- Marjorie Cohn is a distinguished law professor at Thomas
Jefferson School of Law in San Diego where she's taught since 1991 and
is the current president of the National Lawyers Guild. She's also been
a criminal defense attorney at the trial and appellate levels, is an author,
and has written many articles for professional journals, other publications,
and for noted web sites such as Global Research, ZNet, CounterPunch, AfterDowning
Street, Common Dreams, AlterNet and others. Her long record of achievements,
distinctions and awards is broad and varied for her teaching, writing and
her work as a lawyer and activist for peace, social and economic justice.
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- Cohn's latest book just published, and subject of this
review, is titled "Cowboy Republic: Six Ways the Bush Gang Has Defied
the Law." It provides a thorough, impressive and incisive account
of the most important ways the Bush administration defied, defiled and
weakened the rule of law and by so doing hurtled the nation toward tyranny.
This book is an essential guide to their lawless record, its threat to
the nation and world, and the desperate need to confront it, challenge
it and remove it from office before it's too late. The stakes couldn't
be greater - the fate of the republic hangs by a thread as well as all
humanity if people of conscience fail to act and swiftly. Cohn's book
lays out the problem clearly. The rest is up to us.
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- Richard Falk, Professor Emeritus of International Law
at Princeton University, introduces what's to follow in his brief introduction
to Cohn's book. In it, he states the most important lesson of the disastrous
Iraq war is that "adherence to international law serves the national
(as well as) human interest in time of war." More than at any other
time, with the nation at war, US presidents can practically operate as
dictators outside the normally constraining check and balancing influences
of the other two branches of government, when they choose to use them.
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- For the past six and a half years, they've been nowhere
in sight, and George Bush took full advantage. He's defied constitutional
and international law with arrogance and impunity including the Nuremberg
Principles defining what constitutes a war crime. Falk quotes its chief
prosecutor, Justice Robert Jackson, saying ...."the record on which
we judge these (Nazi) defendants today is the record on which history will
judge us tomorrow." Throughout our history, pre and post-Nuremberg,
this nation broke the "Nuremberg promise....repeatedly" but never
to the degree as under George Bush. That's the legacy he'll pass to future
administrations they'll have to live with and confront as an obstacle in
an attempt to move ahead. Their job won't be easy.
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- Introduction
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- Cohn begins her book with a definition of "cowboy"
applicable to George Bush - one "who undertakes a dangerous or sensitive
task needlessly." Other definitions refer to someone who's "reckless,
aggressive or irresponsible." Those characterizations pretty much
sum up the record of the current President who won't go down in history
like the legendary heros who won the West and most dictionaries say are
"hired hands who tend cattle and perform other duties on horseback"
on the range "where the deer and antelope play."
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- Despite our nominal constitutional protections, Cohn
recounts how the history of the country was marked by abuses of power going
back to the Alien and Sedition Acts under John Adams. They were enacted
to stifle dissent in time of possible war, but, in fact, were used against
Republican opponents to deny them what Jefferson called "the highest
form of patriotism" - the right to dissent.
-
- Our reputed greatest President, Abraham Lincoln, followed
in Adams' tradition during the Civil War. He suspended habeas and other
civil liberties, instituted an unfair draft, blatantly abused his power
overall and functioned ad libitum as a virtual dictator. Woodrow Wilson
was no different, and so was Franklin Roosevelt, both of whom justified
their right to set aside constitutional protections in time of war. No
evidence suggests doing it helped. There's plenty, however, to prove they
weakened the republic making it easier for future Presidents to take even
greater liberties interpreting the law as they wished. Enter George Bush.
Case closed.
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- Cohn notes that few Americans understand international
law, or the Constitution either, for that matter, aside from some pro forma
words they can recite perfunctorily but not explain. They also don't know
international law is US law as well under the Supremacy Clause of the Constitution.
It states all treaties "shall be the supreme Law of the Land."
They include the UN Charter, four Geneva Conventions, the UN Convention
Against Torture banning any form of the practice at all times for any reason,
and all other treaties the nation signs. Sadly, Cohn observes, constitutional
and international law "didn't prevent a series of executive branch
violations in the 1960s (under Lyndon Johnson mostly) and 1970s (egregiously
under Richard Nixon) when the executive branch" operated outside the
limits of the law they were sworn to uphold but didn't.
-
- Cohn then gets into the meat of her important book recounting
George Bush's six specific appalling abuses of power still raging unrestrained
out of control and in recent days got even worse as explained below.
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- A War of Aggression
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- International law bans premeditated aggressive war under
any conditions. The UN Charter clearly states a nation may only use force
under two conditions: when authorized to do it by the Security Council
or under Article 51 that allows the "right of individual or collective
self-defense if an armed attack occurs against a Member....until the Security
Council has taken measures to maintain international peace and security."
In other words, self-defense is permissible but an unprovoked attack on
another nation violates sacred international law and constitutes what the
Nuremberg Charter called "the supreme international crime against
peace."
-
- Clear evidence exists that the Bush administration intended
to attack Afghanistan and Iraq prior to 9/11. All that was needed (as laid
out in 2000 by the neoconservative Project for a New American Century -
PNAC) was "some catastrophic and catalyzing event - like a New Pearl
Harbor" to militarize the nation and wage aggressive war. On 9/11,
the Bush administration got its wish and "swung into action"
by going to war based on deceit and lies about invalid threats and for
reasons other than stated.
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- Former CIA head of counterintelligence, Vincent Cannistraro,
later acknowledged it was based on "cooked intelligence." And
CIA analyst Michael Scheuer said the agency was resigned "that we
were going to war" and no facts or analysis would stop it. In addition,
an August 6 John Conyers-ordered report found that "members of the
Bush administration misstated, overstated, and manipulated intelligence
with regards to linkages between Iraq and Al Queda; the acquisition of
nuclear weapons" along with other lies to justify war including so-called
WMDs known not to exist years earlier.
