover.

"This is not intended to be a mere discussion of violations of law that have occurred," said convener Lawrence Velvel, dean and cofounder of the school. "It is, rather, intended to be a planning conference at which plans will be laid and necessary organizational structures set up, to pursue the guilty as long as necessary and, if need be, to the ends of the Earth."

"We must try to hold Bush administration leaders accountable in courts of justice," Velvel said. "And we must insist on appropriate punishments, including, if guilt is found, the hangings visited upon top German and Japanese war-criminals in the 1940s."

Velvel said past practice has been to allow U.S. officials responsible for war crimes in Viet Nam and elsewhere to enjoy immunity from prosecution upon leaving office. "President Johnson retired to his Texas ranch and his Defense Secretary Robert McNamara was named to head the World Bank; Richard Nixon retired to San Clemente and his Secretary of State Henry Kissinger was allowed to grow richer and richer," Velvel said.

He noted in the years since the prosecution and punishment of German and Japanese leaders after World War Two those nation's leaders changed their countries' aggressor cultures. One cannot discount contributory cause and effect here, he said.

"For Bush, Richard Cheney, Donald Rumsfeld, and John Yoo to spend years in jail or go to the gallows for their crimes would be a powerful lesson to future American leaders," Velvel said.

The conference will take up such issues as the nature of domestic and international crimes committed; which high-level Bush officials, including Federal judges and Members of Congress, are chargeable with war crimes; which foreign and domestic tribunals can be used to prosecute them; and the setting up of an umbrella coordinating committee with representatives of legal groups concerned about the war crimes such as the Center for Constitutional Rights, ACLU, National Lawyers Guild, among others.

The Massachusetts School of Law at Andover was established in 1988 to provide an affordable, quality legal education to minorities, immigrants and students from low-income households that might otherwise be denied the opportunity to obtain a legal education and practice law. Its founder, Dean Velvel, has been honored by the National Law Journal and cited in various publications for his contributions to the reform of legal education.

DENNIS KUCINCH'S IMPEACHMENT ARTICLES

Article I Creating a Secret Propaganda Campaign to Manufacture a False Case for War Against Iraq.

Article II Falsely, Systematically, and with Criminal Intent Conflating the Attacks of September 11, 2001, With Misrepresentation of Iraq as a Security Threat as Part of Fraudulent Justification for a War of Aggression.

Article III Misleading the American People and Members of Congress to Believe Iraq Possessed Weapons of Mass Destruction, to Manufacture a False Case for War.

Article IV Misleading the American People and Members of Congress to Believe Iraq Posed an Imminent Threat to the United States.

Article V Illegally Misspending Funds to Secretly Begin a War of Aggression.

Article VI Invading Iraq in Violation of the Requirements of HJRes114.

Article VII Invading Iraq Absent a Declaration of War.

Article VIII Invading Iraq, A Sovereign Nation, in Violation of the UN Charter.

Article IX Failing to Provide Troops With Body Armor and Vehicle Armor

Article X Falsifying Accounts of US Troop Deaths and Injuries for Political Purposes

Article XI Establishment of Permanent U.S. Military Bases in Iraq

Article XII Initiating a War Against Iraq for Control of That Nation's Natural Resources

Article XIIII Creating a Secret Task Force to Develop Energy and Military Policies With Respect to Iraq and Other Countries

Article XIV Misprision of a Felony, Misuse and Exposure of Classified Information And Obstruction of Justice in the Matter of Valerie Plame Wilson, Clandestine Agent of the Central Intelligence Agency

Article XV Providing Immunity from Prosecution for Criminal Contractors in Iraq

Article XVI Reckless Misspending and Waste of U.S. Tax Dollars in Connection With Iraq and US Contractors

Article XVII Illegal Detention: Detaining Indefinitely And Without Charge Persons Both U.S. Citizens and Foreign Captives

Article XVIII Torture: Secretly Authorizing, and Encouraging the Use of Torture Against Captives in Afghanistan, Iraq, and Other Places, as a Matter of Official Policy

Article XIX Rendition: Kidnapping People and Taking Them Against Their Will to "Black Sites" Located in Other Nations, Including Nations Known to Practice Torture

Article XX Imprisoning Children

Article XXI Misleading Congress and the American People About Threats from Iran, and Supporting Terrorist Organizations Within Iran, With the Goal of Overthrowing the Iranian Government

Article XXII Creating Secret Laws

Article XXIII Violation of the Posse Comitatus Act

Article XXIV Spying on American Citizens, Without a Court-Ordered Warrant, in Violation of the Law and the Fourth Amendment

