Cheney's Law

An excellent summary of this Administration's war on the rule of law is now available for online viewing. Frontline's documentary can and should be viewed in its entirety here.

Determined to secure unlimited authority for the President to wage the war on terror, a war with undefined limits in space and time, the Administration first asked Congress for authority to "wage" the war through any means and in any place, including within the United States. Rebuffed, it made the most of the authorization it had been given and satisfied itself that it could go beyond this authority based on the meaning it ascribed to the phrase "Commander in Chief" in the Constitution. The results: warrantless spying on Americans, kidnapping and torture of suspects, unlawful and indefinite detention and torture of American citizens, and incalculable damage to the very concept of America as a place ruled by law, not people.

It is plain that Cheney's and, ultimately, Bush's view of the office of the presidency is indistinguishable from dictatorship. The president has unlimited authority to prosecute a war. The president has unlimited authority to choose whether and how to engage in war. The president has unlimited authority to define when war begins, when it ends, and who the enemies are. Whatever else the Constitution might mean, it surely precludes such a role for any government official.

Here, again, is the short form of the Contract with America that we must demand our representatives accept:

• Restore the right of habeas corpus.


• Protect the people against arbitrary detention, arrest, and spying.


• Defund the office of Dick Cheney, incapacitating him from making a further mess of the rule of law and our national interests. At the same time, ensure the firing of David Addington and his disqualification from public service.


• Require the approval of Congress before attacking another nation.


• Stop lying about Iraq. No more "wait and see."


• Do your duty and begin an impeachment inquiry against the President.

It's our duty to demand no less.

Frank Rich is on board

Frank Rich lays it out today in the NY Times. It's not good enough to blame torture and the reckless prosecution of the war on Bush. We must do something, as his failures are our failures. The final sentences of his column state precisely the objective of my writings here: "It’s up to us to wake up our somnambulant Congress to challenge administration policy every day. Let the war’s last supporters filibuster all night if they want to. There is nothing left to lose except whatever remains of our country’s good name."

The challenge

As I said in my first post here, I don't pretend that my writing here is likely to have any effect. I hope it will and that in combination with the work of others it might do some good. That's all anyone really should aspire to do. But I certainly did not want to do nothing or to snipe from the sidelines at the daily news of deception and incompetence without at least suggesting a way out. I want instead to advocate doing something, namely focusing our discontent into a palpable political demand.

There is no good prospect that this will come to pass. After all, the forces that usually underly popular demand are somewhat lacking. Though there are certainly excellent reasons for the majority of our people to be upset at the state of the economy and over the Administration's purposeful fiscal conduct to secure and exacerbate this situation, these concerns are mostly separate from the essence of the political and moral crisis at which my words are directed. And so, we have no equivalent of the Stamp or Townshend Acts galvanizing the well off to join with the less well off to dump tea into Boston Harbor.

Nor do we have a draft. The youth on our campuses are surely angry, and we have seen some signs (here and here, for example) of the sort of turmoil that became common during the latter years of the Vietnam War. But conscripting our youth to fight in an unpopular war is kindling for social action, and we have none. Though we revile the images on television and the accounts of the horrors faced by our soldiers and the civilians among whom they serve, most of us are safe assuming that we will not be asked to play a direct part. Were it otherwise, the streets would be filled with protest.

And so we face a great challenge. When his comfort is not already threatened, what can move a person to make demand on his rulers? While laudable, it is not the height of courage or conviction for a man to rise up and demand change when his prospect of stability is already under siege. Nearly all of us would answer the call to duty when the threat to our freedoms has blown open our own doors. No, the real patriot is the one willing to forsake comfort, when doing nothing would do no harm to his own affairs, because he wants to support or save the values that animate his country.