-
- In July, 2002, the New York Times got access to a highly
classified document titled "CentCom Courses of Action" containing
what the Pentagon called a "war plan" to invade Iraq. It began
in earnest as a secret air war in May, 2002 that by end of August "had
become a full air offensive," according to the London Sunday Times.
British MI 6 chief Richard Dearlove then revealed the secret contents
of the so-called Downing Street memo based on a July, 2002 Washington meeting
where "the facts (to justify war with Iraq) were being fixed around
the policy."
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- Earlier on September 18, 2001, the administration set
off on the road to war with the joint House-Senate resolution passage of
the Authorization for Use of Military Force (AUMF). It authorized "the
use of United States Armed Forces against those responsible for the recent
attacks launched against the United States." Then in October, 2002,
Congress surrendered its authority to George Bush by passing the Joint
Resolution to Authorize the Use of United States Armed Forces Against Iraq
to "defend the national security of the United States against the
continuing threat of Iraq." Republicans and Democrats acted together
knowing Iraq posed no threat and that its action violated the UN Charter.
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- Cohn explains the real motive behind attacking, invading
and occupying Iraq that by now a bright ten year old understands. Paul
Wolfowitz finally admitted using WMDs as an excuse was "for bureaucratic
reasons" and the one pretext everyone could agree on. He later had
to admit what everyone already knew. The real issue is oil and the fact
that Iraq potentially has more of the cheap light sweet easily accessible
kind than any other country on earth, including Saudi Arabia. One Wall
Street oil analyst calls the country "the most valuable real estate
on the planet" and the last of the "low-hanging fruit."
-
- Solidifying a huge military presence in the region is
also key with the US well-entrenched now on 106 known sites, including
four super bases (with more planned) as large as small towns and with all
their amenities, and a Vatican-sized largest embassy in the world. The
Middle East is where two-thirds of proved oil reserves are located, and
that fact was never lost on present and prior US planners. Notions of
WMDs, removing a dictator, protecting national security, preventive self-defense,
establishing democracy and conducting a humanitarian mission were all concocted
rubbish. Sadly, it was believed by most people and too many still do, the
result of lots of forced-fed dominant media hyperventilating help round
the clock and on board with the administration to the bitter end for an
illegal venture gone sour.
-
- Along with so many other violations of international
law, Cohn noted the Bush administration ignored the International Covenant
on Civil and Political Rights (ICCPR) that's part of US law "under
the Supremacy Clause of the Constitution." Article I (1) says: "All
people have the right of self-determination. By virtue of that right they
(can) freely determine their political status and (can) freely pursue
their economic, social and cultural development." Cohn stated the
US had no "legal authority to intervene in the affairs of the Iraqi
people and choose their leadership for them."
-
- The Bush administration set about doing it in March,
2003. It followed the secret air war it waged months earlier as a softening
up action for the "shock and awe" to come that the New York Times
praised as "almost (having) biblical power." The entire corporate
media also ignored the use of illegal weapons like depleted uranium, white
phosphorous, and cluster bombs that keep killing and maiming long after
the end of battle. In addition, experimental weapons are freely used, some
targeting innocent civilians to inflict terror, and all intended to subdue
a population hostile to a foreign occupier.
-
- These are "weapons of mass destruction," stated
Cohn. She also cited the Geneva Convention Relative to the Protection of
Civilian Persons in time of War (Geneva IV). It calls "willfully causing
great suffering or serious injury to body and health" a grave breach
of law. The Bush administration deliberately flouts the law and "is
committing war crimes with its use of these weapons." The result
since March, 2003 alone has been mass deaths in appallingly high numbers,
immeasurable human misery and suffering, and destruction on an enormous
scale - all of which is still ongoing daily with innocent civilians afflicted
most.
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- Has it made the US and world safer? Hardly, by any measure
and quite the opposite, in fact, according to an April, 2006 National Intelligence
Estimate Cohn quoted. It stated the Iraq conflict became "a 'cause
celebre' for jihadists, breeding deep resentment (against the US) in the
Muslim world (and) shaping a new generation of terrorist leaders and operatives."
In committing "the supreme international crime against peace"
against two nations, the US has become "the greatest menace of our
times," quoting Nuremberg chief Justice Robert Jackson's reference
to the crime of aggression and by implication any nation committing it.
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- The Torture of Prisoners
-
- Post-9/11, "the gloves came off" said former
CIA Counterterrorism Center chief, Cofer Black, now part of the paramilitary
mercenary operation at Blackwater, USA operating freely outside the law
as thuggish hired guns in Iraq, New Orleans and coming soon to a neighborhood
near you. Cohn noted "Soon after 9/11, senior administration lawyers
wrote memoranda to redefine and justify torture" along with most everything
else they planned outside domestic and international law. George Bush announced
Geneva Conventions didn't apply to Guantanamo prisoners, and Alberto Gonzales
(as White House legal council) sweepingly called them "quaint"
and "obsolete" in 2002. What they had in mind is anything goes
and that includes torture even though it's widely known not to elicit useful
information. It's also known as an effective terror weapon and a useful
means of social control.
-
- The practice is also abhorrent and violates at least
two US laws - the 1996 War Crimes Act and 1994 Torture Statute. That's
along with numerous widely accepted international ones, even though all
too frequently many countries, including so-called "civilized"
ones, don't observe them. We all know what happened since from the appalling
abuses at Guantanamo, Abu Ghraib and at secret CIA and Pentagon 'black
sites" around the world. They're in countries known to use torture
and are now in league with US agencies doing it for whatever favors they're
getting in return.
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- Cohn reviewed some of the laws banning torture including
the 1994 Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment than bans mistreatment as well as torture. The
US is also "party to the International Covenant on Civil and Political
Rights (ICCPR)" that guarantees the right to life and prohibits cruel,
inhuman and degrading treatment. She then notes "the most famous anti-torture
treaties are the four Geneva Conventions (of 1949). The first two provide
for the protection of sick and wounded (forces in battle)." The third
one defines who is a prisoner of war "and establishes minimum standards"
for POW treatment. The fourth convention applies to civilians and affords
them protections during war that require they be treated humanely.