Article XXV Directing Telecommunications Companies to Create an Illegal and Unconstitutional Database of the Private Telephone Numbers and Emails of American Citizens

Article XXVI Announcing the Intent to Violate Laws with Signing Statements

Article XXVII Failing to Comply with Congressional Subpoenas and Instructing Former Employees Not to Comply

Article XXVIII Tampering with Free and Fair Elections, Corruption of the Administration of Justice

Article XXIX Conspiracy to Violate the Voting Rights Act of 1965

Article XXX Misleading Congress and the American People in an Attempt to Destroy Medicare

Article XXXI Katrina: Failure to Plan for the Predicted Disaster of Hurricane Katrina, Failure to Respond to a Civil Emergency

Article XXXII Misleading Congress and the American People, Systematically Undermining Efforts to Address Global Climate Change

Article XXXIII Repeatedly Ignored and Failed to Respond to High Level Intelligence Warnings of Planned Terrorist Attacks in the US, Prior to 911.

Article XXXIV Obstruction of the Investigation into the Attacks of September 11, 2001

Article XXXV Endangering the Health of 911 First Responders

MAY 2008

FBI DOCUMENTED WIDESPREAD GITMO WAR CRIMES, BUT WAS ORDER TO CLOSE DOWN FILE

NY TIMES In 2002, as evidence of prisoner mistreatment at Guantanamo Bay began to mount, Federal Bureau of Investigation agents at the base created a "war crimes file" to document accusations against American military personnel, but were eventually ordered to close down the file, a Justice Department report revealed Tuesday. . .

In one of several previously undisclosed episodes, the report found that American military interrogators appeared to have collaborated with visiting Chinese officials at Guantanamo Bay to disrupt the sleep of Chinese Muslims held there, waking them every 15 minutes the night before their interviews by the Chinese. In another incident, it said, a female interrogator reportedly bent back an inmate's thumbs and squeezed his genitals as he grimaced in pain.

The report describes what one official called "trench warfare" between the F.B.I. and the military over the rough methods being used on detainees in Guantanamo Bay, Afghanistan and Iraq.

The report says that the F.B.I. agents took their concerns to higher-ups, but that their concerns often fell on deaf ears: officials at senior levels at the F.B.I., the Justice Department, the Defense Department and the National Security Council were all made aware of the F.B.I. agents' complaints, but little appears to have been done as a result.

The report quotes passionate objections from F.B.I. officials who grew increasingly concerned about the reports of practices like intimidating inmates with snarling dogs, parading them in the nude before female soldiers, or "short-shackling" them to the floor for many hours in extreme heat or cold.

Such tactics, said one F.B.I. agent in an e-mail message to supervisors in November 2002, might violate American law banning torture.

More senior officials, including Spike Bowman, who was then the head of the national security law unit at the F.B.I., tried to sound the alarm as well.

"Beyond any doubt, what they are doing (and I don't know the extent of it) would be unlawful were these enemy prisoners of war," Mr. Bowman wrote in an e-mail message to top F.B.I. officials in July 2003.

THE LEGAL CASE AGAINST THE BUSH ADMINISTRATION

MARJORIE COHN, COUNTERPUNCH What does torture have in common with genocide, slavery, and wars of aggression? They are all jus cogens. Jus cogens is Latin for "higher law" or "compelling law." This means that no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation of a jus cogens prohibition.

The United States has always prohibited the use of torture in our Constitution, laws executive statements and judicial decisions. We have ratified three treaties that all outlaw torture and cruel, inhuman or degrading treatment or punishment. When the United States ratifies a treaty, it becomes part of the Supreme Law of the Land under the Supremacy Clause of the Constitution.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, says, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture."

Whether someone is a POW or not, he must always be treated humanely; there are no gaps in the Geneva Conventions. He must be protected against torture, mutilation, cruel treatment, and outrages upon personal dignity, particularly humiliating and degrading treatment under, Common Article 3.

We have federal laws that criminalize torture.

The War Crimes Act punishes any grave breach of the Geneva Conventions, as well as any violation of Common Article 3. That includes torture, willfully causing great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment.

The Torture Statute provides for life in prison, or even the death penalty if the victim dies, for anyone who commits, attempts, or conspires to commit torture outside the United States.

The U.S. Army Field Manual's provisions governing intelligence interrogations prohibit the "use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind." Brainwashing, mental torture, or any other form of mental coercion, including the use of drugs, are also prohibited. Military personnel who mistreat prisoners can be prosecuted by court-martial under provisions of the Uniform Code of Military Justice. These include conspiracy, cruelty and maltreatment, murder, manslaughter, maiming, sodomy, and assault.

