Saturday, February 23, 2008
Olbermann Timeline: How The Bush Administration Exploited Terror Threats For Political Gain, 2002-2008
The clip is 17 minutes long and entirely worth it, and its conclusion — "what we were told about terror, and not told, for security reasons, has overlapped considerably with what we were told about terror, and not told, for political reasons" — is a dutiful summary of the past six years.
Friday, February 22, 2008
Durbin and Whitehouse: Justice Department is Investigating Torture Authorization
Senate Judiciary Democrats Called for Inquiry into DOJ's Role in Overseeing CIA's Use of Waterboarding
Friday, February 22, 2008
[Washington, DC] – In response to a request by U.S. Senators Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.), the Justice Department has announced it has launched an investigation of the role of top DOJ officials and staff attorneys in authorizing and/or overseeing the use of waterboarding by U.S. intelligence agencies. The investigation is being carried out by the Justice Department’s Office of Professional Responsibility (OPR), which is responsible for investigating employees of the DOJ who have been accused of misconduct with respect to their professional functions.
“The United States has always repudiated waterboarding as a form of torture and prosecuted it as a war crime. Justice Department officials who ignored this history -- even those at the highest levels -- must be held accountable for their actions,” said Durbin. “A hard look at DOJ officials who approved waterboarding as a lawful interrogation technique is long overdue and I am pleased that the Office of Professional Responsibility has undertaken this investigation. Congress and the American people deserve to know how these decisions were made and who was involved.”
“Within the question, how America could come to use interrogation techniques of the Inquisition, is the question how the Department of Justice could have overlooked its own precedents to authorize waterboarding,” said Whitehouse, a former U.S. Attorney and Attorney General for Rhode Island. “This abject failure of scholarship suggests that the answer was preordained and the Department was driven by politics and obedience, not law and independence. I welcome OPR’s report in our continuing effort to reclaim DOJ from the ‘loyal Bushies’ who have besmirched a great institution.”
In a hearing before the Senate Intelligence Committee, of which Whitehouse is a member, General Michael Hayden, director of the CIA, publicly acknowledged for the first time that the U.S. government had used waterboarding during interrogations of several detainees, including Khalid Sheik Mohammed. Attorney General Michael Mukasey has stated that the Department of Justice advised the intelligence agency that the use of waterboarding would be lawful.
In the wake of those statements, Senators Durbin and Whitehouse, who both serve on the Senate Judiciary Committee, called on the Office of Professional Responsibility to investigate the conduct of Justice Department officials who provided that advice, seemingly in contravention of a significant body of U.S. legal precedent.
In response, H. Marshall Jarrett, who heads OPR, wrote the senators that this issue is “included in a pending OPR investigation into the circumstances surrounding the drafting” of a 2002 Office of Legal Counsel memo on interrogation standards.
A PDF copy of the letter from OPR is available. Contact the Press Office at 202-228-6293.
Wednesday, February 20, 2008
[posted online on February 20, 2008]
Secret evidence. Denial of habeas corpus. Evidence obtained by waterboarding. Indefinite detention. The litany of complaints about the legal treatment of prisoners at Guantánamo Bay is long, disturbing and by now familiar. Nonetheless, a new wave of shock and criticism greeted the Pentagon's announcement on February 11 that it was charging six Guantánamo detainees, including alleged 9/11 mastermind Khalid Shaikh Mohammed, with war crimes--and seeking the death penalty for all of them.
Now, as the murky, quasi-legal staging of the Bush Administration's military commissions unfolds, a key official has told The Nation that the trials are rigged from the start. According to Col. Morris Davis, former chief prosecutor for Guantánamo's military commissions, the process has been manipulated by Administration appointees in an attempt to foreclose the possibility of acquittal.
Colonel Davis's criticism of the commissions has been escalating since he resigned this past October, telling the Washington Post that he had been pressured by politically appointed senior defense officials to pursue cases deemed "sexy" and of "high-interest" (such as the 9/11 cases now being pursued) in the run-up to the 2008 elections. Davis, once a staunch defender of the commissions process, elaborated on his reasons in a December 10, 2007, Los Angeles Times op-ed. "I concluded that full, fair and open trials were not possible under the current system," he wrote. "I felt that the system had become deeply politicized and that I could no longer do my job effectively."