This is Keizer's last paragraph:
"I wrote this appeal during the days leading up to the Fourth of July. I wrote it because for the past six and a half years I have heard the people I love best—family members, friends, former students and parishioners—saying, 'I’m sick over what’s happening to our country, but I just don’t know what to do.' Might I be pardoned if, fearing civil disorder less than I fear civil despair, I said, 'Well, we could do this.' It has been done before and we could do this. And I do believe we could. If anyone has a better idea, I’m keen to hear it. Only don’t tell me what some presidential hopeful ought to do someday. Tell me what the people who have nearly lost their hope can do right now."

It's time to demand accountability. Though you need 60 Senators to pass anything of substance and 67 to override a veto, you only need 41, and maybe fewer if you're smart, to block legislation. We have the numbers to shut down this government. We will see whether those who say they are with us also have the will. That should be our goal, the 65% of us who disapprove of the Administration. Showing them, strongly, that we will stand with them, if only they will have the spine to stand with us.

Do you realize ...

what we did to this man? Our agents kidnapped him, tortured him in Afghanistan, then released him - several months later. Turns out that we had brutalized an innocent man because his name was similar to that of an actual terrorist suspect. Khaled el-Masri says that while in one of our secret prisons known as "the salt pit" he was beaten, sodomized, humiliated, and subject to inhuman conditions. Oh - and though it was known he was the wrong man by April at the latest, he was not released until the end of May, over four months after we had kidnapped him. His family had no idea what had become of him and had left Germany for Lebanon in his absence.

Here's El Masri's account of the moments before he was forced aboard an airplane to depart for his cell in Afghanistan:

"I heard the door being closed. And then they beat me from all sides, from everywhere, with hands and feet. With knives or scissors they took away my clothes. In silence. The beating, I think, was just to humiliate me, to hurt me, to make me afraid, to make me silent. They stripped me naked. I was terrified. They tried to take off my pants. I tried to stop them so they beat me again. And when I was naked I heard a camera."

Apparently this was followed by an anal search. Hooded, ears plugged, chained to the bare floor of the aircraft, he was drugged until arriving in Afghanistan where he was transported to one of our prisons in the trunk of a car. His treatment got worse from there. Now free and asking us, through our courts, for an apology and compensation, El-Masri has been brushed aside. The US Supreme Court rejected his appeal of a lower court ruling that even if everything he alleges is true his "private interests must give way to the national interest in preserving state secrets." This is not the first case in which we have refused to hear complaints from a victim of rendition on grounds that it would compromise national security, a doctrinally shaky and, in practice, morally abhorrent abdication of the judicial role.

We did all of this. Ours have been the deeds of animals. It will not do to point our fingers at the Boy King or George Tenet or Cheney. Unless we repudiate what these men have done and take action to make it right, we are no better than they. I humbly suggest you stay home from work on November 6th and ask everyone you know to do the same. It won't begin to atone for our sins, but it's a start.

Degeneracy

Echoing some posts of mine on Digg: A nation is well on the path to tyranny or irrelevance when it is willing to become more worked up over a man who lied, even if under oath, about a sexual affair than one who has led us into a disastrous war that has cost the lives of hundreds of thousands and who has instituted a program of spying, torture, and arbitrary detention. When we are more prepared to prosecute sex scandals than to avert such profound constitutional and moral crisis, I fear we have become truly degenerate.

"We work to make this country the kind of America they [U.S. veterans] were willing to die for. That's an America where the idea of sacred honor still has the power to stir men's souls. My solitary, solitary hope is that 100 years from today people will look back at what we've done and say, 'They kept the faith.'"
Henry Hyde, Senate trial of Bill Clinton. Hyde's summation of his effort to win conviction of Bill Clinton in the Senate is worth reading in full, as are those of the other House Managers. Whither Henry Hyde?

One more thing...

Oops. I forgot the most important thing. Final demand: "You, the representative agreeing to this Contract, agree to do whatever is in your power to ensure that no other business is conducted in Congress until the other provisions of this Contract are enacted." Upshot, President Bush and sympathetic members of Congress, you can filibuster, and you can veto. But the only items for business that will be considered are the ones listed here. Like the general strike itself, the government will shut down until we get this right.