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- All four conventions have a common thread called Common
Article Three. "It requires that persons taking no active part in
hostilities (including the detained) be treated humanely at all times."
War crimes are grave breaches under Geneva, and the 1996 War Crimes Act
provides up to life imprisonment or the death penalty for persons convicted
of committing war crimes within or outside the US. Administration memos
from officials like Gonzales as well as John Yoo and Jay Bybee (writing
for the DOJ Office of Legal Council) advised Al-Queda and Taliban interrogators
were exempt from these laws "under the President's commander-in-chief
powers." Cohn explained "the Torture Convention permits no such
exemption, even during wartime."
-
- As bad or worse was narrowing and distorting definitions
with Yoo and Bybee writing psychological harm must last "months or
even years" to be torture. Cohn noted Yoo was the architect of the
repressive Patriot Act and domestic surveillance program. Bybee was later
appointed to the US Court of Appeals for the Ninth Circuit proving lawlessness
is rewarded as long as lawbreakers have friends in high places.
-
- Cohn reviewed how torture was authorized at the highest
level with damning evidence from human rights organizations like Human
Rights Watch, Amnesty International and the International Committee of
the Red Cross (ICRC). They've shown how widespread it's been in Iraq, Guantanamo
and at all secret "black sites." Human Rights Watch also documented
that its use is "systematic" and known "at varying levels
of command" with explicit testimony proving it.
-
- The human consequences are devastating and widespread
with the ICRC saying as many as 90% of persons detained were arrested by
mistake. Seton Hall University Law School professor Mark Denebeaux and
others analyzed unclassified government data gotten through FOIA requests,
basing their report on evidentiary summaries from 2004 military hearings.
They learned the majority of Afghan prisoners at Guantanamo weren't accused
of hostile acts and 95% of them were seized by Afghan bounty hunters who
"sold" them to US forces for $5000 per claimed Taliban and $25,000
for supposed Al-Queda members.
-
- What they endure as a result is horrific with Cohn detailing
how they're treated that's reminiscent of the Spanish Inquisition or the
worst abuses under the Nazis. They amount to a menu of "sadistic,
blatant, and wanton criminal" acts against innocent people, including
women and children.
-
- One particularly appalling procedure is force-feeding
applied to as many as one-third of Guantanamo detainees and an unknown
number of prisoners elsewhere. The practice is so violent, it amounts to
torture. Tubes, at times the thickness of fingers, are inserted in the
nose and thrust all the way down throats and into stomachs causing extreme
pain, vomiting up blood, and even greater pain when tubes are removed with
blood gushing out in the process.
-
- One victim of this practice described the pain as "unbearable,"
and attorney Julia Tarver (representating Guantanamo clients) explained
physicians violated their Hippocratic Oath to do no harm by being a part
of it. The 53-nation UN Human Rights Commission also confirmed in 2006
that "doctors and other health professionals are participating in
force-feeing detainees" by this method that amounts to horrific torture.
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- Cohn noted an August, 2004 Independent Panel to Review
Department of the Defense Detention Operations report called the Schlesinger
Report. It concluded "Policies approved for use on al Queda and Taliban
detainees (who never got Geneva protection but should have)....(are also)
applied to detainees who did fall under" Geneva. Another August,
2004 Army report indicated the most extreme abuses "are, without question
criminal."
-
- They're also done "by proxy" at "black
sites" and through the illegal practice of "extraordinary rendition"
with victims secretly sent to other countries where they disappear into
torture-prison hellholes, out of sight and mind. The Convention against
Torture prohibits what's called "refoulement - expelling, returning,
or extraditing a person to another country where there are substantial
grounds to believe he would be in danger of being tortured." Popular
sites include Egypt, Syria, Saudi Arabia, Jordan, Pakistan, Uzbekistan,
Morocco, Ethiopia and other repressive countries. Cohn quoted a former
CIA agent saying: "If you want a serious interrogation, you send a
prisoner to Jordan. If you want them to be tortured, you send them to Syria.
If you want someone to disappear....you send them to Egypt."
-
- With the Bush administration earmarking $63 billion in
arms sales or giveaways to client Middle East countries like Israel, Saudi
Arabia, Egypt and others, things are guaranteed to get worse and may become
explosive and out of control. Increased violence will follow deliveries
and with it abusive torture and much more.
-
- On July 19, 2007, after the publication of Cohn's book,
George Bush's arrogance, contempt for the law and hypocrisy were on display
again in one package contained in another sweeping executive order (EO).
According to AP, he "breathed new life into the CIA's terror interrogation
program (aka no holds barred torture) that would allow harsh questioning
of suspects limited in public only by a vaguely worded ban (signifying
none whatever) on cruel and inhuman treatment."
-
- The order pretends to prohibit some practices, "to
quell international criticism," describes them only vaguely, and doesn't
say what practices are still allowed. The Bush administration insists
its interrogation operation is one of its most important tools in the "war
on terrorism." Bottom line - ugly business as usual will continue
unchanged and unchecked, except for the doublespeak language signifying
only deception from a President exposed as a serial liar.
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- Summary Execution and Willful Killing
-
- Summary executions, or extra-judicial murders, have long
been practiced by past US governments with rogue agencies like CIA masters
of the black art and skilled at covering its tracks. The Bush regime cares
little about subtleties, so its operatives wantonly and openly engage in
this simple way of removing adversaries even though Cohn stated: "Willful
killing is a grave breach of the Geneva Conventions (and) punishable as
a war crime under the US War Crimes Act."
-
- In the wake of the Vietnam war and Watergate, Gerald
Ford (because of necessity, not conviction) issued an executive order banning
assassinations, but George Bush revoked it secretly in December, 2001.