Then, in an interview with The Nation in February after the six Guantánamo detainees were charged, Davis offered the most damning evidence of the military commissions' bias--a revelation that speaks to fundamental flaws in the Bush Administration's conduct of statecraft: its contempt for the rule of law and its pursuit of political objectives above all else.
When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes--the man who now oversees the tribunal process for the Defense Department. "[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, something that had lent great credibility to the proceedings.
"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals, we've got to have convictions.'"
Davis submitted his resignation on October 4, 2007, just hours after he was informed that Haynes had been put above him in the commissions' chain of command. "Everyone has opinions," Davis says. "But when he was put above me, his opinions became orders."
Reached for comment, Defense Department spokesperson Cynthia Smith said, "The Department of Defense disputes the assertions made by Colonel Davis in this statement regarding acquittals."
"That he [Haynes] said there can be no acquittals will stain the entire [tribunal] process," says Scott Horton, who teaches law at Columbia University Law School and who has written extensively about Haynes's conflicts with the Judge Advocate General's (JAG) corps, the judicial arm of the Armed Forces, which is charged with implementing the military commissions. According to Horton, Haynes tried to cut the JAG corps out of internal debates over the detention and prosecution of detainees, knowing it was critical of the Administration's views. In private memos and in public Senate testimony, high-ranking officers of the corps have repeatedly expressed concerns about the Administration's advocacy of "extreme interrogation techniques."
"The JAG corps consists of a group of rigorous professionals, but Haynes never trusted them to do their job," says Horton. "His clashes have always had the same subtext--they want to be independent, he wants them to do political dirty-work."
Haynes, a political appointee and chief legal adviser to Defense secretaries Donald Rumsfeld and Robert Gates, was nominated in 2006 by the Bush Administration for a lifetime seat as a judge in the Court of Appeals for the Fourth Circuit. But his nomination never got out of committee, primarily because of the opposition of Republican Senator (and former military lawyer) Lindsey Graham and other members alarmed over Haynes's role in writing or supervising the writing of Pentagon memos advocating the use of harsh interrogation techniques the Geneva Conventions classify as torture.
Currently, in his capacity as Pentagon general counsel, Haynes oversees both the prosecution and the defense for the commissions. "You would think a person in that position wouldn't be favoring one side," says Colonel Davis.
Told of Davis's story about Haynes, Clive Stafford Smith, a defense attorney who has represented more than seventy Guantánamo clients, said, "Hearing it makes me think I'm back in Mississippi representing a black man in front of an all-white jury."
He adds, "It confirms what people close to the system have always said," noting that when three prosecutors--Maj. Robert Preston, Capt. John Carr and Capt. Carrie Wolf--requested to be transferred out of the Office of Military Commissions in 2004, they claimed they'd been told the process was rigged. In an e-mail to his supervisors, Preston had said that there was thin evidence against the accused. "But they were told by the chief prosecutor at the time that they didn't need evidence to get convictions," says Stafford Smith.
At the time, the military wrote it off as "miscommunication" and "personality conflicts." And then there were changes in personnel. "They told us that the system had been cleaned up...but I guess the more things change, the more they stay the same," says Stafford Smith.
The terrible irony is that even if acquittals were possible, the government has declared that it can continue to detain anyone deemed an "enemy combatant" for the duration of hostilities--no matter the outcome of a trial. And most of the 275 men held at Guantánamo are classified as "enemy combatants" while the hostilities in the "war on terror" could be never-ending.
Says ACLU staff attorney Ben Wizner, "The trial doesn't make a difference. They can hold you there forever until they decide to let you out." The one person to be released from Guantánamo through the judicial process, Australian David Hicks, pleaded guilty. As Wizner wrote in the Los Angeles Times in April 2007, "In an ordinary justice system, the accused must be acquitted to be released. In Guantánamo, the accused must plead guilty to be released."