In Filartiga v. Pena-Irala, the Second Circuit declared the prohibition against torture is universal, obligatory, specific and definable. Since then, every U.S. circuit court has reaffirmed that torture violates universal and customary international law. In the Paquete Habana, the Supreme Court held that customary international law is part of U.S. law.

The Constitution gives Congress the power to make the laws and the President the duty to carry them out. Yet on February 7, 2002, President Bush, relying on memos by lawyers including John Yoo, announced that the Geneva Conventions did not apply to alleged Taliban and Al Qaeda members. Bush said, however,

"As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."

But torture is never allowed under our laws.

Lawyers in the Department of Justice's Office of Legal Counsel wrote memos at the request of high-ranking government officials in order to insulate them from future prosecution for subjecting detainees to torture. In memos dated August 1, 2002 and March 18, 2003, former Deputy Assistant Attorney General John Yoo (Jay Bybee, now a federal judge, signed the 2002 memo), advised the Bush administration that the Department of Justice would not enforce the U.S. criminal laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.

The federal maiming statute makes it a crime for someone "with the intent to torture, maim, or disfigure" to "cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person." It further prohibits individuals from "throwing or pouring upon another person any scalding water, corrosive acid, or caustic substance" with like intent.

Yoo said in an interview in Esquire that "just because the statute says -- that doesn't mean you have to do it." In a debate with Notre Dame Professor Doug Cassell, Yoo said there is no treaty that prohibits the President from torturing someone by crushing the testicles of the person's child. In Yoo's view, it depends on the President's motive, notwithstanding the absolute prohibition against torture in all circumstances.

The Torture Convention defines torture as the intentional infliction of severe physical or mental pain or suffering. The U.S. attached an "understanding" to its ratification of the Torture Convention, which added the requirement that the torturer "specifically" intend to inflict the severe physical or mental pain or suffering. This is a distinction without a difference for three reasons.

First, under well-established principles of criminal law, a person specifically intends to cause a result when he either consciously desires that result or when he knows the result is practically certain to follow.

Second, unlike a "reservation" to a treaty provision, an "understanding" cannot change an international legal obligation.

Third, under the Vienna Convention on the Law of Treaties, an "understanding" that violates the object and purpose of a treaty is void. The claim that treatment of prisoners which would amount to torture under the Torture Convention does not constitute torture under the U.S. "understanding" violates the object and purpose of the Convention, which is to ensure that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." The U.S. "understanding" that adds the specific intent requirement is embodied in the U.S. Torture Statute.

Nevertheless, Yoo twisted the law and redefined torture much more narrowly than the definitions in the Convention Against Torture and the Torture Statute. Under Yoo's definition, the victim must experience intense pain or suffering equivalent to pain associated with serious physical injury so severe that death, organ failure or permanent damage resulting in loss of significant body functions will likely result.

Yoo wrote that self-defense or necessity could be used as a defense to war crimes prosecutions for torture, notwithstanding the Torture Convention's absolute prohibition against torture in all circumstances. There can be no justification for torture.

After the exposure of the atrocities at Abu Ghraib and the publication of the August 1, 2002 memo, the Department of Justice knew the memo could not be legally defended. That memo was withdrawn as of June 1, 2004. A new opinion, authored by Daniel Levin, Acting Assistant Attorney General Office of Legal Counsel, is dated December 30, 2004. It specifically rejects Yoo's definition of torture, and admits that a defendant's motives to protect national security will not shield him from a torture prosecution. The rescission of the August 2002 memo constitutes an admission by the Justice Department that the legal reasoning in that memo was wrong. But for 22 months, it was in effect, which sanctioned and led to the torture of prisoners in U.S. custody.

John Yoo admitted the coercive interrogation "policies were part of a common, unifying approach to the war on terrorism." Yoo and other Department of Justice lawyers, including Jay Bybee, David Addington, William Haynes and Alberto Gonzalez, were part of a common plan to violate U.S. and international laws outlawing torture. It was reasonably foreseeable that the advice they gave would result in great physical or mental harm or death to many detainees. Indeed, more than 100 have died, many from torture.

ABC News reported last month that the National Security Council Principals Committee consisting of Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the White House and micromanaged the torture of terrorism suspects by approving specific torture techniques such as waterboarding. Bush admitted, "Yes, I'm aware our national security team met on this issue. And I approved."