He established a "special-access program" authorizing "clandestine
Special Forces to snatch or assassinate anyone considered a 'high value'
al-Queda operative, anywhere in the world."
-
- George Bush, with roguish intent, turned a blind eye
to willful murder, opening the door to mass, indiscriminate slaughter in
Iraq, Afghanistan or anywhere in the world he chooses, including targets
at home. In occupied countries, it's allowed the military to operate in
so-called "free-fire zones" with orders to shoot anything that
moves. It sanctioned the use of terror weapons against resistance and
civilian targets with casualties in the latter instance brushed off as
"collateral damage."
-
- All Iraq is a "free-fire zone" even though
the Fourth Geneva Convention bans collective punishment against an occupied
people. The results have been horrific with cities like Fallujah suffering
most. The US November, 2004 attack there killed as many as 6000 civilians,
the result of vengeful indiscriminate assaults against defenseless people
who just happened to live there. In November, 2005 a smaller massacre took
place in Haditha where US Marines slaughtered 24 unarmed civilians "execution-style."
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- Authorizations for these and other banned practices come
right from the top with troops in the field likely believing they're licensed
to kill by their commander-in-chief, DOD boss and top Pentagon brass. They're
right.
-
- Cohn noted allegations are that "US troops have
engaged in (routine) summary executions and willful killing (across the
country in cities like) Qaim, Abu Ghraib, Taal Al Jal, Mukaradeeb, Mahmudiya,
Hamdaniyah, Samarra, Salahuddin and Ishaqi" along with British forces
doing the same thing in Basra and southern Iraq where they're based. It's
so simple and common a practice that one US soldier described it as easy
as "squashing an ant" with no greater price to pay for it. The
Bush administration and military command are contemptuous of Iraqis and
show it by the huge numbers of innocent people they slaughter daily. In
so doing, they commit the worst kinds of war crimes along with torture,
abuse and neglect discussed above.
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- The Guantanamo Gulag
-
- Cohn noted that Amnesty International described this
hellhole as "the gulag of our times." Already discussed is the
fact that most people sent there, and still held, were innocent bystanders
snatched in Afghanistan by bounty hunters able to cash in on a huge payday
at the cost of an innocent human being's freedom.
-
- Cohn explained that holding detainees at Guantanamo violates
US and international law, and the prison camp itself is illegal. She recounted
how "the Gitmo story start(ed) in 1903, when the US Army occupied
Cuba after its war of independence against Spain." The Platt Amendment,
authorizing US intervention, "was included in the Cuban Constitution
as a prerequisite for the withdrawal of US troops from the rest of Cuba."
However, it only allowed for the right to use Guantanamo Bay "as coaling
or naval stations, and for no other purpose." Franklin Roosevelt
then signed a new treaty with the island state in 1934 for the same purpose
with no provision to use the territory as an offshore prison camp or military
base. Franklin Roosevelt never met George Bush.
-
- Cohn explained it's "no accident that the Bush gang"
chose this spot for its gulag, one of many offshore. All along, the administration
"maintained that Guantanamo Bay is not a US territory" so US
courts and US law have no jurisdiction there. The result is what Cohn
called "indescribable torture," and she listed some of the barbaric
methods used.
-
- She also discussed "due process" the Bush administration
denied all Guantanamo detainees with the Supreme Court disageeing in Rasul
v. Bush. In the decision, the Court "settled the jurisdictional question"
saying the US exercises "complete jurisdiction and control" at
the base with all aliens held there "entitled to invoke the federal
courts' authority" under their habeas rights. The Court also rebuked
the Bush administration in Hamdi (a US citizen) v. Rumsfeld with Justice
O'Conner saying "a state of war is not a blank check for the President
when it comes to rights of the Nation's citizens."
-
- In response, the administration established Combatant
Status Review Tribunals (CSRT) "ostensibly to comply" with Rasul.
They do not as prisoners under them were only entitled to a "personal
representative," not a trained attorney able to defend their due process
rights. Detainees were also only allowed to see summaries of unsubstantiated
classified evidence against them, requests for witnesses were rarely granted,
and their "representatives" ill-served them in tribunal hearings.
As a result, they got no justice.
-
- Cohn quoted attorney Joseph Margulies saying: "The
CSRT is the first time in US history in which the lawfulness of a person's
detention is based on evidence secured by torture that's not shared with
the prisoner, that he has the burden to rebut and without the assistance
of council." Cohn then added: "CSRT violates the International
Covenant on Civil and Political Rights which prohibits arbitrary detention
and guarantees a detainee the right to be informed of the reason for his
detention," the right to council, to examine witnesses, to call witnesses,
and "the right to the presumption of innocence."
-
- Shamefully, the Republican-led Congress backed the administration
by passing the Detainee Treatment Act (DTA) in December, 2005. It prevents
US courts from hearing habeas petitions filed after the date of DTA. Cohn
explained "the Supreme Court (then) stepped in again in Hamdan v.
Rumsfeld after the Bush administration charged this man (supposedly bin
Laden's driver) with one count of conspiracy "to commit....offenses
triable by military commission." It held that Congress didn't intend
to deny detainees like Hamdan their right to federal court jurisdiction,
and that Geneva Conventions do apply.
-
- Cohn then reviewed the outrageous Military Commissions
Act (MCA) of 2006, aka "the torture authorization act." It grants
the administration extraordinary unconstitutional powers to detain, interrogate
and prosecute alleged terror suspects and anyone claimed to be their supporters.
In addition, it allows the President the right to call anyone anywhere
in the world an "unlawful enemy combatant" and empowers him to
arrest and incarcerate those accused indefinitely in military prisons without
corroborating evidence proving guilt.
-
- It also annuls habeas for anyone charged, lets the President
decide what constitutes torture, grants US officials retroactive immunity
from past crimes, prohibits detainees from invoking Geneva rights, allows
"unlawful enemy combatants" and civilians to be tried by military
commissions that can impose death sentences with no right of appeal, makes
torture-extracted and hearsay evidence permissible, sanctions indefinite
and secret detentions and more.