Still, the trials serve a purpose for the government, in providing the semblance of a legitimate judicial process. According to defense attorneys involved--and many of the former prosecutors, like Davis--the process is political, not legal.
"If someone was acquitted, then it would suggest we did the wrong thing in the first place. That can't happen," says Horton sardonically. "When the government decides to clear someone, it calls the person 'no-longer an enemy combatant' instead of just saying they made a mistake."
He adds, "For people like Haynes, justice is meant to serve the party."
Tuesday, February 19, 2008
Melissa del Bosque | February 18, 2008 | Web Exclusive
As the U.S. Department of Homeland Security marches down the Texas border serving condemnation lawsuits to frightened landowners, Brownsville resident Eloisa Tamez, 72, has one simple question. She would like to know why her land is being targeted for destruction by a border wall, while a nearby golf course and resort remain untouched.
Tamez, a nursing director at the University of Texas at Brownsville, is one of the last of the Spanish land grant heirs in Cameron County. Her ancestors once owned 12,000 acres. In the 1930s, the federal government took more than half of her inherited land, without paying a cent, to build flood levees.
Now Homeland Security wants to put an 18-foot steel and concrete wall through what remains.
While the border wall will go through her backyard and effectively destroy her home, it will stop at the edge of the River Bend Resort and golf course, a popular Winter Texan retreat two miles down the road. The wall starts up again on the other side of the resort.
“It has a golf course and all of the amenities,” Tamez says. “There are no plans to build a wall there. If the wall is so important for security, then why are we skipping parts?”
Along the border, preliminary plans for fencing seem to target landowners of modest means and cities and public institutions such as the University of Texas at Brownsville, which rely on the federal government to pay their bills.
A visit to the River Bend Resort in late January reveals row after row of RVs and trailers with license plates from chilly northern U.S. states and Canadian provinces. At the edge of a lush, green golf course, a Winter Texan from Canada enjoys the mild, South Texas winter and the landscaped ponds, where white egrets pause to contemplate golf carts whizzing past. The woman, who declines to give her name, recounts that illegal immigrants had crossed the golf course once while she was teeing off. They were promptly detained by Border Patrol agents, she says, adding that agents often park their SUVs at the edge of the golf course.
River Bend Resort is owned by John Allburg, who incorporated the business in 1983 as River Bend Resort, Inc. Allburg refused to comment for this article. A scan of the Federal Election Commission and Texas Ethics Commission databases did not find any political contributions linked to Allburg.
Just 69 miles north, Daniel Garza, 76, faces a similar situation with a neighbor who has political connections that reach the White House. In the small town of Granjeno, population 313, Garza points to a field across the street where a segment of the proposed 18-foot high border wall would abruptly end after passing through his brick home and a small, yellow house he gave his son. “All that land over there is owned by the Hunts,” he says, waving a hand toward the horizon. “The wall doesn’t go there.”
In this area everyone knows the Hunts. Dallas billionaire Ray L. Hunt and his relatives are one of the wealthiest oil and gas dynasties in the world. Hunt, a close friend of President George W. Bush, recently donated $35 million to Southern Methodist University to help build Bush’s presidential library. In 2001, Bush made him a member of the Foreign Intelligence Advisory Board, where Hunt received a security clearance and access to classified intelligence.
Over the years, Hunt has transformed his 6,000-acre property, called the Sharyland Plantation, from acres of onions and vegetables into swathes of exclusive, gated communities where houses sell from $650,000 to $1 million and residents enjoy golf courses, elementary schools, and a sports park. The plantation contains an 1,800-acre business park and Sharyland Utilities, run by Hunt’s son Hunter, which delivers electricity to plantation residents and Mexican factories.
The development’s Web site touts its proximity to the international border and the new Anzalduas International Bridge now under construction, built on land Hunt donated. Hunt has also formed Hunt Mexico with a wealthy Mexican business partner to develop both sides of the border into a lucrative trade corridor the size of Manhattan.