Contract with America

While I will continue to post the reasons why I believe the show of will that Keizer recommends is necessary (See my first post on this blog for more.), I'm going to pause for a moment to elaborate on what the people of the United States should demand from their representatives. The purpose of this blog is not to comment on the news of the day, not to unearth new information, and not to suggest clever insights into facts well known. Others do a great job of that. Rather, my intent is to help make the case for action and to catalog in one place the manifold reasons that make this action necessary.

Keizer recommends a general strike. No work, no consumption. A silent, legal protest that hits those in power where it hurts. But what should be the goal of such a thing - who is its target? I suggest a real Contract with America, one that we draft. (And yes, I'm consciously using the name "Contract with America.") Election Day 2007 would be the point of focus, the day on which we demand that our representatives agree to this compact and on which we support those who already have. Here are possible terms, the consideration for which shall be our votes and our getting on again with our daily lives. In other words, you are either for the Contract or you no longer have our support. I'm counting on your help to revise this.

Contract with America, Draft 1

• Restore unequivocally the right of habeas corpus to all those detained by the United States. This does not mean that the exigencies of war must be ignored and full trials given to true, battlefield detainees. The Supreme Court made that clear in the Hamdi case. But there shall be no utterly rights-free zones and no Executive (Royal) power to detain without charge and under whatever conditions for as long as his highness deems fit.



• Strengthen the right of US residents against executive detention. Habeas is not enough. No resident ought to fear being plucked from the streets and absconded to a naval brig, as was Jose Padilla. There shall be no disappearances here. In addition, remove the putative power granted to the Executive to spy on Americans without a warrant.



• Defund completely Cheney's office. Even if Cheney is not immediately impeached for his crimes, he should be denied a staff and the means to do more harm. It is enough constitutionally that the Vice President is left the ability to assume the presidency. As a corollary, David Addington must be fired and barred from public service.



• Bar the use of military force against Iran absent Congressional authorizations. Even if one believes that the President has some authority to launch major combat operations without a declaration of war from Congress, this President has demonstrated such gross incompetence in the use of our military that Congress should affirmatively bar him from using it further. Agree to be willing quickly to grant an emergency authorization if needed to protect vital national security interests.



• No more Friedman Units. No politician agreeing to this Compact is permitted to tell us that we should wait for six or nine more months before evaluating and taking concrete action to end the involvement of the United States in Iraq. Our incalculably tragic errors of judgment have led us to this point, imposing unneeded suffering on the Iraqi people. We have a moral duty to help them in any way we can. But fighting to "win," in the vaguest of hopes that the Boy King will somehow manage to rescue his legacy, is not a plan.



• Begin impeachment proceedings against the President. It matters not whether he is removed from office immediately, the last day of his presidency, or not at all. There is more than enough evidence of abuse of power to justify an impeachment inquiry. Not beginning the process is a dereliction of congressional duty.

In snappier form, we'd have:

• Restore the right of habeas corpus.


• Protect the people against arbitrary detention, arrest, and spying.


• Defund the office of Dick Cheney, incapacitating him from making a further mess of the rule of law and our national interests.


• Require the approval of Congress before attacking another nation.


• Stop lying about Iraq. No more "wait and see."


• Do your duty and begin an impeachment inquiry against the President.

I'm open for suggestions.

Reason 4 (second elaboration)

What has become of us? Led by a man who appears to model himself not after any historical figure as much as Harrison Ford acting the part of POTUS in Air Force One, striking tough-looking poses, a man of action not words, we are reduced to committing the worst sorts of abuses out of unbridled fear. His actions are our actions, and these have brought great shame on all of us.