-
-
- Cohn asked: "So how unconstitutional is the Military
Commissions Act? Let us count the ways. MCA violates the Suspensions Clause
of the Constitution by denying non-US citizens (and citizens, too) any
meaningful opportunity to challenge the legality of their detention."
It also violates Geneva plus the Fifth and Sixth Amendments. Above all,
it violates the spirit and letter of the law and a nation claiming a tradition
of respecting it. No longer under George Bush, who flouts the law openly,
but it happened often earlier as well whenever past Presidents like Adams,
Lincoln, Wilson, Franklin Roosevelt, Nixon, Johnson, Reagan and others
ignored or twisted the law for political purposes. None, however, did
it as brazenly, openly and systematically as George Bush who as chief executive
believes the law is what he says it is. And never before was Congress
and the courts as willing to go along with him as now.
-
- Cohn quoted a former military linguist saying "A
stench of despair hangs over Guantanamo," and one detainee told his
lawyer he'd rather die than stay there. Many have tried taking their lives
and a few succeeded. The National Lawyers Guild, Association of American
Jurists, Amnesty International and other human rights organizations all
agree that Guantanamo (and all "black site" and other torture-prison
hellholes) are a blight on the soul of America, they should be closed,
and all detainees held at them released or charged with criminal offenses
"in accordance with international legal norms."
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- Spying on Americans
-
- Cohn recounted how on December 16, 2005, the New York
Times "unleashed a bombshell" its editors knew about a year earlier
but suppressed at the request of the administration. It reported "George
W. Bush had been secretly spying on Americans without warrants since late
2001. The next day, Bush confirmed that he had authorized the National
Security Agency (NSA) 'to intercept the international communications of
people with known links to al Queda' and related terrorist organizations."
The operation was called the "Terrorist Surveillance Program."
-
- Cohn noted "wiretapping without probable cause or
judicial oversight violates both the Foreign Intelligence Surveillance
Act (FISA) and the Fourth Amendment." Thousands have been affected
by it, and Cohn believes the administration used the program to target
its critics. It's a throwback to "the bad old days of FBI Director
J. Edgar Hoover" and his domestic spying programs begun in the 1940s
or earlier. It was used then, later and now to monitor, threaten and silence
Americans (or anyone else) with "unorthodox political views"
meaning they disagreed with government policies like McCarthy witch-hunts,
racial abuse, the Vietnam war and most everything George Bush does.
-
- The FBI began its COINTELPRO (counterintelligence program)
in 1956 to "expose, disrupt, misdirect, discredit and otherwise neutralize"
political and activist groups like the American Indian Movement, Black
Panthers, Martin Luther King, and Vietnam war protesters. Richard Nixon
later used national security wiretaps and illegal break-ins to target his
political enemies. He had a long list of them.
-
- Congress responded in 1978 to stop these practices with
the Foreign Intelligence Surveillance Act (FISA) "to regulate electronic
surveillance (while also) protecting national security." The law established
the Foreign Intelligence Surveillance Court (FISC). Its judges are appointed
by the Chief Justice of the Supreme Court. They meet in secret "to
consider applications for wiretap orders" when government must convince
a judge probable cause exists to believe the target in question is a foreign
power or its agent. FISA wiretap limitations don't apply for foreign nationals
abroad. "Its restrictions are triggered only when the surveillance
targets a US citizen or permanent resident or when the surveillance is
obtained from a wiretap physically located within the United States. Also,
FISA specifically covers warrantless wiretaps during wartime," only
for the first 15 days after war is declared, and can't be used against
US citizens.
-
- Nothing deters George Bush, his Justice Department and
compliant spy agencies. As Cohn put it, he made "and end run around
FISA" and now can do it "legally" as of August 5 with more
on that below. Earlier in late 2001, he sidelined FISC with a secret executive
order establishing his Terrorist Surveillance Program. It authorized NSA
to monitor phone and computer communications of Americans in the US at
NSA's discretion - in other words, illegal warrantless spying on domestic
communications of anyone for any reason, law or no law. Cohn noted Bush
(as far as we know) is the first President to defy FISA since its 1978
enactment. He's now set a shameless precedent for others later on.
-
- He also ignores the Fourth Amendment's protection against
unreasonable searches and seizure to protect against police state practices.
Cohn explained the Supreme Court "consistently declared that a judge
must determine whether probable cause exists." George Bush flouts
this ruling with impudence and arrogance. It's of no concern to him that
the American Bar Association and the National Lawyers Guild declared his
warrantless surveillance program violates the law of the land. He believes
he's the law and can do what he pleases.
-
- Alberto Gonzales is a war criminal marching in lockstep
with his boss and continues to shame the Justice Department he heads.
He falsely and criminally maintains Congress' Authorization for the Use
of Military Force (AUMF) in September, 2001 provided legal justification
for warrentless surveillance outside of FISA. Former Senator Gary Hart
called such actions "a repeat of the Nixon years." Back then,
he justified it because of civil unrest in protest against the Vietnam
war. Today, it's the phony "war on terrorism" and raging ones
in Iraq and Afghanistan. Cohn emphasized "Bush has already gone far
beyond what the Constitution authorizes, and FISA makes it a crime."
At least that was so until August 5.
-
- The Terrorist Surveillance Program isn't the only secret
spying the Bush administration authorized, but now it's got a Congress-sanctioned
warrantless open field to do it without court oversight at the discretion
of the Attorney General (AG) and/or Director of National Intelligence (DNI).
Prior to its August recess, Democrats and Republicans cravenly caved to
the politics of fear and hastily passed the White House crafted Protect
America Act 2007 amending FISA in doublespeak language Orwell would love.
-
- It will supposedly close so-called "communication
gaps" but will allow virtual unrestricted mass data-mining monitoring
and intercept of domestic and foreign internet, cell phones and other new
technology as well as transit international phone call traffic and emails.