Jeanne Phillips, a spokesperson for Hunt Consolidated Inc., says that since the company is private, it doesn’t have to identify the Mexican partner. Phillips says, however, that no one from the company has been directly involved in siting the fence. “We, like other citizens in the Valley, have waited for the federal government to designate the location of the wall,” she says.
Garza stands in front of his modest brick home, which he built for his retirement after 50 years as a migrant farmworker. For the past five months, he has stayed awake nights trying to find a way to stop the gears of bureaucracy from grinding over his home.
A February 8 announcement by Homeland Security Secretary Michael Chertoff said the agency would settle for building the fence atop the levee behind Garza’s house instead of through it, which has given Garza some hope. Like Tamez, he wonders why his home and small town were targeted by Homeland Security in the first place.
“I don’t see why they have to destroy my home, my land, and let the wall end there.” He points across the street to Hunt’s land. “How will that stop illegal immigration?”
Most border residents couldn’t believe the fence would ever be built through their homes and communities. They expected it to run along the banks of the Rio Grande, not north of the flood levees—in some cases like Tamez’s, as far as a mile north of the river. So it came as a shock last summer when residents were approached by uniformed Border Patrol agents. They asked people to sign waivers allowing Homeland Security to survey their properties for construction of the wall. When they declined, Homeland Security filed condemnation suits.
In time, local landowners realized that the fence’s location had everything to do with politics and private profit, and nothing to do with stopping illegal immigration.
In 2006, Congress passed the Secure Fence Act, authored by Republican Congressman Peter King from New York. The legislation mandated that 700 miles of double-fencing be built along the southern border from California to Texas. The bill detailed where the fencing, or, as many people along the border call it, “the wall,” would be built. After a year of inflamed rhetoric about the plague of illegal immigration and Congress’s failure to pass comprehensive immigration reform, the bill passed with overwhelming support from Republicans and a few Democrats. All the Texas border members of the U.S. House of Representatives, except San Antonio Republican Henry Bonilla, voted against it. Texas Sens. Kay Bailey Hutchison and John Cornyn voted for the bill.
On August 10, 2007, Chertoff announced his agency would scale back the initial 700 miles of fencing to 370 miles, to be built in segments across the southern border. Chertoff cited budget shortages and technological difficulties as justifications for not complying with the bill.
How did his agency decide where to build the segments? Chad Foster, the mayor of Eagle Pass, says he thought it was a simple enough question and that the answer would be based on data and facts. Foster chairs the Texas Border Coalition. TBC, as Foster calls it, is a group of border mayors and business leaders who have repeatedly traveled to Washington for the past 18 months to try to get federal officials to listen to them.
Foster says he has never received any logical answers from Homeland Security as to why certain areas in his city had been targeted for fencing over other areas. “I puzzled a while over why the fence would bypass the industrial park and go through the city park,” he says.
Despite terse meetings with Chertoff, Foster and other coalition members say the conversation has been one-sided.
“I think we have a government within a government,” Foster says. “[This is] a tremendous bureaucracy—DHS is just a monster.”
The Observer called Homeland Security in Washington to find out how it had decided where to build the fence. The voice mail system sputtered through a dizzying array of acronyms: DOJ, USACE, CBP, and USCIS. On the second call a media spokesperson with a weary voice directed queries to Michael Friel, the fence spokesman for Customs and Border Protection. Six calls and two e-mails later, Friel responded with a curt e-mail: “Got your message. Working on answers…” it said. Days passed, and Friel’s answers never came.
Since Homeland Security wasn’t providing answers, perhaps Congress would. Phone conversations with congressional offices ranged from “but they aren’t even building a wall” to “I don’t know. That’s a good question.” At the sixth congressional office contacted, a GOP staffer who asked not to be identified, but who is familiar with the fence, says the fencing locations stemmed from statistics showing high apprehension and narcotic seizure rates. This seems questionable, since maps released by the U.S. Army Corps of Engineers showed the wall going through such properties as the University of Texas at Brownsville—hardly a hotbed for drug smugglers and immigrant trafficking.