These top U.S. officials are liable for war crimes under the U.S. War Crimes Act and torture under the Torture Statute. They ordered the torture that was carried out by the interrogators. Under the doctrine of command responsibility, used at Nuremberg and enshrined in the Army Field Manual, commanders, all the way up the chain of command to the commander in chief, can be liable for war crimes if they knew or should have known their subordinates would commit them, and they did nothing to stop or prevent it. The Bush officials ordered the torture after seeking legal cover from their lawyers.

But Yoo and the other Justice Department lawyers who wrote the enabling memos are also liable for the same offenses. They were an integral part of a criminal conspiracy to violate our criminal laws. Yoo admitted in an Esquire interview last month that he knew interrogators would take action based on what he advised.

The President can no more order the commission of torture than he can order the commission of genocide, or establish a system of slavery, or wage a war of aggression.

A Select Committee of Congress should launch an immediate and thorough investigation of the circumstances under which torture was authorized and rationalized. The high officials of our government and their lawyers who advised them should be investigated and prosecuted by a Special Prosecutor, independent of the Justice Department, for their crimes.

John Yoo, Jay Byee, and David Addington should be subjected to particular scrutiny because of the seriousness of their roles in misusing the rule of law and legal analysis to justify torture and other crimes in flagrant violation of domestic and international law.

This essay is adapted from Marjorie Cohn's testimony before the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House Judiciary Committee. Marjorie Cohn is president of the National Lawyers Guild and author of Cowboy Republic.

PARAGUAY MAY NO LONGER BE SAFE HAVEN FOR BUSH

WHY BUSH MOB WILL BE CAREFUL WHERE THEY TRAVEL ABROAD AFTER 2008

WHAT AWAITS THE BUSH REGIME IN 2009

BUSH VETOES BILL THAT WOULD BAN WATERBOARDING, OTHER TORTURES

MUKASEY REFUSES TO ENFORCE CONTEMPT LAW

APRIL 2008

TOP AIDE TO COLIN POWELL RAISES WAR CRIME QUESTION RE CHENEY

BBC - A top aide to former Secretary of State Colin Powell has launched a stinging attack on US Vice-President Dick Cheney over abuse of prisoners by US troops. Col Lawrence Wilkerson accused Mr Cheney of ignoring a decision by President Bush on the treatment of prisoners in the war on terror.

Asked by the BBC's Today if Mr Cheney could be accused of war crimes, he said: "It's an interesting question."

"Certainly it is a domestic crime to advocate terror," he added.

"And I would suspect, for whatever it's worth, it's an international crime as well."

This is an extraordinary attack by a man who until earlier in the year was Mr Cheney's colleague in the senior reaches of the Bush team, the BBC's Justin Webb in Washington says.

Col Wilkerson has in the past accused the vice-president of responsibility for the conditions which led to the abuse of prisoners.

But this time he has gone much further, appearing to suggest Mr Cheney should face war crimes charges, our correspondent adds.

He said that there were two sides of the debate within the Bush administration over the treatment of prisoners.

Mr Powell and more dovish members had argued for sticking to the Geneva conventions, which prohibit the torture of detainees.

Meanwhile, the other side "essentially wanted to do away with all restrictions".

Mr Bush agreed a compromise, that "Geneva would in fact govern all but al-Qaeda and al-Qaeda look-alike detainees". . . .

JUSTICE DEPARTMENT DEFENDS WAR CRIMES BY CIA

MSNBC - Recent letters from the U.S. Justice Department to Congress state that intelligence agents working on counterterrorism can legally use interrogation techniques that might otherwise be banned by international law, The New York Times reported in its Sunday editions. The Justice Department's interpretation shows the Bush administration is contending that the boundaries should have a degree of latitude, the Times said, despite the president's order last summer that he said meant the CIA would hew to international norms on the treatment of detainees. . .

A March 5 letter from the Justice Department to Congress makes clear the Bush administration has not set boundaries for which interrogation methods might violate the ban in the Geneva Conventions on "outrages upon personal dignity," the Times reported.

"The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act," Brian Benczkowski, a deputy assistant attorney general, wrote in one letter.

The Times said the letters were provided by the staff of Sen. Ron Wyden, an Oregon Democrat and member of the Senate Select Committee on Intelligence.

A senior Justice Department official, speaking to the Times on condition of anonymity, said of the classified information: "I certainly don't want to suggest that if there's a good purpose you can head off and humiliate someone." But he said "the fact that you are doing something for a legitimate security purpose would be relevant." "There are certainly things that can be insulting that would not raise to the level of an outrage on personal dignity," the official said.

BUSH ADMITS HE KNEW HIS AIDES WERE DISCUSSING TORTURE

ABC: TOP BUSH AIDES MET DOZENS OF TIMES TO APPROVE TORTURE

ABC - In dozens of top-secret talks and meetings in the White House, the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, sources tell ABC News.