The Act claims to restrict surveillance to foreign nationals "reasonably
believed to be outside the United States" and will sunset in six months
unless renewed. In fact, the new law targets everyone including US citizens
inside the country if the AG or DNI claim they pose a potential terrorist
or national security threat, and no evidence is needed to prove it. Further,
in an election year, renewal is absolutely guaranteed, possibly with even
harsher provisions added.
-
- In point of fact, this law allows virtual unrestricted
warrantless spying targeting anyone for any claimed national security reason.
It thus renders any notion of illegal searches and privacy rights null
and void. This hellish Act effectively legalizes illegality by Fourth Amendment
standards that Patriot Act provisions pretty much swept away earlier. This
is how things work in a police state where laws render privacy issues (and
all other freedoms) null and void and everyone is under constant surveillance
and stripped of their rights.
-
- Even without the new law, however, the administration
had in place a menu of past and current programs that combined amount to
"big brother" writ large and now is getting larger. In May, 2006,
it was learned Verizon Communications, AT & T, and BellSouth provided
NSA with telephone and internet communications flowing into and out of
the country having nothing to do with national security. Cohn quoted the
New York Times reporting a senior government official saying the program
confirmed NSA was able to access most all phone calls in the country. It
means everyone is being listened to illegally so the spy agency knows everything
about us from the health of our family to what toppings we like on our
takeout pizza.
-
- Data mining violates the 1986 Stored Communications Act,
but there's lots more. The "Bush gang" secretly collects our
most personal information from an operation called the Terrorist Finance
Tracking System. With no court-approved authorization, they've been accessing
records from a huge international database to examine the banking, credit
card and other financial transactions of many thousands of Americans in
the country. It amounts to a secret end run around bank privacy laws requiring
the government to show cause for why these records are relevant to an investigation.
-
- Still more civil liberties have been lost the result
of Patriot act justice. It targets anti-war protesters and political activists
hostile to Bush administration policies. The new law makes their actions
crimes of domestic terrorism when they're only, in fact, expressions of
constitutionally guaranteed freedoms, including our most sacred First amendment
ones.
-
- Post-9/11, other unconstitutional speech-related monitoring
began as well, including the short-lived Terrorism Information and Prevention
System (Operation TIPS). The idea was to use civilian informers like postal
employees to report "unusual" neighborhood activities, police-state
style. The scheme flopped when the postal service refused to be spies.
-
- Then, there was the Pentagon's Total Information Awareness
(TIA) renamed Terrorism Information Awareness to monitor anything about
anyone under the spurious cover of it relating to "terrorism."
TIA came under considerable congressional flack but some or all of its
activities continue under new names relating to other Pentagon projects
and initiatives so illegal military spying continues unabated.
-
- One such program is called the Threat and Local Observation
Notice (TALON) to collect domestic intelligence by amassing a huge database,
again spuriously related to "terrorism." It focuses on war protesters
targeted by police state monitoring of their constitutional right to freely
oppose the nation's illegal wars of aggression the Bush administration
says are justified to protect against threats to national security. The
Pentagon had second thoughts about it after drawing flack for illegally
targeting peace activists. Its spokesperson called the program's results
disappointing and doesn't warrant being continued as currently constituted
in light of its image in Congress and the media as of last spring.
-
- What's likely is that TALON's activities are now rebranded
and continuing like all the other illegal intrusive spying known about
or still secret. They include those run by the Pentagon now authorized
to operate freely on US soil in the aftermath of last year's Defense Authorization
Act revising the 1807 Insurrection Act and 1887 Posse Comitas. The change
gives the President the right to deploy the military on US soil in the
name of national security or "war on terrorism." It means, for
the first time ever, federal troops can legally operate inside the country
any time George Bush gives the order.
-
- It gets even worse. On May 30, 2002, John Ashcroft and
FBI Director Robert Mueller revealed sweeping new surveillance powers for
this agency with a wide latitude to spy more effectively on law-abiding
US citizens. The new "diktat" lets the FBI conduct investigations
up to a year without having to show suspicion of criminal activity. They
can target anyone they choose, peering anywhere they wish into our personal
lives, that's none of their business, to document trips we take, books
and publications we read, internet sites visited, political and charitable
contributions made, meetings attended and more. Anyone seen criticizing
the government is fair game, especially if it relates to the Iraq and Afghan
wars.
-
- Another new data mining program is being used by police
and federal authorities in some states. It's called MATRIX standing for
the Multistate Anti-Terrorism Exchange Program. An ACLU 2004 White Paper
explained "it involves not the attempt to learn more facts about known
suspects, but (is a form of) mass scrutiny of the lives and activities
of innocent people.... to see whether each of them shows any signs of being
a terrorist or other (type) criminal."
-
- MATRIX creates a "terrorism quotient" or High
Terrorist Factor (HTF) measuring the likelihood individuals in the database
are terrorists. The ACLU believes the program is "an effort to recreate
the discredited Total Information Awareness (TIA) data mining program at
the state level." It shows the federal authorities are deep into efforts
at all levels to spy on US citizens. MATRIX is another unprecedented effort
to do it within or outside the law and constitutes a massive invasion of
privacy and violation of our rights in a free society, along with all
other post-9/11 unconstitutional spying invasions by any of the nation's
16 spy agencies.
-
- The Constitution doesn't specifically mention a right
to privacy, but Supreme Court decisions affirmed it over the years as a
fundamental human right. As such, it's protected under the Ninth Amendment
as well as the Third prohibiting the quartering of troops in homes, the
Fourth affording protection from unreasonable searches and seizures, and
the Fifth protecting against self-incrimination. MATRIX and other intrusions
enhance Patriot Act powers allowing them to persist outside of congressional
oversight and judicial review. It's another part of the overall scheme
to subvert the rule of law under George Bush police state justice.