Questioned more about where the data came from, the staffer said she would enquire further. The next day she called back. “The border fence is being handled by Greg Giddens at the Secure Border Initiative Office within the U.S. Customs and Border Protection office,” she said.
Giddens is executive director of the SBI, as it is called, which is in charge of SBInet, a consortium of private contractors led by Boeing Co. The group received a multibillion dollar contract in 2006 to secure the northern and southern borders with a network of vehicle barriers, fencing, and surveillance systems. Companies Boeing chose to secure the southern border from terrorists include DRS Technologies Inc., Kollsman Inc., L-3 Communications Inc., Perot Systems Corp., and a unit of Unisys Corp.
A February 2007 audit by the U.S. Government Accountability Office cited Homeland Security and the SBInet project for poor fiscal oversight and a lack of demonstrable objectives. The GAO audit team recommended that Homeland Security place a spending limit on the Boeing contract for SBInet since the company had been awarded an “indefinite delivery/indefinite quantity contract for 3 years with three 1-year options.”
The agency rejected the auditors’ recommendation, saying 6,000 miles of border is limitation enough.
In a February 2007 hearing, Congressman Henry Waxman, a California Democrat and the chairman of the Oversight and Government Reform Committee, had more scathing remarks for Giddens and the SBInet project. “As of December, the Department of Homeland Security had hired a staff of 98 to oversee the new SBInet contract. This may seem like progress until you ask who these overseers are. More than half are private contractors. Some of these private contractors even work for companies that are business partners of Boeing, the company they are supposed to be overseeing. And from what we are now learning from the department, this may be just the tip of the iceberg.”
Waxman said of SBInet that “virtually every detail is being outsourced from the government to private contractors. The government is relying on private contractors to design the programs, build them, and even conduct oversight over them.”
A phone call to Giddens at SBI is referred to Loren Flossman, who’s in charge of tactical infrastructure for the office. Flossman says all data regarding the placement of the fence is classified because “you don’t want to tell the very people you’re trying to keep from coming across the methodology used to deter them.”
Flossman also calls the University of Texas at Brownsville campus a problem area for illegal immigration. “I wouldn’t assume that these are folks that aren’t intelligent enough that if they dress a certain way, they’re gonna fit in,” he says.
Chief John Cardoza, head of the UT-Brownsville police, says the Border Patrol would have to advise his police force of any immigrant smuggling or narcotic seizures that happen on campus. “If it’s happening on my campus, I’m not being told about it,” he says. Cardoza says he has never come across illegal immigrants dressed as students.
Flossman goes on to say that Boeing isn’t building the fence, but is providing steel for it. Eric Mazzacone, a spokesman for Boeing, refers the Observer to Michael Friel at Customs and Border Protection, and intercedes to get him on the phone. Friel confirms that Boeing has just finished building a 30-mile stretch of fence in Arizona, but insists other questions be submitted in writing.
Boeing, a multibillion dollar aero-defense company, is the second-largest defense contractor in the nation. The company has powerful board members, such as William M. Daley, former U.S. secretary of commerce; retired Gen. James L. Jones, former supreme allied commander in Europe; and Kenneth M. Duberstein, a former White House chief of staff. The corporation is also one of the biggest political contributors in Washington, giving more than $9 million to Democratic and Republican members of Congress in the last decade. In 2006, the year the Secure Fence Act was passed, Boeing gave more than $1.4 million to Democrats and Republicans, according to the Center for Responsive Politics.
A majority of this money has gone to legislators such as Congressman Duncan Hunter, the California Republican who championed the Secure Fence Act. In 2006, Hunter received at least $10,000 from Boeing and more than $93,000 from defense companies bidding for the SBInet contract, according to the center. During his failed bid this year for the White House, Hunter made illegal immigration and building a border fence the major themes of his campaign.