Today we find out that even the relatively minor efforts of Congress and the Courts to reign in the worst kinds of abuse, those we consciously adopted from the practices of Egypt, Saudia Arabia, and the former Soviet Union, have been treated by the Administrations as obstacles to be gotten around. Here is the timeline:

• Early 2002 - The Administration begins holding prisoners in secret sites in Afghanistan, Thailand, and Eastern Europe, without Red Cross inspections, and it subjected these prisoners to what the Times calls "harrowing pressure tactics." Here are some of the elements of the torture administered in these secret facilities in our name: "slaps to the head; hours held naked in a frigid cell; days and nights without sleep while battered by thundering rock music; long periods manacled in stress positions; [and] the ultimate, waterboarding."


• August 2002 - In response to concerns by the CIA operatives administering torture at these secret sites about their legal liability, the Justice Department issues an opinion authored by John Yoo at the Office of Legal Counsel. In a nutshell, the opinion found to be legal any interrogation practices short of those causing physical pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death" or mental pain that would result in "significant psychological harm of significant duration, e.g., lasting for months or even years."
  
  However, even mental pain meeting those criteria would not be "torture" in John Yoo's world unless it resulted from "threats of imminent death," threats of the kinds of physical pain described above, or the use of drugs or techniques "designed to deeply disrupt the senses, or fundamentally alter an individual's personality." Only the most "extreme conduct" is prohibited but not conduct that represents only "cruel, inhuman, or degrading treatment or punishment."
  
  But even these minimal constraints, the Administration reasoned, may not apply. Restricting the President only to cruel and inhuman treatment of detaineesmight be an unconstitutional shackle on his authority as "Commander-in-Chief" to behave in ways beyond cruel and beyond inhuman. Even if not unconstitutional, perhaps the laws barring torture contain exceptions for necessity or self-defense. Thusly the Administration instructed our agents that they were free to behave on our behalf in cruel and inhuman ways - and perhaps to exceed even those bounds.


• Late 2003 - Fellow conservative and friend of John Yoo, Jack Goldsmith, assumes leadership of the Office of Legal Counsel, reviews the memo and finds it, according to the Times, "overreaching and poorly reasoned." He informs the administration that the memo may no longer be relied on. Goldsmith and the Deputy AG James Comey, who supported Goldsmith's conclusion, incur the wrath of Cheney's counsel, David Addington. "'On national security matters generally, there was a sense that Comey was a wimp and that Comey was disloyal,' said one Justice Department official who heard the White House talk, expressed with particular force by Mr. Addington." Comey would depart the DoJ in August 2005, clearing the way for loyalist Gonzales and other sycophants to control DoJ policy.
  


• April-May 2004 - America learns that in Abu Grhaib prison near Baghdad, in which Sadaam Hussein had carried out torture and executions of political prisoners, American military personnel and contractors had abused Iraqi detainees in shocking ways. General Antonio Taguba's report noted many examples, including sexual abuse, hitting and kicking, jumping on naked detainees forced into a pile, attaching wires to extremities and genitals to simulate electric torture, leading detainees around on dog chains, intimidating with dogs, and photographing all of this. The full account is horrible, but more can be read in this summary.
  
  Though low-ranking personnel are prosecuted and punished and their behavior cited as extremely aberrant, it is now absolutely plain that these tactics, even if aberrant in degree which is doubtful, were adapted from approved techniques used in Guantanamo (and perhaps at CIA black sites).


• June 2004 - The Yoo torture memo is leaked to the Washington Post. Goldsmith formally withdraws the Yoo memo and announces his resignation.


• December 2004 - The Justice Department issues a superseding opinion on torture, which apparently takes a more expansive view as to what techniques might be prohibited. For example, the new memo explicitly does not "reiterate" the claim in the Yoo memo that officials could only be criminally liable for conduct that would amount to torture if the infliction of severe pain or suffering was their "precise objective," even if they knew such pain was "reasonably likely" to result. This strengthening of the Administration's public stance on preventing torture comes a week before the confirmation hearing of Alberto Gonzales.