The so-called Principals who participated in the meetings also approved the use of "combined" interrogation techniques -- using different techniques during interrogations, instead of using one method at a time -- on terrorist suspects who proved difficult to break, sources said.

Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects -- whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.

The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed -- down to the number of times CIA agents could use a specific tactic.

The advisers were members of the National Security Council's Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.

As the national security adviser, Rice chaired the meetings, which took place in the White House Situation Room and were typically attended by most of the principals or their deputies. . .

This is the first time sources have disclosed that a handful of the most senior advisers in the White House explicitly approved the details of the program. According to multiple sources, it was members of the Principals Committee that not only discussed specific plans and specific interrogation methods, but approved them. . .

According to a former CIA official involved in the process, CIA headquarters would receive cables from operatives in the field asking for authorization for specific techniques. Agents, worried about overstepping their boundaries, would await guidance in particularly complicated cases dealing with high-value detainees, two CIA sources said. . .

Sources said that at each discussion, all the Principals present approved.

JOHN YOO

DAN EGGEN AND JOSH WHITE, WASHINGTON POST - The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president's ultimate authority as commander in chief overrode such statutes.

The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce "an extreme effect" calculated to "cause a profound disruption of the senses or personality."

Although the existence of the memo has long been known, its contents had not been previously disclosed.

Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department's use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and U.S. forces prepared to invade Iraq.

Sent to the Pentagon's general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department's Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president's inherent wartime powers.

"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network," Yoo wrote. "In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions."

Interrogators who harmed a prisoner would be protected by a "national and international version of the right to self-defense," Yoo wrote. He also articulated a definition of illegal conduct in interrogations -- that it must "shock the conscience" -- that the Bush administration advocated for years. . .

Thomas J. Romig, who was then the Army's judge advocate general, said yesterday after reading the memo that it appears to argue there are no rules in a time of war, a concept Romig found "downright offensive."

Martin S. Lederman, a former lawyer with the Office of Legal Counsel who now teaches law at Georgetown University, said the Yoo memo helped create a legal environment that allowed prisoner abuses at Abu Ghraib. "What else could have been the source of belief in Iraq that the gloves were off and all laws could be disregarded with impunity?" Lederman asked. "It created a world in which everyone on the ground believed the laws did not apply. It was a law-free zone."

In a 2004 memo for the Navy inspector general's office, then-General Counsel Alberto J. Mora objected to the ideas that cruel, inhuman or degrading treatment could be allowed at Guantanamo and that the president's authority is virtually unlimited.

GLENN GREENWALD, SALON As Jane Mayer reported two years ago in The New Yorker -- in which she quoted former Navy General Counsel Alberto Mora as saying that "the memo espoused an extreme and virtually unlimited theory of the extent of the President's Commander-in-Chief authority" -- it was precisely Yoo's torture-justifying theories, ultimately endorsed by Donald Rumsfeld, that were communicated to Gen. Geoffrey Miller, the commander of both Guantanamo and Abu Ghraib at the time of the most severe detainee abuses (the ones that are known. . .

The fact that John Yoo is a Professor of Law at Berkeley and is treated as a respectable, serious expert by our media institutions, reflects the complete destruction over the last eight years of whatever moral authority the United States possessed. Comporting with long-held stereotypes of two-bit tyrannies, we're now a country that literally exempts our highest political officials from the rule of law, and have decided that there should be no consequences when they commit serious felonies.

John Yoo's Memorandum, as intended, directly led to -- caused -- a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush's White House counsel, Alberto Gonzales, and Dick Cheney's counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes.

JOHN YOO LAST SEEN AT University of California, 890 Simon Hall Tel: 510-643-5089 Fax: 510-642-3728 Email Address: jyoo@law.berkeley.edu

PROBABLE CAUSE

EXISTENTIAL COWBOY - There is probable cause now to try George W. Bush for capital crimes in connection with the US program of torture at Abu Ghraib as well as the war of aggression against Iraq. There is evidence that George W. Bush ordered this program which most certainly resulted in numerous violations of the Geneva Conventions and the Nuremberg Principles.

(a) Offense. Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death. -US Codes, TITLE 18 > PART I > CHAPTER 118 > § 2441;

Certainly, the Bush regime has sought to make 'legal' Bush's crimes ex post facto, after they had already been committed. The argument that Bush, as 'President', may pardon himself or grant himself retroactive immunity from prosecution is just silly. If that were the case, every President might have tried to get away with it by simply making it all up as one goes along --the very anti-thesis of the 'rule of law', indeed, 'Due Process of Law', guaranteed by the Bill of Rights. If mere Presidents were allowed this kind of power, they might as well rule by decree, as Bush has presumed to do. As I have pointed out not even European monarchs were permitted to get away with that. King Charles I was beheaded for less. [See: Why Bush Made Plans to Invade the Netherlands; Bush's Unitary Executive Ends the Rule of Law, the Constitution, the Bill of Rights and the Separation of Powers].