-
- It advanced another step on July 17, after "Cowboy
Republic" was published, when George Bush issued another of his many
presidential "one-man" decrees. It was titled "Executive
Order: Blocking Property of Certain Persons Who Threaten Stabilization
Efforts in Iraq." This unconstitutional action effectively criminalizes
dissent and shifts the nation another perilous step closer to tyranny.
It targets the anti-war movement in an effort to further weaken and defuse
it. It also adds another unconstitutional layer onto the repressive Patriot
Act author, analyst and activist Jennifer Van Bergen says has been built
on to "establish a permanent framework for repression of free speech
and dissent." All "activists (now) = terrorists" as the
administration cracks down hard to control, suppress and remove all opposition.
-
- In his important and revealing 1980 book "Cracks
in the Constitution," Ferdinand Lundberg stated the US Constitution
"nowhere implicitly or explicitly gives the President (the) power
(to make) new law" by issuing "one-man", often far-reaching"
executive order decrees. But, Lundberg explained "the President in
the American constitutional system is very much a de facto king....(he
is) by far the most powerful formally constituted political officer on
earth." He has "vast power (and) stands in a position midway
between a collective executive (like in the UK) and an absolute dictator."
-
- George Bush proves Lundberg was right and then some.
He's taken full advantage, within and outside the law, of what Lundberg
called the "essence of presidential power....in a single (vaguely
worded) sentence." Specifically, Article II, Section 1 reads: "The
executive power shall be vested in a President of the United States of
America." That simple statement, easily passed over and misunderstood,
means the near-limitless power of this office is "concentrated in
the hands of one man" free to abuse it if he chooses. Article II,
Section 3 then almost nonchalantly adds: "The President shall take
care that the laws be faithfully executed" while not saying Presidents
are virtually empowered to make laws as well as execute them although nothing
in the Constitution permits this practice.
-
- Presidents also have no authority to stifle dissent,
but that hasn't deterred George Bush. Post-9/11, former press secretary
Ari Fleischer laid out the new "war on terrorism" rules of engagement
saying Americans "need to watch what they say, watch what they do."
It includes showing up for anti-war rallies and protesting military recruitment.
They're now considered "political terrorist activit(ies)." We're
being watched if we go and subject to future recrimination at the whim
of a rogue President and criminal administration meting out police state
justice.
-
- Refusing to Execute the Law
-
- Cohn quoted James Madison from the Federalist Papers
writing: "The preservation of liberty requires that the three great
departments of power should be separate and distinct. The accumulation
of all powers, legislative, executive and judiciary, in the same hands...
may justly be pronounced the very definition of tyranny." George Bush
proves the truth of Madison's words. Since taking office, he systematically
sought to usurp all governing powers in his hands under his unconstitutional
notion of a "unitary executive" with the right to claim the law
is what he says it is. It isn't, never was, and never will be under a system
of constitutional law George Bush doesn't recognize in his continued efforts
to flout it recklessly.
-
- Cohn stated: George Bush "has....asserted unparalleled
executive power by putting his stamp of supremacy on more than one thousand
provisions of law (more than all past Presidents combined) enacted by Congress."
He "quietly attached 147 'signing statements' to 1132 (law provisions)
passed by Congress" even though nothing in the Constitution permits
this practice, and the Supreme Court banned line-item vetoes. He abused
his power to rewrite laws to conform to administration policies and wishes,
and Congress and the courts have done nothing to stop him.
-
- Cohn gave some examples of this practice. "He issued
his most notorious one" in December, 2005 after signing the Detainee
Treatment Act that prohibits subjecting prisoners to cruel, inhuman and
degrading treatment and punishment. The statement attached declared the
administration would interpret the law "in a manner consistent with
the constitutional authority of the President (as a "unitary executive")
and as Commander in Chief and consistent with the constitutional limitations
on the judicial power." Cohn's translation: George Bush will do as
he pleases, law or no law. He kept his word in spite of the Supreme Court's
ruling in Hamdan v. Rumsfeld affirming habeas petitions of Guantanamo detainees.
"His gang continues" torturing prisoners in violation of the
Detainee Treatment Act and High Court ruling.
-
- Another egregious example followed Patriot Act II (the
renewal of the Patriot Act in even harsher form in spite of several new
provisions regarding congressional oversight). George Bush's signing statement
reserved for him the right to refuse to give Congress reports it mandated
just as he did regarding previous laws. Contempt for the law, arrogance
and extreme secrecy have been hallmarks of his administration. This is
one of the many ways he shows it.
-
- Another one came after Congress enacted a 2003 law requiring
the Inspector General in Iraq inform Congress whenever officials won't
cooperate with its investigations. Bush's signing statement said the IG
had no obligation to keep Congress informed. Other signing statements flouted
laws that:
-
- -- Ban US combat troops being used against Colombian
rebels,
-
- -- Forbid uses of military intelligence that violate
the Fourth Amendment,
-
- -- Require retraining prison guards under Geneva Convention
standards of humane treatment,
-
- -- Mandate Iraq civil contractors undergo background
checks,
-
- -- Prohibit firing or punishing DOE and NRC whistle-blowers,
-
- -- Require more minorities be recruited for Foreign Service
and Civil Service jobs, and much more.
-
- Cohn noted that the Task Force on Presidential Signing
Statements and the Separation of Powers Doctrine of the American Bar Association
(ABA) condemned the administration's use of signing statements as "contrary
to the rule of law and our constitutional system of separation of powers."
ABA president Michael Greco added: "We will be close to a constitutional
crisis if this issue....is left unchecked." Wharton School of the
University of Pennsylvania professor emeritus Edward Herman warned about
the same thing saying: "The brazeness of Bush's use of (this practice)
is remarkable. But even more remarkable (is that) it fails to elicit sustained
criticism and outrage (anywhere, and as a result) We are in deep trouble
(and getting increasingly deeper)."