• 2005 - Gonzales approves a secret OLC memo over the objections of Comey that sanctions the combination of aggressive interrogation techniques. The memo represented an "expansive endorsement of the harshest interrogation techniques ever used" by the CIA. According to the Times: "The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures." Dissenting, Mr. Comey told the responsible officials that they would be "ashamed" when word got out. Later as Congress was debating what would be passed as the Detainee Treatment Act, DoJ issued another opinion, declaring that no CIA methods then used violated the "cruel, inhuman, and degrading" standard that was ultimately adopted.


• June 29, 2006 - The Supreme Court issues an opinion in Hamdan v. Rumsfeld holding, among other things, that the Uniform Code of Military Justice and Article 3 of the Geneva Conventions apply to detainees. In response, Bush orders the transfer of CIA prisoners to Guantanamo, and the CIA stops its practice of waterboarding.


• July 2006 - According the Times, Bush signed a new, secret executive order authorizing "enhanced interrogation techniques." Though it is unclear from the article exactly when, the use of overseas "black sites" has now resumed.


• October 2006 - Instead of issuing a thorough rebuke of the President's pattern of unconstitutional conduct, Congress passes the Military Commissions Act. But more on that in a future post concerning detention.

The pattern of conduct here is unmistakable. Bush believes he has nearly unlimited power to wage "war" in any manner he sees fit. Any constraints imposed from other branches are political problems to worked around, not substantive constraints he is under a duty to abide. Bush the Incompetent acts as though he is King of the United States, and in so doing exhibits the worst excesses of some of history's worst monarchs. He is a good person, he assumes. His cause is just, he assumes. Therefore, he assumes, the things he does in pursuit of that cause are good. He and his conspirators, including David Addington, Alberto Gonzales, Dick Cheney, and Donald Rumsfeld are likely criminally liable for the conduct they authorized. Writing opinions asserting the legality of executive conduct does not make it so.

But we're all responsible for not doing more to stop it. Congress must not continue to go along, and so it is at Congress that the People must direct their outrage.

Reason 4 (first elaboration)

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Constitution, 4th Amendment.

Shortly after September 11, 2001, our President enacted a scheme that apparently led to spying on Americans without warrants, and outside of the specific procedure for such surveillance established by Congress in a law known as FISA. This program and its history are classified, and so we don't know exactly what kinds of surveillance were conducted. We do know that two years after it began, Department of Justice officials found the program to lack any legal basis and prepared to resign in mass if the administration went ahead with it without reauthorization from the DoJ. (For the sordid details, including the famous appearances by Andrew Card and Alberto Gonzalez at the bedside of a very sick John Ashcroft, see
here.) These were political appointees, all sympathetic with the policy goals of the administration.

In its effort to conduct eavesdropping Bush knew he would not be able to convince even his own supporters was legal, the Administration simply kept its most able lawyers in the dark. As Marty Lederman writes, "As soon as anyone outside the Cheney/Gonzales/Yoo circle saw the legal analysis, they realized it was so extreme and untenable that they would have to resign if the President continued to act in reliance upon it. Goldsmith testified today that the NSA program was 'the biggest legal mess I encountered [at OLC].' In light of the August 2002 Torture opinion, that's really saying something!"

Much has been written about this program, but the issue is simple. Does the President's power under the Constitution extend to prying into the communications of Americans without oversight of any kind from any other organ of our Government? And what does it say about this President that he sought to prevent the airing of dissenting views within his own administration. This is but one way in which this extremely incompetent man has acted as though he is King, and a lousy one at that.

Reason 4

Reason 3: Incompetence (again)

Warned about the potential for breach of the levees, knowing that destruction could be widespread and unprecedented, and while most of us paying attention watched what we knew was the slowly unfolding implosion of New Orleans, Bush played guitar, attended photo-ops, and otherwise failed to do anything of substance. Here's what the National Hurricane Center posted on Sunday morning:

URGENT - WEATHER MESSAGE 
NATIONAL WEATHER SERVICE NEW ORLEANS LA 
1011 A.M.  CDT SUN AUG 28 2005 
 
...DEVASTATING DAMAGE EXPECTED... 
 