George W. Bush has never denied that 'torture' was conducted upon his order. Abu Ghraib was not only about 'waterboarding' it was about a panoply of torture procedures --all of them perpetrated upon Bush's order. Bush has never denied that he ordered any procedure that we associate with Abu Ghraib. He has merely tried to justify it, as he tried to do in the following interview with Matt Lauer of the Today Show. . .

Even if his regime were 'legitimate' his various decrees bypassing both Congress and the Constitution are unlawful. Bush is not above the law, though he may think he is. Likewise, King Charles I of England may have thought himself above the authority of Parliament but found out otherwise too late to keep his head attached to his body.

SIGNING STATEMENTS

ANTHONY DiMAGGIO, COUNTERPUNCH - In a refreshing investigative series in the Boston Globe from 2006, journalist Charlie Savage dropped a bombshell on the Bush administration. Reporting on Bush's use of "signing statements," Savage highlighted the president's long-standing contempt for Legislative authority. Since then, the story has generally been overlooked although it recently resurfaced when Bush issued another statement that he would disregard Congress's prohibition of permanent military bases in Iraq. The President's issuance of this signing statement is just one of hundreds of challenges he's made to national laws.

A signing statement, simply put, is an official announcement from the Executive--an attempt to alter the intent of a law by allowing the President to interpret its execution in any way he sees fit. While signing statements hold no official legal standing, the president acts as if they grant him the power to disregard segments of bills with which he disagrees. Since taking office, the Bush administration has issued over 150 signing statements, containing over 500 constitutional challenges, and questioning more than 1,100 provisions of national laws. This is a significant increase from years past. Former presidents Ronald Reagan, George H. W. Bush, and Bill Clinton issued over 300 such statements combined, while only 75 signing statements were issued in total from the early 1800s through the Carter Presidency.

Interpretive signing statements have received support from some legal scholars and officials associated with the administration, such as Supreme Court Justice Samuel Alito and John Yoo of the Justice Department's Office of Legal Council. The American Bar Association, the ACLU, and other legal scholars, however, have challenged the signing statements as unconstitutional and a violation of the principles of checks and balances and separation of powers. In response to Bush's circumvention of the military bases ban, Harvard Law Professor David Barron questioned the administration for "continuing to assert the same extremely aggressive conception of the president's unilateral power to determine how and when US force will be used abroad."

Some Democrats in Congress have also challenged the President's assumption that he can unilaterally interpret laws outside their original intent. House Speaker Nancy Pelosi explains: "I reject the notion in his signing statement that he can pick and choose which provisions of this law to executeHis job, under the Constitution, is to faithfully execute the law - every part of it--and I expect him to do just that."

Sadly, there's been little sustained effort on the part of the Legislative and Judicial branches to prohibit these attacks on the legal system. The few bills that have been presented in Congress seeking to prohibit signing statements have gone nowhere, ignored by the majority of Democrats and Republicans. The Supreme Court has also failed to rule on the constitutionality of the signing statements, contributing to the legal ambiguity surrounding the President's controversial actions.

A few examples of the President's signing statements provide a better picture of his contempt for the law:

1. Regarding a bill requiring the Justice Department to provide reports to Congress on how the FBI has utilized the Patriot Act to spy on citizens and confiscate property, Bush issued a statement declaring his power to withhold such information if he feels it would hurt national security in some way.

2. Concerning a law protecting whistleblowers at the Dept. of Energy and Nuclear Regulatory Commission from punishment, the President determined that it's within his power to determine whether potential whistleblowers are even allowed to provide information to Congress.

3. In response to a 2004 law preventing the U.S. from deploying troops in Colombia against FARC and FLN guerillas, Bush announced that only he, as the commander in chief, has the power to decide whether troops will be used. Bush deemed the law as nothing more than "advisory in nature."

4. Although a law was passed requiring that scientific information "prepared by government researchers and scientists shall be transmitted uncensored and without delay" to Congress, the President issued a statement claiming it is within his power to withhold information if he feels it could damage U.S. national security, relations with foreign countries, or generally interfere with the operations of the Executive.

5. Perhaps most controversially, the President issued a signing statement countering Congress's prohibition on torture (included within the 2005 McCain amendment), claiming that it was within his constitutional power to ignore the ban in order to "combat terrorism."

You've probably noticed a pattern with many of these statements: they don't simply establish Presidential power to "interpret" or "execute" the law; quite the contrary, they represent a fundamental abrogation of the major provisions of the bills themselves. Of what use is a bill prohibiting torture, if the ban can be bypassed by any president who does not feel bound to honor it? What is the point of prohibiting the deployment of troops to Colombia, if the president simply ignores this requirement? Rather than voting against a ban on torture, the President has taken the back-door approach, signing the bill, then quietly issuing a statement that he will not be bound by the law.

Perhaps unsurprisingly, the media response to Bush's signing statements has been lacking. On the one hand, there are the wonderful investigative reports of Savage in the Boston Globe, which shed much light on the long-neglected story of presidential contempt for the law. On the other hand, researchers have found that the Globe's reporting has been largely ignored in other major outlets. The watchdog group Media Matters for America concluded that: "Except for a short March 24 United Press International article, some scattered editorials and opinion columns, and brief mentions in an April 1 San Francisco Chronicle article and an April 23 Washington Post article, Savage's reporting on Bush's 'signing statements' and the Democratic response were ignored by major newspapers and wire services. And aside from Keith Olbermann, who reported on the Globe article on the March 24 edition of MSNBC's Countdown, the cable and broadcast news networks ignored the 'signing statements' as well."

My own analysis also indicates mixed results in the case of the Paper of Record. On the editorial side of the New York Times, the paper actually came out quite opposed to the signing statements. In a 2008 editorial on the President's circumvention of the military bases ban, the paper attacked the administration for its "passive-aggressive" attempts "to undermine the power of Congressdeclaring that he [has] no intention of obeying laws he [has] signed." In his 2007 Op-Ed, Adam Cohen censured Bush for his de-facto veto of the torture ban--for using an "extralegal trickto bypass the ban on torture. It allowed him to make a coward's escape from the moral and legal responsibility" of prohibiting such behavior.

Sadly, sustained critical attention hasn't appeared in the paper's reporting. While the administration has been issuing signing statements since it took office in early 2001, a review of the paper's coverage demonstrates that the topic didn't even make an appearance in the paper until a full five years later, in January 2006. Overall, the paper has run only 7 stories featuring the signing statements, in the just over seven years of the Bush administration's tenure. Furthermore, six of those stories were clustered in the _ year period between January and July of 2007--when Republican Senator Arlen Specter was attacking the President for the statements, and when the Senate was grilling Supreme Court nominee Samuel Alito for his support for the statements. Only one report from mid 2006 through early 2008 featured the issue of the statements, despite the continuing conflict between Congress and the President over his distaste for national laws.

Whenever I reach the Presidency section in my American government class each semester, many of my students become enraged when they find out about the Bush administration and the signing statements debacle. They're bewildered that a political leader could be allowed to blatantly disregard the law without being held politically accountable. Unfortunately, most people don't seem to be aware of the travesty of the signing statements--at least if my students' responses are any indication. While Bush's contempt for the law may very well be an impeachable offense, it certainly hasn't been treated this way in a timid Congress, too afraid to challenge the President in a time of infinite war.

http://www.afterdowningstreet.org/node/31445

PENTAGON LAWYER WHO TRIED TO RIG GITMO CASES RESIGNS

THE NATION - William J. Haynes, the Pentagon's chief legal officer and overseer of Guantanamo's Military Commissions, is stepping down, amid mounting controversy over the tribunal process, so he can "return to private life," the Department of Defense announced late on Monday. Haynes' resignation comes exactly two weeks after landmark charges were brought against six "high-value" Guantanamo detainees. . .

His infamous memos and public statements advocated torture and the denial of habeas corpus for detainees. In a 2002 memo, he recommended techniques such as "twenty-hour interrogations, isolation for up to thirty days, deprivation of light and auditory stimuli. . . and stress positions such as the proposed standing for four hours." In response to this last technique, Haynes's boss at the time, then-Secretary of Defense Donald Rumsfeld, wrote in the memo's margins, "I stand 8-10 hours a day. Why is standing limited to 4 hours." Haynes also wanted to keep death threats, waterboarding and exposure to extreme temperatures on the table as interrogation methods. He stated, "Fact: The detainees currently held at Guantanamo Bay, Cuba, are not protected by the Geneva Conventions.". . .

Criticism of Haynes has sharpened in the wake of the October resignation of the Chief Prosecutor of Guantánamo's military commissions, Col. Morris Davis, who charged that Haynes and other political appointees were interfering unlawfully in the process. Davis resigned when Haynes was inserted above him in the chain of command, saying, "Everyone has opinions, but when he was put above me, his opinions become orders." . . .

And just last week, Col. Davis made the startling claim, in an exclusive interview with The Nation, that Haynes, who oversees both the prosecution and defense, said to him, "We can't have acquittals, we have to have convictions." According to Davis, Haynes said, "if we've been holding these people for so long, how can we explain letting them get off?"

http://www.thenation.com/docprint.mhtml?i=20080310&s=tuttle2

HOUSE CENSORS TWO TOP BUSH AIDES; JUSTICE DEPARTMENT TO IGNORE LAW

CNN - The House voted to hold White House Chief of Staff Josh Bolten and former White House lawyer Harriet Miers in contempt in its probe of the 2006 firings of U.S. attorneys. Former White House counsel Harriet Miers refused to appear at a hearing into the firings of U.S. attorneys. The House voted 223-23 to hold the two Bush aides in contempt of Congress. White House spokeswoman Dana Perino called the move "a partisan, futile act" that would not be enforced by the Justice Department.

http://www.cnn.com/2008/POLITICS/02/14/house.contempt/?iref=mpstoryview

WAR CRIMES ACT

GEORGE WASHINGTON BLOGSPOT - The War Crimes Act of 1996: Bush, Cheney and the Boys could be Indicted under US Law The War Crimes Act of 1996, a federal statute set forth at 18 U.S.C. S 2441, makes it a federal crime for any U.S. national, whether military or civilian, to violate the Geneva Convention by engaging in murder, torture, or inhuman treatment.

The statute applies not only to those who carry out the acts, but also to those who order, know about it, or fail to take steps to stop it. The statute applies to everyone, no matter how high and mighty.

18 U.S.C. S 2441 has no statute of limitations, which means that a war crimes complaint can be filed at any time.

The penalty may be life imprisonment or -- if a single prisoner dies due to torture -- death. Given that there are numerous, documented cases of prisoners being tortured to death by U.S. soldiers in both Iraq and Afghanistan (see for example this report), that means that the death penalty would be appropriate for anyone found guilty of carrying out, ordering, or sanctioning such conduct.

The general in charge of the notorious Abu Ghraib prison in Iraq stated this week that Secretary of Defense Donald Rumsfeld and other top administration officials ordered that inhuman treatment and torture be conducted as part of a deliberate strategy. . .

DESTROYING EVIDENCE

NY TIMES - At the time that the Central Intelligence Agency destroyed videotapes of the interrogations of operatives of Al Qaeda, a federal judge was still seeking information from Bush administration lawyers about the interrogation of one of those operatives, Abu Zubaydah, according to court documents made public on Wednesday. It was already known that the judge in the case, Leonie M. Brinkema, had not been told about the existence or destruction of the videos. But the newly disclosed court documents, which had been classified as secret, showed the judge had still been actively seeking information about Mr. Zubaydah's interrogation as late as Nov. 29, 2005. . . The document states that on Nov. 29, 2005, government lawyers produced documents, including "intelligence summaries," about Abu Zubaydah but never told the court about the existence or destruction of the tapes.

USE OF TORTURE

WASH POST - The White House yesterday directly joined a debate over the use of simulated drownings to force disclosures by CIA detainees, saying the interrogation technique known as waterboarding was legal and that President Bush could authorize the tactic in the future. White House spokesman Tony Fratto said the CIA could use waterboarding with Bush's approval, which would "depend on the circumstances," including whether "an attack might be imminent." Independent legal experts have called the technique torture and said its use is barred by U.S. laws and treaties under all circumstances. . .

Tom Malinowski, Washington advocacy director for Human Rights Watch, said the Bush administration's admissions about waterboarding mark an important milestone. "It's not an abstract debate anymore," Malinowski said. "They've acknowledged that they've waterboarded people, and virtually every legal authority in the United States believes that waterboarding is torture and a crime."

WASH POST EDITORIAL - For centuries, civilized countries have considered waterboarding, or simulated drowning, to be torture. The United States rightly condemned as war criminals Japanese soldiers who employed the technique against U.S. personnel during World War II. It prosecuted U.S. military officers who waterboarded prisoners at the turn of the 20th century.

THINK PROGRESS - In today's gaggle, White House said that it may approve the use of waterboarding again . . . "It will depend upon circumstances," spokesman Tony Fratto said, adding "the belief that an attack might be imminent, that could be a circumstance that you would definitely want to consider."

http://thinkprogress.org/2008/02/06/fratto-waterboarding/