Martin Garbus: An Incredible Day in America

Today, for two separate reasons, has been an incredible day in America. First, the United States has legitimized torture and secondly, the President has admitted to an impeachable offense.

First, the media has been totally misled on the alleged Bush-McCain agreement on torture. McCain capitulated. It is not a defeat for Bush. It is a win for Cheney.

Torture is not banned or in any way impeded.

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Secondly, the President in authorizing surveillance without seeking a court order has committed a crime. The Federal Communications Act criminalizes surveillance without a warrant. It is an impeachable offense.

Link:

http://www.huffingtonpost.com/martin-garbus/an-incredible-day-in-amer_b_12392.html

It's reported that the Army is forwarding a classified addendum to the new Army Field Manual on interrogation operations. According to these reports, the 10-page addendum provides dozens of examples of what procedures may and may not be used by interrogators, and it informs commanders on the circumstances for their employment.

This move amounts to an attempt by the Army to use the back door to establish secret interrogation techniques at the same time the new Field Manual on interrogation operations is coming out (later this month). It sends exactly the wrong message to the world and, more important, fosters the same kind of confusion and contradictory policies that have contributed to the abuse of detainees in Iraq, Afghanistan and Guantanamo Bay.

More at the link:

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/14/AR2005121402193.html

Congress will soon consider two amendments that threaten a descent into hypocrisy. Both have been tacked onto the defense authorization bill. A provision by Sen. John McCain (R., Ariz.) is an unconditional bar on torture - a prospect President Bush finds so damaging he is threatening to veto the entire bill.

But he won't have to, thanks to a recent amendment by Sen. Lindsay Graham (R., S.C.). This one bars Guantánamo detainees from going to federal court to enforce the rights that McCain would declare sacrosanct.

A shabby compromise is in the making. Bush removes his veto threat - as long as Graham's amendment remains in the bill - to transform McCain's principles into a hypocritical gesture: Listen up, world, we are against torture at Guantánamo - as long as nobody can complain about it.

To deflect critics, Graham has created an exception to allow Guantánamo inmates their day in court once they are finally convicted of a crime by a military tribunal. But this exception creates more perverse incentives. If a detainee has been victimized, the best way to cover it up is to hold him indefinitely as an "enemy combatant" and never send him before a military tribunal. That way, he will never get access to a federal court. At present, only nine of the 500 Guantánamo detainees have been charged with crimes, and none have yet been convicted. How long will it take for Americans to learn what is really going on inside?

More at the link:

http://www.philly.com/mld/inquirer/news/editorial/13401262.htm

... Bush signed an order allowing the NSA to spy on US citizens without a warrant. This is against the law. I have put references to the relevant statute below the fold; the brief version is: the law forbids warrantless surveillance of US citizens, and it provides procedures to be followed in emergencies that do not leave enough time for federal agents to get a warrant. If the NY Times report is correct, the government did not follow these procedures. It therefore acted illegally.

Bush's order is arguably unconstitutional as well: it seems to violate the fourth amendment, and it certainly violates the requirement (Article II, sec. 3) that the President "shall take Care that the Laws be faithfully executed."

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... this is something that no American should tolerate. We claim to have a government of laws, not of men. That claim means nothing if we are not prepared to act when a President (or anyone else) places himself above the law. If the New York Times report is true, then Bush should be impeached.

The Law:

... the Foreign Intelligence Surveillance Act. Its Section 1809a makes it a criminal offense to "engage in electronic surveillance under color of law except as authorized by statute."

FISA does authorize surveillance without a warrant, but not on US citizens (with the possible exception of citizens speaking from property openly owned by a foreign power; e.g., an embassy.)

FISA also says that the Attorney General can authorize emergency surveillance without a warrant when there is no time to obtain one. But it requires that the Attorney General notify the judge of that authorization immediately, and that he (and yes, the law does say 'he') apply for a warrant "as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance."

FISA link: http://www.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36.html

... circumvention of law in a nation of laws by the Chief Executive? Especially, when the actions taken by that executive ignore the lessons that were hard learned and codified into law for the express purpose of preventing the very actions taken?

The Foreign Intelligence Surveillance Act of 1978 (or FISA) provides the framework for how surveillance by covert agencies may or may not be done. The Bush Administration has put forth the argument that FISA had to be circumvented due to immediate need for surveillance of subjects in the aftermath of 9/11 due to urgent national security concerns. But this is a lie.

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Congressional leaders of both parties have called for hearings on the subject.

They would do well to remember that, in a nation of laws, neither the President nor members of Congress are above the rule of law. And that the nation is watching to see if anyone will be held to account for the machinations and lies of King George. If the Congress does not hold this Administration to account, then the public will do so in the 2006 elections. Period.

Much more at the link:

http://firedoglake.blogspot.com/2005_12_01_firedoglake_archive.html#113484213149263316

... that is the moment that the United States of America becomes a dictatorship because -- ask any lawyer -- all that separates a democracy from a dictatorship is process of law standing between rulers and citizens.

When a President can prosecute a citizen simply by writing their name on a piece of paper, or whispering to the police -- when the President has the power to make a citizen a criminal by naming him or her a criminal -- that is the mark of a dictatorship. And that is exactly what the Yoo memo claims.



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John Yoo's memo argues that because there is terrorism in the world, the President of the United States can do whatever he wants, to anyone, at any time, without justification or warning -- and it is all legal.

Link:
http://www.dailykos.com/story/2005/12/17/83253/190

... the law — which is illegal."

Susan Low Bloch, a professor of constitutional law at Georgetown University Law Center, said the president needs authorization from Congress for this kind of activity — or risk adverse rulings from the Supreme Court has it has with other post-Sept. 11 changes.

"He's taking a hugely expansive interpretation of the Constitution and the president's powers under the Constitution," she said.

That view was echoed by congressional Democrats.

"I tell you, he's President George Bush, not King George Bush. This is not the system of government we have and that we fought for," Sen. Russell Feingold, D-Wis., told The Associated Press.

Added Sen. Patrick Leahy (news, bio, voting record), D-Vt.: "The Bush administration seems to believe it is above the law."

Republican Sen. Arlen Specter (news, bio, voting record) of Pennsylvania, chairman of the Senate Judiciary Committee, on Friday said the NSA program was inappropriate and he promised hearings soon.

Link:

http://news.yahoo.com/s/ap/20051217/ap_on_go_pr_wh/bush;_ylt=ApmZTf_ZJJLMY42skbsHjeas0NUE;_ylu=X3oDMTA2Z2szazkxBHNlYwN0bQ--