.HURRICANE KATRINA...A MOST POWERFUL HURRICANE WITH 
UNPRECEDENTED STRENGTH...RIVALING THE INTENSITY OF 
HURRICANE CAMILLE OF 1969.  
 
MOST OF THE AREA WILL BE UNINHABITABLE FOR WEEKS...
PERHAPS LONGER. AT LEAST ONE HALF OF WELL CONSTRUCTED 
HOMES WILL HAVE ROOF AND WALL FAILURE. ALL GABLED ROOFS 
WILL FAIL...LEAVING THOSE HOMES SEVERELY DAMAGED OR 
DESTROYED. 
 
THE MAJORITY OF INDUSTRIAL BUILDINGS WILL BECOME NON 
FUNCTIONAL. PARTIAL TO COMPLETE WALL AND ROOF FAILURE 
IS EXPECTED. ALL WOOD FRAMED LOW RISING APARTMENT 
BUILDINGS WILL BE DESTROYED. CONCRETE BLOCK LOW RISE 
APARTMENTS WILL SUSTAIN MAJOR DAMAGE...INCLUDING SOME 
WALL AND ROOF FAILURE. 
 
HIGH RISE OFFICE AND APARTMENT BUILDINGS WILL SWAY 
DANGEROUSLY...A FEW TO THE POINT OF TOTAL COLLAPSE. ALL 
WINDOWS WILL BLOW OUT.  
 
AIRBORNE DEBRIS WILL BE WIDESPREAD...AND MAY INCLUDE 
HEAVY ITEMS SUCH AS HOUSEHOLD APPLIANCES AND EVEN LIGHT 
VEHICLES. SPORT UTILITY VEHICLES AND LIGHT TRUCKS WILL BE 
MOVED. THE BLOWN DEBRIS WILL CREATE ADDITIONAL 
DESTRUCTION. PERSONS...PETS...AND LIVESTOCK EXPOSED TO 
THE WINDS WILL FACE CERTAIN DEATH IF STRUCK. 
 
POWER OUTAGES WILL LAST FOR WEEKS...AS MOST POWER POLES 
WILL BE DOWN AND TRANSFORMERS DESTROYED. 

WATER SHORTAGES WILL MAKE HUMAN SUFFERING INCREDIBLE BY MODERN STANDARDS. [emphasis added]

THE VAST MAJORITY OF NATIVE TREES WILL BE SNAPPED OR 
UPROOTED. ONLY THE HEARTIEST WILL REMAIN STANDING...
BUT BE TOTALLY DEFOLIATED. FEW CROPS WILL REMAIN. 
LIVESTOCK LEFT EXPOSED TO THE WINDS WILL BE KILLED. 
 
AN INLAND HURRICANE WIND WARNING IS ISSUED WHEN 
SUSTAINED WINDS NEAR HURRICANE FORCE...OR FREQUENT GUSTS 
AT OR ABOVE HURRICANE FORCE...ARE CERTAIN WITHIN THE NEXT 
12 TO 24 HOURS. ONCE TROPICAL STORM AND HURRICANE FORCE 
WINDS ONSET...DO NOT VENTURE OUTSIDE! 

I know people are well familiar with the Katrina non-response. But it is nonetheless critical to remember how utterly unprepared this man is for the job he has been given. No great foresight was required. In addition to the many warnings like the one above, Bush was told, before going off to play guitar with country singer Mark Willis for photographers, by the director of the NHC Max Mayfield: "This is a category 5 hurricane, very similar to Hurricane Andrew in the maximum intensity, but there’s a big big difference. This hurricane is much larger than Andrew ever was. I also want to make absolutely clear to everyone that the greatest potential for large loss of lives is still in the coastal areas from the storm surge. … I don’t think anyone can tell you with any confidence right now whether the levees will be topped or not, but there’s obviously a very very grave concern."

Bush must be held to account.