-
- The law of the land means nothing to George Bush and
his band of rogues. He keeps finding new ways to subvert it such as unilaterally
abrogating treaties and "courting nuclear disaster." Cohn noted
he "thumbed his nose at our obligations under the 1970 Nuclear Non-Proliferation
Treaty (NPT)" that's the "supreme law of the land under the Supremacy
Clause of the Constitution." His abuses of power also include:
-
- -- claiming the right to develop new type nuclear weapons,
-
- -- refusing to eliminate present ones,
-
- -- reserving the right to test new nuclear weapons that
will release radiation into the atmosphere,
-
- -- abrogating the Anti-Ballistic Missile Treaty,
-
- -- rescinding the subverting the Biological and Toxic
Weapons Convention,
-
- -- refusing to consider a Fissile Material Cutoff Treaty
that would prevent more nuclear bombs being added to present stockpiles,
-
- -- provokingly challenging Russia and China by planning
to situate misnamed missile defense systems (intended for offense, not
defense) near their borders to give the US a nuclear first-strike advantage,
-
- -- spending more on the military than all other nations
combined with more large increases planned,
-
- -- being the only nation opposed to the 2001 UN Agreement
to Curb the International Flow of Small Arms,
-
- -- Refusing to join 155 other countries as of February,
2007 in signing the 1997 Land Mine Treaty,
-
- -- supplying rogue states with sophisticated weapons
likely to be used aggressively (and $63 billion more of them earmarked
for selected Middle East ones), and
-
- -- claiming the unilateral right to wage preventive wars
of aggression under the Orwellian doctrine of "anticipatory self-defense"
using first-strike nuclear weapons.
-
- These are the reckless acts of a rogue President claiming
to be above the law. Cohn has other ideas stating "The Constitution
is unequivocal. It is George W. Bush's job to enforce, not to rewrite,
the laws Congress has passed." Thomas Jefferson was also unequivocal
in what he wrote in the Declaration of Independence: "That to secure
these (unalienable) rights (of Life, Liberty and the Pursuit of Happiness)
Governments are instituted among Men, deriving their powers from the consent
of the governed, - That whenever any Form of Government becomes destructive
of these ends, it is the Right of the People to alter or to abolish it,
and to institute new Government (for) their Safety and Happiness."
-
- Conclusion
-
- In response to growing public opposition to the Iraq
war, George Bush committed 50,000 more troops with no set timetable for
their drawdown or withdrawal. Even worse, he stepped up rhetoric against
Iran, pointing to a possible enlargement of the Middle East conflict that
will be catastrophic for the region and US if it happens.
-
- The Iraq war alone is an illegal act of aggression and
supreme international crime against peace. Along with growing numbers in
the public, those serving in the military have a duty to disobey orders
that violate international and constitutional law. In addition, the Democrat-led
Congress is obligated to "convene a nonpartisan independent inquiry"
to investigate prewar manipulated and distorted intelligence. Cohn believes
high government officials should be held to account up to and especially
George Bush and Dick Cheney.
-
- She noted that DOJ regulations "call for the appointment
of an outside special counsel when (1) a criminal investigation of a person
or matter is warranted, (2) the investigation or prosecution of that person
or matter (within DOJ) would present a conflict of interest for the Department,"
and (3) it's in the public interest to appoint an outside Special Counsel
because a criminal investigation of the administration is essential.
-
- From what's already known, the evidence pointing to criminal
wrongdoing (recounted above) is overwhelming and demands action even though
leading Democrats are conspiratorially involved and should be held to account
as well. Those found guilty (in both parties)should be prosecuted. If US
courts opt out, the International Criminal Court (ICC) in the Hague should
step in and act as it's mandated to do. Although the US is not a signatory,
it should move ahead anyway in the name of humanity and grave threat it
faces if it won't. That's the current condition and danger. The world can't
wait for niceties or hoped for change that won't happen unless forced.
-
- The ICC was established in 2002 (by the 1998 Rome Statute)
as a permanent world tribunal to prosecute individuals for genocide, war
crimes and crimes against humanity. They were defined by the 1945 Nuremberg
Charter drafted by the US and its main WW II victorious allies to try Nazi
war criminals. The court was mandated to step in and adjudicate in the
kinds of high US officials' law violations now in question, demanding redress.
With world approval, it should act in defiance of the American Servicemembers
Protection Act of 2002 - aka the Hague Invasion Act authorizing the President
to send in the Marines to rescue any American the ICC detains. He'll be
hard-pressed to do it if he and Dick Cheney are shackled inside ICC cells
where they belong, and not a moment too soon.
-
- Cohn mentioned other prosecutorial options as well. Under
the principle of "universal jurisdiction," every country has
the authority to charge and prosecute anyone committing grievous crimes
of war or against humanity. None so far have acted, it's unlikely a single
one will be so bold, and that's why the ICC was established to act for
them.
-
- The shameless Democrat-led 110th Congress has defied
the electorate and ignored its call for action as well. The public demands
what it has constitutional authority to do - cut off all funding for two
illegal wars of aggression and end them. In defiance, Congress continues
funding open-ended wars with only disingenuous lip service paid to troop
drawdowns and withdrawals. Further, the Bush administration continues building
a case for war against Iran, with no just cause or legal standing for it,
and Democrats are rolling over in support shamelessly and dangerously.
-
- Cohn ends her important book with an impassioned plea
to "stop the Cowboy Republicans" while there's still time. She
points out what's needed and clear. In the 1970s, Congress only ended
the Vietnam war after "tens of thousands of people marched in the
streets" against it, and a near-insurrection was seen possible inside
the conscript military. The anti-war movement today is large but tepid
by comparison, and the military is all-volunteer making the job harder.
-
- Nonetheless, the need is urgent as the fate of a shaky
republic and all humanity hang in the balance. "Bush's hubris affects
us all," Cohn noted ominously. A way must be found "to demand
truth, justice, and accountability from the Cowboy Republicans....insisting
the Bush gang be held to account for its high crimes and misdemeanors."
People must demand an end to war and occupation and act to prevent another
one. What better reason is there than "Our lives....those of our children
(and all humanity) depend on it."
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