In early February 2008, Chertoff asked Congress for $12 billion for border security. He included $775 million for the SBInet program, despite the fact that congressional leaders still can’t get straight answers from Homeland Security about the program. As recently as January 31, Senate Homeland Security and Governmental Affairs Committee members sent a letter to Chertoff asking for “greater clarity on [the Customs and Border Protection office’s] operational objectives for SBInet and the projected milestones and anticipated costs for the project.” They have yet to receive a response.
Boeing continues to hire companies for the SBInet project. And the congressional districts of backers of the border fence continue to benefit. A recent Long Island Business News article trumpeted the success of Telephonics Corp., a local business, in Congressman King’s congressional district that won a $14.5 million bid to provide a mobile surveillance system under SBInet to protect the southern border.
While Garza and Tamez wait for answers, they say they are being asked to sacrifice something that can’t be replaced by money. They are giving up their land, their homes, their heritage, and the few remaining acres left to them that they hoped to pass on to their children and grandchildren.
“I am an old man. I have colon cancer, and I am 76 years old,” Garza says, resting against a tree in front of his home. “All I do is worry about whether they will take my home. My wife keeps asking me, ‘What are we going to do?’”
Besides these personal tragedies, Eagle Pass Mayor Foster says there is another tragedy in store for the American taxpayer. A 2007 congressional report estimates the cost of maintaining and building the fence could be as much as $49 billion over its expected 25-year life span.
“They are just going to push this problem on the next administration, and nobody is going to talk about immigration reform, and that’s the illness,” Foster says. “The wall is a Band-Aid on the problem. And to blow $49 billion and not walk away with a secure border—that’s a travesty.”
In August, 2006, Judge Anna Diggs Taylor became the first federal judge ever to rule on the legality of the Bush administration's NSA warrantless spying program, and she ruled that the NSA program violated both statutory law as well as multiple rights guaranteed by the U.S. Constitution. The case was brought by the ACLU on behalf of numerous Muslim lawyers, journalists and others, who argued that the existence of the warrantless eavesdropping program rendered them unable to perform their jobs.
The Bush administration appealed that decision to a three-judge panel of the Sixth Circuit. In July of last year, two of the three appellate judges voted to reverse Judge Diggs Taylor's ruling, not because they disagreed with her conclusions about the program's legality. Instead, they found that the plaintiffs lacked "standing" to challenge the legality of the program -- and courts were therefore barred from ruling on their claims -- because the plaintiffs were unable to prove that they were actually subjected to the warrantless eavesdropping (due to the absolute secrecy under which the program operates).
The third member of the appellate panel, Judge Gilman, dissented from that finding, holding that plaintiffs were permitted to proceed with the lawsuit, and then proceeded to find that the NSA program was illegal. Thus, even to date, the only two judges ever to rule on the legality of Bush's NSA program -- District Judge Diggs Taylor and the Sixth Circuit's Judge Gilman -- have both ruled that it was illegal.
The ACLU appealed the Sixth Circuit's procedural ruling to the U.S. Supreme Court, asking the Court to hear the appeal. Today, the Court announced that it would not hear the appeal, thus bringing an end to the ACLU's legal challenge to the NSA program (even though no judge has ever ruled the program legal):
The justices' decision, issued without comment, is the latest setback to legal efforts to force disclosure of details of the warrantless wiretapping that began after the Sept. 11 attacks.
The Supreme Court accepts only a tiny percentage of cases for appeal, and under its long-standing rules, a refusal to hear a case does not constitute agreement with the lower court's decision. It simply means that the Court, for whatever reasons, will not decide the appeal.
This decision does mean, however, that EFF's pending lawsuits in San Francisco against AT&T, Verizon and the other telecoms are now the sole remaining vehicle for finding out what the Bush administration actually did when spying on Americans for years without warrants, and as importantly, is the last hope for obtaining a judicial ruling as to whether the President broke the law and violated the Constitution when doing so. If Jay Rockefeller and Dick Cheney have their way and retroactive amnesty is granted to these telecoms, those lawsuits will be forever dismissed and Americans will remain indefinitely in the dark about how our own Government spied on us, and will forever lose the opportunity to have a court rule whether the Government broke the law and violated our Constitutional rights.
read the rest here: