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The Vindication of Edward Snowden May 12, 2015

Posted by rogerhollander in Constitution, Criminal Justice, Democracy, Surveillance, Surveillance State, Whistle-blowing.
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Roger’s note: I suppose, at least in theory, there may be a justification for a “state secrets” doctrine.  I could picture an extreme circumstance where the democratic right of the people and their representatives to know could be trumped because making information public could aid and abet an enemy in an imminently dangerous way.  Nevertheless, that doctrine has been used and abused over and over again to evade accountability; and I am not aware of a single case where it was used to avoid an actual danger.

But with respect to “legality,” I have often referred to a speech given many years ago by the notable civil liberties lawyer William Kunstler, which showed how some of the most noteworthy crimes in history — from the executions of Socrates and Jesus to the Nazi Holocaust — have been perpetrated under the color of “the Law.”  My point is that men (sic) make the laws and the victors write the history.  Take the issue under consideration in the following article, Snowden’s uncovering of NSA bulk surveillance.  A federal appeals court says it is illegal.  This will be appealed to the Supreme Court, which could well reverse with the result that was illegal one day becomes legal the next.

The Law and the judicial system are sacred and not to be taken lightly.  But in the final analysis, it comes down who holds political and economic and military power.  And in our world today those who own and operate monopoly capitalism are in the driver’s seat.  Justice will not come about until they are dislodged.

 

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A federal appeals court has ruled that one of the NSA programs he exposed was illegal.
Mark Blinch / Reuters

 

Conor Friedersdorf  May 11, 2015  http://www.theatlantic.com

Edward Snowden’s most famous leak has just been vindicated. Since June 2013, when he revealed that the telephone calls of Americans are being logged en masse, his critics have charged that he took it upon himself to expose a lawful secret. They insisted that Congress authorized the phone dragnet when it passed the U.S.A. Patriot Act, citing Section 215, a part of the law that pertains to business records.

That claim was always suspect. The text of the law does not seem to authorize mass surveillance. A primary author and longtime champion of the law avows that Congress never intended to authorize the phone dragnet. And nothing like it was ever discussed during an extensive, controversy-filled debate about its provisions.

Now the wrongheadedness of the national-security state’s position has been confirmed.

A panel of judges on the Second Circuit Court of Appeals ruled last week that the program Snowden exposed was never legal. The Patriot Act does not authorize it, contrary to the claims of George W. Bush, Barack Obama, Michael Hayden, Keith Alexander, and James Clapper. “Statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here,” Judge Gerard E. Lynch declared. “The sheer volume of information sought is staggering.”

Other conclusions reached by the three-judge panel include the following:

“The interpretation that the government asks us to adopt defies any limiting principle.”
“We would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language.There is no evidence of such a debate …”
“Congress cannot reasonably be said to have ratified a program of which many members of Congress—and all members of the public—were not aware … only a limited subset of members of Congress had a comprehensive understanding of the program…”
“Finding the government’s interpretation of the statute to have been ‘legislatively ratified’ under these circumstances would ignore reality.”

Consider what this means.

Telling the public about the phone dragnet didn’t expose a legitimate state secret. It exposed a violation of the constitutional order. For many years, the executive branch carried out a hugely consequential policy change that the legislature never approved. Tens of millions of innocent U.S. citizens were thus subject to invasions of privacy that no law authorized. And the NSA’s unlawful behavior would’ve continued, unknown to the public and unreviewed by Article III courts, but for Snowden’s leak, which caused the ACLU to challenge the illegal NSA program.

Snowden undeniably violated his promise to keep the NSA’s secrets.

But doing so was the only way to fulfill his higher obligation to protect and defend the Constitution, which was being violated by an executive branch exceeding its rightful authority and usurping the lawmaking function that belongs to the legislature. This analysis pertains only to the leaked documents that exposed the phone dragnet, not the whole trove of Snowden leaks, but with respect to that one set of documents there ought to be unanimous support for pardoning his disclosure.

Any punishment for revealing the phone dragnet would be unjust.

Now that a federal appeals court has found that Section 215 of the Patriot Act did not in fact authorize the policy, punishing a man for exposing the program would set this precedent: Whistleblowers will be punished for revealing illegal surveillance. That’s the position anyone who still wants Snowden prosecuted for that leak must take, if the ruling stands. (Other federal courts have issued rulings pointing in contrary directions, and this latest ruling will likely be appealed.)
Related Story

Does the PATRIOT Act Allow Bulk Surveillance?

Consider how this federal court ruling informs the debate over state secrets generally. Civil libertarians have long warned that secret national-security policies undermine both representative democracy and our system of checks and balances.

And that is exactly what happened with respect to the phone dragnet!

Jeb ‘Put Me Through Hell’ February 27, 2015

Posted by rogerhollander in Constitution, Criminal Justice, Jeb Bush, Right Wing.
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Roger’s note: I post this article so that you can get an idea of what kind of man is the very possible next US president.  This is a well researched piece of investigative journalism, and the apparent reason for this labor is to warn of us of a possible future president who is an uncompromising ideologue who puts himself above the law.  Now, I have no love for Jeb Bush, but I find something ironic in this.

Most presidents do in fact put themselves above the law and usually get away with it.  Poor Dick Nixon put himself so far above the law that he ended up hoisted on his own petard.  He is the exception.  The current and penultimate president have taken this putting themselves above the law to new heights (including but not limited to brutal torture, drone missile mass murder and presidential kill lists).  Tricky Dick would be envious.  Irony number one, you can warn us all you want about Jeb Bush, but you can bet on the fact that whomever becomes the next president — from super-hawk Democrat Hillary Clinton to the wackiest of the Republican menagerie — will continue in this honored tradition.

Irony number two: as you will see, in the end Bush did in fact respect the law when all political channels had been exhausted, and, as you will also see, the nut case murderous pro-lifers (sic) saw him thus as a traitor to the cause. 

Finally, thanks to Jeff Nguyen for posting this on his excellent Blog (www.deconstructingmyths.com).

 

Posted on January 19, 2015by Jeff Nguyen
Once in a while I come across an article that, in my not-so-humble opinion, is so outstanding, I want to share it with anyone who will listen. I especially enjoy long-form articles which can provide a venue for deep dives into genres such as creative nonfiction or narrative journalism. I would now like to present the Longform series…

Jeb ‘Put Me Through Hell’

By Michael Kruse

CLEARWATER, Fla.—Sitting recently on his brick back patio here, Michael Schiavo called Jeb Bush a vindictive, untrustworthy coward.

For years, the self-described “average Joe” felt harassed, targeted and tormented by the most important person in the state.

“It was a living hell,” he said, “and I blame him.”

Michael Schiavo was the husband of Terri Schiavo, the brain-dead woman from the Tampa Bay area who ended up at the center of one of the most contentious, drawn-out conflicts in the history of America’s culture wars. The fight over her death lasted almost a decade. It started as a private legal back-and-forth between her husband and her parents. Before it ended, it moved from circuit courts to district courts to state courts to federal courts, to the U.S. Supreme Court, from the state legislature in Tallahassee to Congress in Washington. The president got involved. So did the pope.

But it never would have become what it became if not for the dogged intervention of the governor of Florida at the time, the second son of the 41st president, the younger brother of the 43rd, the man who sits near the top of the extended early list of likely 2016 Republican presidential candidates. On sustained, concentrated display, seen in thousands of pages of court records and hundreds of emails he sent, was Jeb the converted Catholic, Jeb the pro-life conservative, Jeb the hands-on workaholic, Jeb the all-hours emailer—confident, competitive, powerful, obstinate Jeb. Longtime watchers of John Ellis Bush say what he did throughout the Terri Schiavo case demonstrates how he would operate in the Oval Office. They say it’s the Jebbest thing Jeb’s ever done.
The case showed he “will pursue whatever he thinks is right, virtually forever,” said Aubrey Jewett, a political science professor at the University of Central Florida. “It’s a theme of Jeb’s governorship: He really pushed executive power to the limits.”

“If you want to understand Jeb Bush, he’s guided by principle over convenience,” said Dennis Baxley, a Republican member of the Florida House of Representatives during Bush’s governorship and still. “He may be wrong about something, but he knows what he believes.”

And what he believed in this case, and what he did, said Miami’s Dan Gelber, a Democratic member of the state House during Bush’s governorship, “probably was more defining than I suspect Jeb would like.”

For Michael Schiavo, though, the importance of the episode—Bush’s involvement from 2003 to 2005, and what it might mean now for his almost certain candidacy—is even more viscerally obvious.

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Jeb Bush speaks to reporters during a news conference about Terri Schiavo on March 18, 2005. | AP Photo

“He should be ashamed,” he said. “And I think people really need to know what type of person he is. To bring as much pain as he did, to me and my family, that should be an issue.”

***

November 10, 1984, is when they got married; February 25, 1990, is when she collapsed, early in the morning, in their apartment in St. Petersburg, for reasons that never were determined with specificity but had something to do with a potassium imbalance probably caused by aggressive dieting. Michael Schiavo woke up when he heard her fall. She was facedown, feet in the bathroom, head in the hall. He called 911. Police noted in their report “no signs of trauma to her head or face.” The ambulance raced to the closest hospital, but her heart had stopped, robbing her brain of oxygen, and the damage was catastrophic. A court named her husband her guardian that June. Her parents didn’t object. All of this was before Bush was elected. And after years of rehabilitation, of waiting for any sign of improvement and seeing none, Michael Schiavo decided to remove the feeding tube that kept his wife alive, saying she had told him and others she never would’ve wanted to be this way.

To this, Terri Schiavo’s parents objected. Bob and Mary Schindler, Catholics, argued that their daughter, also Catholic, would want to live, even so debilitated.

She had left no will. No written instructions. She was 26. To try to determine what she would have wanted, there was a trial, in the Pinellas County courtroom of circuit judge George Greer, in which Michael Schiavo relayed what she had told him in passing about what her wishes would be in this sort of scenario. Others did, too. She also had next to no chance of recovery, according to doctors’ testimony. Greer cited “overwhelming credible evidence” that Terri Schiavo was “totally unresponsive” with “severe structural brain damage” and that “to a large extent her brain has been replaced by spinal fluid.” His judgment was that she would not have wanted to live in her “persistent vegetative state” and that Michael Schiavo, her husband and her legal guardian, was allowed to remove her feeding tube.

“DONE AND ORDERED,” he wrote on February 11, 2000.

The St. Petersburg Times had covered the trial. Bush, a year and a month into his first term, started hearing about it almost immediately. Staffers replied at first with a variety of form responses.

“The Florida Constitution prohibits the Governor’s intervention in matters that should be resolved through the court system,” read one. But here’s what else it said: “As a concerned citizen, you have the opportunity to influence legislation pertaining to guardianship matters in cases similar to Terri’s. By contacting your local legislative delegation, such as your senator or representative, new legislation can be introduced. If such a bill ever comes before the Governor for signature, he will certainly remember your views.”

Bush couldn’t do anything. Laws didn’t let him. But that didn’t mean he didn’t want to. He did.

He heard from Terri Schiavo’s father in April 2001. “Allow me to introduce myself,” Bob Schindler wrote in an email. He told the governor his daughter had been “falsely depicted” as a “hopeless vegetable.” He told the governor she was indeed “responsive to family and friends.” “I desperately need your help,” he said, adding that “Terri’s case may be beyond your realm of authority”—Schindler knew it, too—“but I sincerely believe you could be helpful.”

Staffers didn’t respond to Bob Schindler’s email. The governor did.

Mr. Schindler, thank you for writing. I am asking that Charles Canady look into your daughter’s case.

Jeb Bush

Canady had been a Republican member of the United States House of Representatives. He later would be an appellate judge in Florida. He is now a state Supreme Court judge. At the time, though, he was Bush’s top staff attorney.

Meanwhile, the Schindlers appealed, asking for new trials, asking for delays, asking for Greer to recuse himself, asking to remove Michael Schiavo as her guardian based on unproven allegations of abuse and neglect and because he now was living with another woman with whom he had children, asking for new doctors who might make new diagnoses—and they were sufficiently successful to stretch the case into the summer of 2003. Media coverage had intensified, especially on conservative talk radio and websites, and activists convinced the Schindlers to violate a court order and post on the Internet snippets of videos of their daughter appearing to respond to what was going on around her. They also continued their zealous email campaign to attempt to prevent what they saw as imminent court-dictated murder. The top target of their efforts? Bush.

“I’m really limited on what I can do,” the governor reiterated to the conservative online publication World Net Daily in August. A judge had made a decision. Other judges had upheld the decision.

The emails flooded the governor’s inbox.

Bush responded by sending a letter to Greer. He acknowledged it was out of the ordinary. “I normally would not address a letter to the judge in a pending legal proceeding,” Bush wrote. “However, my office has received over 27,000 emails reflecting understandable concern for the well-being of Terri Schiavo.”

Greer said he respected the governor’s position. Then he put the letter with everything else in the already massive file.

“This isn’t his concern,” Michael Schiavo told reporters, “and he should stay out of it.”

He didn’t. Bush filed a federal court brief on October 7 supporting the Schindlers’ efforts. A judge said his court lacked the jurisdiction to do anything.

The feeding tube was to come out on October 15.

Bush met with the Schindlers. He told them his staff attorneys were conferring with experts on the Florida Constitution to see if he could intervene. “He does not have the authority to overrule a court order,” his spokesman told reporters.

The emails didn’t stop.

They came from all over the country. They begged him. They used capital letters. They used exclamation points. They told him to talk to God. They told him there were laws higher than man’s laws and that he, as a Catholic like Terri Schiavo, like her parents, should know that and should act on it and that he had to. “DO NOT LET HER DIE!!!” said a man from Michigan. “Let’s see what kind of compassionate conservative you really are,” said a man from Jacksonville. “If you have any aspirations for a higher office,” said a man from California, “don’t let this be the rallying cry for those who would oppose you.”

To most of them, he didn’t respond—to many, though, he did.

“It is very sad,” he wrote.

“I cannot issue an executive order when there is a court order upheld at every level in the judiciary. … I wish I could but I have no legal authority to do so,” he wrote.

“I am sickened by this situation and pray for her family. We have looked at every angle, every legal possibility, and will continue to do so,” he wrote.

The emails kept coming.

***

“I hope George W. Bush is president some day,” former Republican Party chairman Rich Bond told the late Marjorie Williams, writing for Talk magazine in September 2000. “I know Jeb will be.”

“I want to be able to look my father in the eye and say, ‘I continued the legacy,’” he told the Miami Herald in 1994.

That year, he ran for governor of Florida—as an ultra-conservative, a “head-banging conservative,” as he put it—and lost. In 1998, he ran again, sanding those hard-right edges—and won.

But one constant from the first campaign to the next and beyond: what Bush said he believed was the right role of government. “Government needs to be constrained,” he said in speeches in 1994. “We should be finding practical solutions where we provide incentives for people to take care of themselves.” “Our lack of self-governance is the single biggest reason we’ve seen the growth of government,” he said in 1995. “Good government,” he wrote that year in his book Profiles in Character, “is grounded in its limitations.”

In 1999, in his first inaugural address, he said, “let state government give families and individuals greater freedom”—also, though, “let state government touch the spiritual face of Florida.” In the speech, he mentioned “our Creator” and “the Divine Giver” and said “state government can draw much from these reservoirs of faith.” He was raised as an Episcopalian but became a Catholic because that’s how his Mexican wife grew up. It also suited his disposition. He wrote in Profiles in Character that he believed in the need for a “renewal of virtue” and “passing moral judgments.” He once said “the conservative side” of an issue is “the correct one” because “it just is.”

Bush, 6-foot-4 and stout, quickly established himself as the most powerful governor in Florida history, according to University of North Florida political science professor Matthew Corrigan and others. His ascension coincided with both houses of the state legislature being Republican majorities for the first time since Reconstruction. Voters also opted to alter the state constitution to shrink the size of the cabinet, leaving the governor, the position itself, with more executive power. Bush did a lot with it. He was reelected in 2002, easily, winning 61 of the state’s 67 counties. By this time, of course, his brother was the president.

“He didn’t get told no very often,” Corrigan said.

“My gift, perhaps,” Bush would say toward the end of his two-term tenure, in an interview with the Tampa Tribune, “is that with this office now, we’ve shown that governors can be activist …”

So on October 15, 2003, Terri Schiavo’s feeding tube came out. Judge’s orders. She would die within two weeks. This stage of the case looks in retrospect like the start of a test. Just how much power did Jeb Bush have?

HB 35E was filed after 8 at night on October 20. Many lawmakers already were gone for the day. Gelber, the state representative from Miami, put his suit back on at his apartment in Tallahassee and hustled back to the Capitol. Fellow Democrats gathered around as the attorney and former prosecutor began to read the bill one of Bush’s staff attorneys had helped to write.

“Authority for the Governor to Issue a One-time Stay …”

Gelber looked up.

“I don’t have to read anymore,” he said. “It’s clearly unconstitutional.”

“The governor can’t just change an order of the court,” Gelber explained this month. “It’s one of the most elemental concepts of democracy: The governor is not a king.”

The rest of the language described a situation involving a patient with no written will, in a persistent vegetative state, with a family conflict, whose feeding tube had been removed. Terri Schiavo. It gave the governor a 15-day window to step in.

“The courts have listened to sworn testimony and they have determined, court after court, one way,” said state Senator Alex Villalobos, a Republican from Miami.

But it passed in the House, and it passed in the Senate.

Bush signed it, and Chapter No. 2003-418, “Terri’s Law,” as it came to be known, was official less than 22 hours after it had been introduced. He then issued Executive Order 03-201. “The Florida Department of Law Enforcement shall serve a copy of this Executive Order upon the medical facility currently providing care for Theresa Schiavo,” it stated. A police-escorted ambulance whisked her from her hospice in Pinellas Park to a nearby hospital to have her feeding tube put back in.

“The citizens of Florida should be alarmed by what is happening,” George Felos, one of Michael Schiavo’s attorneys, told reporters. “This is not the former Soviet Bloc, where you don’t have the liberty to control your own body.”

Even one of the law’s architects up in Tallahassee expressed unease.

“I hope, I really do hope, we’ve done the right thing,” Republican state Senate president Jim King said. “I keep thinking, ‘What if Terri Schiavo really didn’t want this at all?’ May God have mercy on us all.”

Bush had no such qualms.

“I honestly believe we did the right thing,” the governor wrote to one emailer.

The emails poured in. Some chided him. More praised him.

One arrived with the subject line “Oh Great One!!” Another woman wondered: “How does it feel to be not only a child of God’s, but to actually feel His Hand guiding you and using you as an instrument to do His work on earth?” A husband and wife wrote to him from near Philadelphia: “I wish we lived in Florida and could support you directly—maybe you’ll run for President one day??”

***

“Yes,” said President George W. Bush, in late October, at a news conference in the Rose Garden, “I believe my brother made the right decision.”

“Terri’s Law” had mandated the appointment of a guardian ad litem, and Jay Wolfson, a respected lawyer and professor of public health at the Stetson University College of Law and the University of South Florida, issued his report in December. Wolfson had spent a month reading the court records, observing Terri Schiavo, meeting with Michael Schiavo and the Schindlers and their attorneys, and also the governor, who struck him as “a very intense, highly committed, very informed, faith-driven person who believed in doing the right thing, and doing so through the governor’s office.”

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Left: A supporter of Terri Schiavo keeps vigil outside the hospice where she was being held in Pinellas Park, Florida. Right: Mary Porta prays for Terri Schiavo in Pinellas Park, Florida. | Getty Images

None of this was “easy stuff,” Wolfson noted in his report, “and should not be.” Nonetheless, he wrote, Terri Schiavo was in “a persistent vegetative state with no likelihood of improvement” and “cannot take oral nutrition or hydration and cannot consciously interact with her environment.” He wrote that the practically unprecedented amount of litigation consisted of “competent, well-documented information” and was “firmly grounded within Florida statutory and case law.”

In parts, too, Wolfson was prescient: “The Governor’s involvement has added a new and unexpected dimension to the litigation. It is reasonable to expect that the exquisite lawyering will continue, and the greatly enhanced public visibility of the case may increase the probability of more litigation, more parties entering as interveners, and efforts to expand the case into federal jurisdiction.”

Soon after that, the pope weighed in.

Without using the name Terri Schiavo, but clearly referring to her, John Paul II said “the administration of water and food, even when provided by artificial means, always represents a natural means of preserving life, not a medical act. Its use, furthermore, should be considered in principle, ordinary and proportionate, and as such morally obligatory …”

Back in Florida, though, the courts were focused not so much on what was “morally obligatory” but more on what was legally mandatory.

A circuit judge ruled Bush’s “Terri’s Law” unconstitutional.

“The court must assume that this extraordinary legislation was enacted with the best intentions and prompted by sincere motives,” W. Douglas Baird wrote in his ruling. He then quoted Daniel Webster, a lawyer and senator, who died in 1852: “It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.”

The Schindlers’ attorneys appealed. The Florida Supreme Court was up next.

Bob Destro, an attorney and professor at the law school at the Catholic University of America in Washington, joined Bush’s legal team and emerged from meetings with the governor thinking “this was something he felt very deeply about … that this was a decision that he made, personally, and that he saw this as a question of an injustice being done.”

The state supreme court judges listened to arguments the last day of August.

After the hearing was over, outside the courthouse in Tallahassee, Michael Schiavo angrily asked reporters about the whereabouts of Bush.

“If this was so important to the governor, where is he?” he said. He then got personal, referring to Bush’s daughter, Noelle, who had been arrested in 2002 after trying to buy Xanax with a forged prescription and then relapsed in rehab. “I can remember you sitting here in front of every one of these reporters with tears in your eyes when your daughter had problems,” he raged, “and you asked for privacy and you got it. Why aren’t you giving me my privacy and Terri her privacy?”

The seven state supreme court judges took less than a month to dismiss unanimously “Terri’s Law.”

“If the Legislature with the assent of the Governor can do what was attempted here,” chief justice Barbara Pariente wrote in her ruling, “the judicial branch would be subordinated to the final directive of the other branches. Also subordinated would be the rights of individuals, including the well-established privacy right to self-determination. No court judgment could ever be considered truly final and no constitutional right truly secure, because the precedent of this case would hold to the contrary. Vested rights could be stripped away based on popular clamor. The essential core of what the Founding Fathers sought to change from their experience with English rule would be lost …”

Bush told reporters he was “disappointed, not for any political reasons, but for the moral reasons.” He said he didn’t think it had been “a full hearing.” Legal analysts disagreed. They called the ruling a categorical rebuke of what Bush had done.

The governor responded by petitioning the U.S. Supreme Court to review the decision.

The words at the top of the docket of the country’s highest court were black-and-white blunt about what this had become: JEB BUSH, Governor of the State of Florida, v. MICHAEL SCHIAVO, Guardian: Theresa Schiavo.

The U.S. Supreme Court refused to review it.

“It means that the governor’s interference in this case has ended,” said Felos, Michael Schiavo’s attorney.

“This matter is now at an end for the governor,” said Ken Connor, another one of Bush’s attorneys.

It did not. It was not.

That week, Connor, the Bush attorney, sent an email to two of Bush’s staff attorneys. “Here is an op-ed I drafted for Dan Webster,” Connor wrote. Connor was active in social conservative causes and organizations. Webster was a Florida state senator, and this Dan Webster, not the lawyer and senator from the 1800s, had beliefs that couldn’t have been more different than those of his namesake.

The op-ed Connor had written ran under Webster’s name on Page 10A of USA Today on January 27, 2005. “By any definition, Terri Schiavo is alive,” the op-ed said. “She has now been issued a death sentence by the courts.” Serial killers, like Ted Bundy, it said, had more rights on death row than Terri Schiavo did at her hospice.

Connor talked on the phone with Dave Weldon, a Republican Congressman from Florida who also was a doctor. Weldon says Connor called him; Connor says it was the other way around—either way, it led to Weldon meeting with the Schindlers in Washington.

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At left, Bobby Schindler attends a special session in Congress to express his sentiments before a right-to-die debate among senators and representatives. At right, activists pray in front of the U.S. Supreme Court for Terri Schiavo on March 24, 2005. | Getty Images

“They showed me some videos of them walking into her room and calling her name and her face lit up and she smiled,” Weldon, no longer in Congress, said this month. “They said, ‘She does that all the time, she’s not a vegetable,’ and they said a bunch of stuff about the husband and were very critical of him, that he had a new girlfriend or something like that. And I felt very compelled.” That, he said, is when he “got Mel Martinez involved.”

Martinez, then a Republican from Florida in the U.S. Senate, talked with Bush. “He’s been saying, ‘I’m not sure we can get it done here in Florida,’” Martinez told the Palm Beach Post. Martinez told Bush he and Bill Frist, at the time the Senate majority leader, were ready to do what they could in Washington but that it wouldn’t be easy.

On March 14, a woman from Clearwater named Pamela Hennessy, who had helped stoke the email onslaught that spurred “Terri’s Law,” emailed Bush, too. She attached a letter she had addressed to the hospice saying she intended to “file formal complaints” to the state Department of Children and Families. The hope was that the agency charged with protecting mainly kids and the elderly might intervene in this case.

Bush wrote back: “thank you Pamela.”

On March 18, in Pinellas Park, Terri Schiavo’s feeding tube was removed again.

***

“If she dies, I will kill Michael Schiavo and the judge,” a woman in California wrote on an AOL message board. “This is real!” She was arrested.

On a different message board, at blogsforterri.com, an anonymous poster called The Coming Conflict declared, “FL gun owners, it’s in your hands.”

Michael Schiavo and the mother of his two kids got letters addressed to their “Illegitimate Bastard Children” talking about how sometimes kids disappear.

Up in Washington, Congress debated the case of Terri Schiavo, searching for possible methods of federal intervention—with Frist and Speaker of the House Dennis Hastert, both of whom now say they don’t want to talk about it, vowing to work together through the weekend of Palm Sunday if necessary. A memo that came from Martinez’s office called it “a great political issue” for Republicans. Frist, a surgeon from Tennessee, said on the Senate floor that Schiavo didn’t seem to him to be in a vegetative state, based on his viewing of the Schindlers’ video snippets. Senator Rick Santorum from Pennsylvania called the removal of the feeding tube “a sentence that would not be placed on the worst criminal.” Majority Leader Tom DeLay led the way in the House. Santorum and Frist did in the Senate. Few members of Congress spoke against it. South Florida Congresswoman Debbie Wasserman Schultz was one. “There is no room for the federal government in this most personal of private angst-ridden family members,” she said. Republican John Warner from Virginia was the only senator to speak against it. Hillary Clinton from New York didn’t. Neither did Barack Obama from Illinois. A bill emerged from the Senate after midnight on March 21 that would let the Schindlers ask the federal courts to take another look at the decision made by the state courts.

President Bush flew on Air Force One from vacation in Crawford, Texas, back to Washington to sign it into law just after 1 in the morning.

“Our society, our laws and our courts should have a presumption in favor of life,” he said in a statement.

His brother issued a statement of his own: “I thank the Congress for its swift action allowing Terri’s parents to seek a federal review of the case.” He echoed the op-ed that had run in USA Today. “Certainly, an incapacitated person deserves at least the same protection afforded criminals sentenced to death.”

Michael Schiavo called the federal legislation “outrageous.” If politicians are allowed to meddle with him like this, he said, “they’ll do it to every person in this country.”

A federal judge in Tampa heard attorneys’ arguments for the justification of the relitigation of a case that had been up and down the judicial ladder for the better part of a decade. He said no. The federal legislation had failed. The feeding tube stayed out, and Terri Schiavo neared death.

Bush’s last-ditch effort involved the Department of Children and Families. Attorneys for the state agency made motions to intervene based on thousands of anonymous allegations of abuse against Terri Schiavo. Bush ordered the mobilization of officers from the Florida Department of Law Enforcement—in essence his own police force—and they readied to seize Terri Schiavo if a court order allowed it. “I requested that FDLE in concert with the Department of Children and Families be prepared to enter,” Bush told reporters, “if that was going to be the option available to us”—which it wasn’t, because judges said no. “We were ready to go,” a Bush spokesman told the Miami Herald. “We didn’t want to break the law.”

“I cannot violate a court order,” Bush told CNN on March 27.

People in his email inbox continued to plead with him to do exactly that.

“I do not have the authority that you suggest I have,” Bush responded to one of them. “Under your thesis of executive authority, should I shut down abortion clinics since I abhor abortion?”

On March 30, meanwhile, Bush called a woman in Tampa named Dawn Armstrong, whose husband, Staff Sgt. Robert Armstrong, had died of a heart attack two days before in Camp Shelby, Mississippi, while readying for deployment to Afghanistan. She emailed him later that night, thanking him for “the time you took out of your busy day to express your sorrow for the loss of my husband.”

On March 31, at 6:29 a.m., Bush responded. “Bless you Dawn,” he wrote. “Please let me know if I can be of assistance to you.”

Two and a half hours later, across the bay from Tampa, at the hospice in Pinellas Park, Terri Schiavo died.

Shortly after 12:30, Bush got another email from Dawn Armstrong. “I will be deriving strength from many sources—one source of strength is from you, Governor,” she wrote. “We have witnessed your steadfastness in the face of many challenges for a very long time now …” She continued: “May God grant us all the peace we so long for, in His perfect timing. Take care. I’ll be praying for you and your administration.”

Later that night, just before 9, Bush wrote back.

you are making me cry. Maybe it is the day with Terri’s death. I don’t know but the fact that you would write what you did given your loss, makes me thank God Almighty that there are people like yourself. I am nothing.

Let me know how I can ever be of help to you and your family.

Jeb

***

Terri Schiavo’s death did not spell the end of the governor’s intervention in her case.

One email suggested the firing of Greer.

“I will look into this,” the governor responded.

In an email to one of his staff attorneys, less than 48 hours after the death, Bush asked about her autopsy. “We need to get the details of the autopsy,” he wrote, “meaning what was done if possible.”

The staff attorney responded: “I got an update this morning from FDLE. Six board certified examiners participated. They were attuned to the issues involved. Are working on their reports.” She added: “Santorum’s office called me yesterday …”

In early May, Bush gave a speech in Savannah, Georgia, at the state’s Republican convention, in which he stressed that the party had to be uncompromising in what he saw as “a time of moral ambivalence.”

“There is such a thing as right and wrong,” he said. “Republicans cannot continue to win unless we talk with compassion and passion about absolute truth.”

Saxby Chambliss, then a senator from Georgia, followed by telling the crowd he wanted this Bush to be the next Bush in the White House. He asked the people what they thought. They hollered their approval.

In June, the medical examiner released Terri Schiavo’s autopsy, which confirmed what the judges had ruled for years based on the testimony from doctors concerning her prognosis. Her limbs had atrophied, and her hands had clenched into claws, and her brain had started to disappear. It weighed barely more than a pound and a third, less than half the size it would have been under normal circumstances. “No remaining discernible neurons,” the autopsy said. She couldn’t see. She couldn’t feel, not even pain. Forty-one years after her birth, 15 years after her collapse, Terri Schiavo was literally a shell of who she had been.

Bush read the autopsy—then wrote a letter to the top prosecutor in Pinellas County. He raised questions about Michael Schiavo’s involvement in her collapse and about the quickness of his response calling 911. “I urge you,” the governor wrote to Bernie McCabe, “to take a fresh look at this case without any preconceptions as to the outcome.”

McCabe, a Republican, responded less than two weeks later, saying he and his staff “have attempted to follow this sound advice”—without any preconceptions—“unlike some pundits, some ‘experts,’ some email and Web-based correspondents, and even some institutions of government that have, in my view, reached conclusions regarding the controversy …” McCabe’s assessment: “all available records” were “not indicative of criminal activity.”

Bush relented. “I will follow your recommendation,” he wrote to McCabe, “that the inquiry by the state be closed.”

Michael Schiavo buried the ashes of his wife in a cemetery not far from his house.

***

Today, looking back, what makes Felos, the attorney for Michael Schiavo, angriest about the case is Bush’s letter to McCabe. Even after 18 months of legal wrangling, even after her death, even after the autopsy—after all that—the governor asked a prosecutor to initiate a retroactive criminal investigation of his client. It struck Felos as “odd,” “bizarre”—“personal.”

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Michael Schiavo at home. “He should be ashamed,” Schiavo said of Jeb Bush. “To bring as much pain as he did, to me and my family, that should be an issue.” | Maggie Steber/Redux for POLITICO Magazine

“It was such an abuse of authority,” Felos said. “I think that really raises red flags about his character and his fitness to be president. Jeb didn’t get his way in the Schiavo case. I think he tried to take it out on Michael.”

That, Michael Schiavo said this month, is what makes Jeb Bush “vindictive.” “Knowing that he had no standing in this, he made it worse for everybody,” he said. “He made life, for a lot of people—the nursing home people, the local police, lawyers—he made everybody miserable.”

What makes him “untrustworthy,” he said, is that he fought the courts as long as he did just because he didn’t like the decisions they kept making. “I wouldn’t trust him in any type of political office,” he said.

But for the now former governor of Florida, the second son of the 41st president, the younger brother of the 43rd, the man who sits near the top of the extended early list of likely 2016 Republican presidential candidates — what makes him a “coward,” Michael Schiavo said, sitting on his brick back patio, is that they’ve still never talked.

Bush has never said he’s sorry. He wasn’t. What he was sorry about is how it turned out. “I wish I could have done more,” he told reporters the day of the death.

Other politicians have said they’re sorry, though, Michael Schiavo said. “I’ve had politicians come to my home and apologize to me for what they did to me.” Names? “No names.” But he mentioned Barack Obama and something he said during a debate in Cleveland with Hillary Clinton during the Democratic presidential primaries in early 2008. The question was about what he’d like to have back.

“Well, you know, when I first arrived in the Senate that first year,” Obama said, “we had a situation surrounding Terri Schiavo. And I remember how we adjourned with a unanimous agreement that eventually allowed Congress to interject itself into that decision-making process of the families.

“It wasn’t something I was comfortable with, but it was not something I stood on the floor and stopped. And I think that was a mistake, and I think the American people understood that was a mistake. And as a constitutional law professor, I knew better.”

Did Obama apologize to Michael Schiavo? In a call? At his house? “I can’t comment on that,” Schiavo said with a smile.

“But I never heard from Jeb,” he said.

What would Jeb Bush say to Michael Schiavo now? Nothing. He didn’t want to talk about the Schiavo case for this story.

What would Michael Schiavo, though, say to Jeb Bush?

“Bring it on,” he said. “Come visit me. I’m asking you. Almost 10 years later and I still haven’t heard from you.

“Was he afraid to meet with me? To see me? Why? That’s what burns me. You got so much to say—but where are you? You lost against this little ordinary man from Philadelphia. You lost. And then to continue on? Unspeakable.

“Why? Give me an answer. Why? Why? What was Terri Schiavo to you? Why? Tell me why. Why do you think you had the right to be involved? Why would you put me and my family through hell? And what did you gain from that? And after you lost, why did you pursue it? What did you gain from that?”

The emails didn’t stop.

“Please do not run for President of the United States,” a man from Goshen, Connecticut, wrote. “If you cannot protect the life of an innocent woman in Florida, how can I expect you to protect the United States of America as Commander in Chief?”

The governor also heard from people like Rick Warren. “On behalf of everyone who truly understood the issues, thank you for doing all you could for Terri Schiavo,” the evangelical megachurch pastor and author of the bestselling book The Purpose Driven Life wrote to Bush in an email. “It’s a sad ending but you lead the right side with courage and conviction. I’m proud to call you my friend.”

“Thank you so much,” Bush responded. “You have lifted my spirits.”

Bobby Schindler, Terri Schiavo’s brother, emailed to say that “in time everyone in my family will understand your situation and that you were doing your best …” “I think he probably did as much as possible within his jurisdiction at the time,” he added this month.

“I found him to be a person of principles, and I hold his actions in the Schiavo case in esteem,” said David Gibbs III, one of the Schindlers’ attorneys. Gibbs said that as “a devout Catholic,” Bush was “very personally bothered” by the case and that the governor felt what he did “was the right thing to do.”

Polls showed majorities of people in Florida and around the country disagreed. They objected to his intervention as well as the ensuing flurry of federal involvement. Some of the most fervent believers in what he had done turned on him because of what he had not. They said he “blinked.” “He failed us miserably with Terri Schiavo,” Troy Newman, president of the anti-abortion group Operation Rescue, said this month. “If Jeb had acted, Terri Schiavo would be alive today.”

Still, said Connor, the Bush attorney, “I never, ever heard Jeb Bush waver in the midst of the political fallout. He was steadfast.”

That’s what bothers his critics.

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Maggie Steber/Redux for POLITICO Magazine

“He doesn’t accept loss. He doesn’t accept that the answer is no. He couldn’t possibly consider that he may be wrong,” Wasserman Schultz said this month. “If he had the chance to be president, he’ll do what he’s always done—he’ll do everything he can to implement his very rigid, ideological view of how the world should be. Voters are going to have to ask: Do you want a president who thinks the executive, the president, is supreme, above all else? It’s frightening to think about what he could do with that kind of power as president.”

“Trying to write laws that clearly are outside the constitutionality of his state, trying to override the entire judicial system, that’s very, very dangerous,” said Arthur Caplan, a New York University bioethicist who edited a book about the Schiavo case. “When you’re willing to do that, you’re willing to break the back of the country.”

“It was appalling,” said Jon Eisenberg, one of Michael Schiavo’s attorneys and the author of The Right vs. the Right to Die. “And I think it’s important for people to understand what Jeb Bush is willing to do. It’s important for people to know who Jeb Bush is, and the Terri Schiavo case tells us a great deal about who Jeb Bush is.”

The Jebbest thing Jeb’s ever done hasn’t been an issue so far in Bush’s pre-campaign because it won’t help his potential opponents in the primaries. They’re trying to paint him as a moderate. This demonstrates the opposite.

“People who agree he’s a conservative point to the Schiavo case,” Florida International University political science professor Dario Moreno said this month.

So most of the talk has touched on his more measured stances on immigration and Common Core. He’s been portrayed as a cerebral policy wonk in contrast to his father, the solicitous writer of thank you notes, and his brother, the clownin’-around worker of rooms. This bloodless depiction, though, ignores the intensity, the vehemence, the practically gladiatorial certitude with which he pursued what he wanted in the Schiavo case, and more generally the fervid way in which he believes in what he believes—that “absolute truth” he talked about in his speech in Savannah, two months after the death of Terri Schiavo, and one month before he asked the prosecutor to investigate her husband.

(Source: POLITICO Magazine)

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‘Gagged’ by the Government December 26, 2014

Posted by rogerhollander in Civil Liberties, Constitution, Criminal Justice, Surveillance State.
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Roger’s note: Here is a phrase I find myself using with increasing frequency: “this is truly frightening.”  Do you know what a National Security Letter is?  Do you think that one in a hundred thousand Americans has any idea what a National Security Letter is, or that the notion even exists?  It is a lock-you-up-and-throw-away-the-key kind of thing, the kind of thing Kafka and Orwell tried to warn us about.  The government orders you to provide certain information.  You will go to jail if you refuse to  provide it.  You are not allowed to tell anyone that you have been so ordered.  You are not allowed to tell anyone that you have been ordered not to tell anyone.  If you do, you will be financially ruined and thrown into jail.  No appeal.  No recourse.  Add this to the loss of habeas corpus, indefinite detention, state sponsored and sanctioned systematic torture programs, and presidential kill lists.  Does “truly frightening” really do the trick here anymore?

 

th

A Police State Story

by ALFREDO LOPEZ

For the past three months, I and other leaders of the organization May First/People Link have been under a federal subpoena to provide information we don’t have. During that time, we have also been forbidden by a federal court “gag order” to tell anyone about that subpoena, although we had already announced it and commented on it before the order was sent. Finally, we were forbidden from telling anyone about the gag order itself.

It all sounds comical but any laughter would end if we violated that “gag order,” because that would be a felony and we could face prison sentences and huge fines.

We were silenced by our own government in a case we had nothing to do with and over information we didn’t have…and we couldn’t tell anyone about any of it.

Alfredo Lopez writes about technology issues for This Can’t Be Happening!

 

Report: Senate Report on CIA Will Sidestep Look at Bush ‘Torture Team’ October 19, 2014

Posted by rogerhollander in Constitution, Criminal Justice, Democracy, Dick Cheney, George W. Bush, Human Rights, Torture, War on Terror.
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Roger’s note: The United States government and military violate international law on a daily basis; the Bush/Cheney torture regime, which Obama has outsourced to Bagram and god knows where else, is one of its most blatant manifestations.  Obama’s “we need to look forward not backward” excuse for violating his oath to defend the constitution does credit to Lewis Carroll and Franz Kafka.  The next time you are before a judge accused of a crime, please remind her that it is time to look forward and not backward.  Your charges are sure to be dropped.

 

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According to sources who spoke with McClatchy, five-year inquiry into agency’s torture regime ignores key role played by Bush administration officials who authorized the abuse

 rumsfeld_bush_cheneyFrom left: Donald Rumsfeld, George W. Bush, and Dick Cheney. Thanks to an Obama adminstration that insisted on “looking forward, not backward” on torture, and a Senate investigation that has limited its scope to the mere “action or inactions” of the CIA, neither these men nor the others who helped authorize the torture program will likely ever face prosecution for what experts say were clear violations of domestic and international law. (Photo: Wikimedia/Public domain)

According to new reporting by McClatchy, the five-year investigation led by the U.S. Senate Intelligence Committee into the torture program conducted by the CIA in the aftermath of September 11, 2001 will largely ignore the role played by high-level Bush administration officials, including those on the White House legal team who penned memos that ultimately paved the way for the torture’s authorization.

Though President Obama has repeatedly been criticized for not conducting or allowing a full review of the torture that occured during his predecessor’s tenure, the Senate report—which has been completed, but not released—has repeatedly been cited by lawmakers and the White House as the definitive examination of those policies and practices. According to those with knowledge of the report who spoke with McClatchy, however, the review has quite definite limitations.

The report, one person who was not authorized to discuss it told McClatchy, “does not look at the Bush administration’s lawyers to see if they were trying to literally do an end run around justice and the law.” Instead, the focus is on the actions and inations of the CIA and whether or not they fully informed Congress about those activities. “It’s not about the president,” the person said. “It’s not about criminal liability.”

Responding to comment on the reporting, legal experts and critics of the Bush torture program expressed disappointment that high-level officials in the administration were not part of the review. In addition to the president himself, Vice President Dick Cheney, National Security Advisor Condoleeza Rice and Secretary of Defense Donald Rumsfeld, others considered part of what it sometimes referred to as the “Torture Team,” include: Alberto Gonzales, a former White House counsel and attorney general; David Addington, former vice-president Dick Cheney’s chief of staff; Douglas Feith, who was under-secretary of defence; William Haynes, formerly the Pentagon’s general counsel; and John Yoo and Jay Bybee, who wrote many of the specific legal memos authorizing specific forms of abuse.

“If it’s the case that the report doesn’t really delve into the White House role, then that’s a pretty serious indictment of the report,” Elizabeth Goitein, the co-director of the Brennan Center for Justice’s Liberty and National Security Program at the New York University Law School, said to McClatchy. “Ideally it should come to some sort of conclusions on whether there were legal violations and if so, who was responsible.”

And Kenneth Roth, executive director of Human Rights Watch, indicated that limiting the report to just the actions of the CIA doesn’t make much sense from a legal or investigative standpoint. “It doesn’t take much creativity to include senior Bush officials in the Senate Intelligence Committee’s jurisdiction. It’s not hard to link an investigation into the CIA’s torture to the senior officials who authorized it. That’s not a stretch at all.”

As Mclatchy‘s Jonathan S. Landay, Ali Watkins and Marisa Taylor report:

The narrow parameters of the inquiry apparently were structured to secure the support of the committee’s minority Republicans. But the Republicans withdrew only months into the inquiry, and several experts said that the parameters were sufficiently flexible to have allowed an examination of the roles Bush, Cheney and other top administration officials played in a top-secret program that could only have been ordered by the president.

“It doesn’t take much creativity to include senior Bush officials in the Senate Intelligence Committee’s jurisdiction,” said Kenneth Roth, executive director of Human Rights Watch. “It’s not hard to link an investigation into the CIA’s torture to the senior officials who authorized it. That’s not a stretch at all.”

It’s not as if there wasn’t evidence that Bush and his top national security lieutenants were directly involved in the program’s creation and operation.

The Senate Armed Services Committee concluded in a 2008 report on detainee mistreatment by the Defense Department that Bush opened the way in February 2002 by denying al Qaida and Taliban detainees the protection of an international ban against torture.

White House officials also participated in discussions and reviewed specific CIA interrogation techniques in 2002 and 2003, the public version of the Senate Armed Services Committee report concluded.

Several unofficial accounts published as far back as 2008 offered greater detail.

Cheney and Defense Secretary Donald Rumsfeld relentlessly pressured interrogators to subject detainees to harsh interrogation methods in part to find evidence of cooperation between al Qaida and the late Iraqi dictator Saddam Hussein, McClatchy reported in April 2009. Such evidence, which was non-existent, would have substantiated one of Bush’s main arguments for invading Iraq in 2003.

Other accounts described how Cheney, Rumsfeld, National Security Adviser Condoleezza Rice, Attorney General John Ashcroft, and Secretary of State Colin Powell approved specific harsh interrogation techniques. George Tenet, then the CIA director, also reportedly updated them on the results.

“Why are we talking about this in the White House? History will not judge this kindly,” Ashcroft said after one of dozens of meetings on the program, ABC News reported in April 2008 in a story about the White House’s direct oversight of interrogations.

News reports also chronicled the involvement of top White House and Justice Department officials in fashioning a legal rationale giving Bush the authority to override U.S. and international laws prohibiting torture. They also helped craft opinions that effectively legalized the CIA’s use of waterboarding, wall-slamming and sleep deprivation.

Though President Obama casually admitted earlier this, “We tortured some folks.” — what most critics and human rights experts have requested is an open and unbiased review of the full spectrum of the U.S. torture program under President Bush. And though increasingly unlikely, calls remain for those responsible for authorizing and conducting the abuse to be held accountable with indictments, trials, and if guilty, jail sentences. In addition, as a letter earlier this year signed by ten victims of the extrajudicial rendition under the Bush administration stated, the concept of full disclosure and accountability is key to restoring the credibility of the nation when it comes to human rights abuses:

Publishing the truth is not just important for the US’s standing in the world. It is a necessary part of correcting America’s own history. Today in America, the architects of the torture program declare on television they did the right thing. High-profile politicians tell assembled Americans that ‘waterboarding’ is a ‘baptism’ that American forces should still engage in.

These statements only breed hatred and intolerance. This is a moment when America can move away from all that, but only if her people are not sheltered from the truth.

As McClatchy notes, a redacted version of the report’s summary—the only part of it expected to be released to the public—continues to be under review. Its release date remains unclear.

Obama Charged with ‘Imperial Hubris’ Unmatched Even by Bush September 13, 2014

Posted by rogerhollander in Barack Obama, Constitution, George W. Bush, Iraq and Afghanistan, War.
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Roger’s note: Obama’s latest act of warmongering tells us at least two things.  One is that the positions on issues taken by a candidate are a completely unreliable indicator of what said candidate might do once elected.  Secondly, the fact that Obama’s decision to declare war unilaterally against Isis/Isil, without either congressional or international authority, has gained widespread bipartisan approval (which is rare these days) shows us how the military industrial complex are the de facto rulers of the allegedly democratic nation.

 

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Following his announcement to bomb Syria without congressional approval, president slammed for total disregard for constitutional safeguards regarding war-making

President Obama told the American public on Wednesday night that he will order significantly expanded military operations against the Islamic State in the Middle East, including more U.S. troops to Iraq and a bombing campaign in Syria. Anti-war voices and progressive critics were thoroughly unimpressed with the announced strategy as they issued warnings of the disaster to come. 

A day after President Obama told the American public he was preparing to bomb targets inside the sovereign state of Syria and that he did not need congressional approval to do so, critics are lashing out against what Bruce Ackerman, a professor of law and political science at Yale University, described as “imperial hubris” on Friday.

In his scathing op-ed in the New York Times, Ackerman writes:

President Obama’s declaration of war against the terrorist group known as the Islamic State in Iraq and Syria marks a decisive break in the American constitutional tradition. Nothing attempted by his predecessor, George W. Bush, remotely compares in imperial hubris.

Mr. Bush gained explicit congressional consent for his invasions of Afghanistan and Iraq. In contrast, the Obama administration has not even published a legal opinion attempting to justify the president’s assertion of unilateral war-making authority. This is because no serious opinion can be written.

This became clear when White House officials briefed reporters before Mr. Obama’s speech to the nation on Wednesday evening. They said a war against ISIS was justified by Congress’s authorization of force against Al Qaeda after the Sept. 11, 2001, attacks, and that no new approval was needed.

But the 2001 authorization for the use of military force does not apply here. That resolution — scaled back from what Mr. Bush initially wanted — extended only to nations and organizations that “planned, authorized, committed or aided” the 9/11 attacks.

And Ackerman’s not alone.

Robert Chesney, a professor at the University of Texas School of Law, told theDaily Beast this week that Obama’s claim of authority to bomb ISIS targets in Syria was “on its face” an “implausible argument.”

“The 2001 AUMF requires a nexus to al Qaeda or associated forces of al Qaeda fighting the United States,” explained Chesney, but “since ISIS broke up with al Qaeda it’s hard to make” the case that authority granted by the AUMF  still applies.

And as The Nation magazine’s Zoë Carpenter reports:

The White House’s dismissal of the need for congressional approval is also in conflict with positions Obama himself expressed as a presidential candidate. “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” Obama declared to The Boston Globe in 2008.

The situation in Iraq and Syria does not appear to meet that standard. Obama acknowledged on Wednesday that “[w]e have not yet detected specific plotting against our homeland.” Meanwhile, intelligence sources say that the threat from ISIS has been grossly exaggerated. “It’s hard to imagine a better indication of the ability of elected officials and TV talking heads to spin the public into a panic, with claims that the nation is honeycombed with sleeper cells, that operatives are streaming across the border into Texas or that the group will soon be spraying Ebola virus on mass transit systems—all on the basis of no corroborated information,” former State Department counterterrorism adviser Daniel Benjamin told The New York Times.

According to Ackerman, the president has put himself in a perilous position.

“The president seems grimly determined to practice what Mr. Bush’s lawyers only preached,” the Yale professor concludes in his op-ed. “He is acting on the proposition that the president, in his capacity as commander in chief, has unilateral authority to declare war. In taking this step, Mr. Obama is not only betraying the electoral majorities who twice voted him into office on his promise to end Bush-era abuses of executive authority. He is also betraying the Constitution he swore to uphold.”

And Carpenter says that in addition to defying Congress and his constitutional obligations, Obama should also be worried about the implications for his new strategy under international law. She writes:

It’s worth noting that the legality of an extended cross-border campaign isn’t only a question of the separation of powers. As Eli Lakenoted at The Daily Beast, the White House has not explained the basis for the strikes under international law.

While the administration’s current attempt to circumnavigate Congress is hypocritical as well as potentially illegal, it’s also consistent with the way Obama has exercised US military power before. As Spencer Ackerman notes, he’s extended drone strikes across the Middle East and North Africa; initiated a seven-month air campaign in Libya without congressional approval; prolonged the war in Afghanistan; and, in recent months, ordered more than 1,000 troops back into Iraq. Promises of no boots on the ground notwithstanding, Obama’s war footprint is large, and expanding.

Three-Fifths of an Attorney General Declares POWs “Non-Persons” July 24, 2014

Posted by rogerhollander in Civil Liberties, Constitution, Criminal Justice, Human Rights, Torture.
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Roger’s note: Congratulations.  Barak Obama and Eric Holder, with the essential contribution of George Bush, have managed to score a trifecta: a policy and implementation at Guantanamo Bay that is all three, Orwellian, Kafkaesque and Lewis Carroll at the same time.  Torture, indefinite detention, and people who are not persons.  “Execution first, then the trial” shouted the Queen.

And by the way, the three fifths of a person of African slaves that was in the original constitution is even worse than it appears at face value.  Slaves would have been better off if not considered as persons at all.  The southern states lobbied for three fifths so that their slaves would be counted in the census, which in turn determined their level of representation in the House of Representative.  More slaves on the roll via the three fifths gave the southern state more political clout with which to defend slavery.  Thus, being counted as less than fully human was a double whammy against the slaves.  Kafka would have loved it.

 

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Protestors gathered in New York City’s Time Square in April of 2013 to raise awareness of detainee hunger strikes and indefinite imprisonment of prisoners in Guantanamo Bay. (Photo: flickr / cc /Jordan P)

 

Hand it to President Obama for appointing Eric Holder the first African American Attorney General in US history. Then try to fathom that after generations of civil and human rights work by African Americans — whom the US Constitution once called “3/5 of a person” — it is Holder who declared some brown skinned prisoners of war to be “non-persons.” The men are held outside the law by the US at Guantánamo Bay.

Attorneys for the POWs have asked for an order that would allow group prayers during the holy month of Ramadan, but Holder’s Justice Dept. has formally replied that the men aren’t entitled to relief under the Religious Freedom Restoration Act (RFRA) because the Supreme Court has not found that Guantánamo’s prisoners “are ‘persons’ to whom RFRA applies.”

Holder calls the men “unprivileged enemy belligerents detained overseas during a period of ongoing hostilities.” Calling them prisoners of war would require respecting their human rights.

Cori Crider, an attorney with the legal charity Reprieve who represents some of the men, said in a statement, “I fail to see how the President can stand up and claim Guantánamo is a scandal while his lawyers call detainees non-persons in court. If the President is serious about closing this prison, he could start by recognizing that its inmates are people — most of whom have been cleared by his own Government.”

According to AG Holder, US Appeals Court rulings mean Guantánamo’s POWs — whom he calls “nonresident aliens outside the US sovereign territory” — are “not protected ‘person[s].’” In the infamous Hobby Lobby case Holder argues, the Supreme Court refused to say that the word “‘person’ as used in RFRA includes a nonresident alien outside sovereign United States territory.”

Even if RFRA applied to the POWs, Holder claims, the law “cannot overcome the judicial presumption against extraterritorial application of statutes.” Translation: US Law doesn’t apply at Gitmo, or, the reason the US isolates non-persons at an off-shore military penal colony in the first place is so we can ignore or violate “statutes” with impunity. And if we convince ourselves that “unprivileged enemy belligerents” are not people, we should be able to sleep even if we violate the US torture statute (18 USC, Sec. 1, Ch. 113C), the Convention Against Torture and the US War Crimes Act (18 USC, Sec. 2441) ¾ for years on end.

America’s indefinite imprisonment without charges, hunger strikers and force-feeding

My own jail and prison time, all for political protests, has always come with a clear sentence: six days, 90 days, 180 days; 54 months in all. Anybody who’s been on the inside knows that a release date gives you something fast to hold on to, even if you’re called by a number, fed through a slot, handcuffed for court. But imagine 156 months in a nihilistic “extraterritorial” military prison, with no charges, no trial, no sentence, no visits, phone calls or mail, and no hope.

This is what the USA imposes at Guantánamo, a torturous psychological vice of legal oblivion and manufactured futurelessness. Add to this appalling construction the fact that 72 of 149 remaining inmates were approved for release more than four years ago — but are chained up anyway. Scores of Gitmo’s inmates have looked into this man-made oblivion and decided to die. They are using the only power they have left, the dreadful hunger-strike, both as a protest against their endless detention without trial and their only means of eventually ending it.

The US military has chosen to force-feed hunger strikers, gruesomely plunging plastic tubes up the non-persons’ noses. This abuse violates laws against torture, and the force-feeding schedule is the original basis for the religious rights petition so vigorously opposed by Obama and Holder. The ghastly traumatic stress resulting from enduring force-feeding and the regime of its application make Ramadan’s prayerful group reflection impossible. US District Judge Gladys Kessler has, according to Charlie Savage in the New York Times, publicly condemned the abuse for causing “agony.” For PR purposes the Pentagon and Justice Department call the abuse “enteral feeding.”

Mr. Holder has called “not credible” the prisoners’ complaints about “alleged aspects of enteral feeding” and “allegations that detainees who were being enterally fed were not permitted to pray communally during Ramadan in 2013.” But after the number of hunger strikers reached 106 last year, the military halted its public reporting of the strike.

Significantly, a Navy medical officer at Guantánamo has become the first prison official known to refuse force-feeding duty. The unidentified nurse’s refusal was acknowledged by the Pentagon July 15.

If Holder wins his frightening argument denying the humanity of the men at Guantánamo, even the American Society for the Prevention of Cruelty to Animals could object. The ASPCA says its vision is that “the US is a humane community in which all animals are treated with respect and kindness.”

US Forced to Release Memo on Extrajudicial Drone Killing of US Citizen June 23, 2014

Posted by rogerhollander in Barack Obama, Constitution, Criminal Justice, Democracy, War on Terror.
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Roger’s note: As I have noted more than once on this Blog, the major crimes in history, including the death of Socrates, Jesus, and the Holocaust, were carried out and justified by the existing “legal’ system, that is under the color of law.   Again, history repeats itself, and David Barron of the OLC joins the disgraced criminal ranks of John Yoo, Bruce Bybee and the other torture memo conspirators.

What Excuse Remains for Obama’s Failure to Close GITMO? June 3, 2014

Posted by rogerhollander in Barack Obama, Constitution, War on Terror.
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Roger’s note: One is reminded of Richard Nixon’s famous “if the president does it, it’s not illegal.”

 

close_gitmo

Individuals and organizations like Witness Against Torture and the Center for Constitutional Rights have never wavered in their demand that Obama close the offshore prison in Guantanamo and put an end to the practice of indefinite detention. (Image: CCR)

The excuse-making on behalf of President Obama has always found its most extreme form when it came time to explain why he failed to fulfill his oft-stated 2008 election promise to close Guantanamo. As I’ve documented many times, even the promise itself was misleading, as it became quickly apparent that Obama — even in the absence of congressional obstruction — did not intend to “close GITMO” at all but rather to re-locate it, maintaining its defining injustice of indefinite detention.

But the events of the last three days have obliterated the last remaining excuse. In order to secure the release of American POW Sgt. Bowe Bergdahl, the Obama administration agreed to release from Guantanamo five detainees allegedly affiliated with the Taliban. But as even stalwart Obama defenders such as Jeffery Toobin admit, Obama “clearly broke the law” by releasing those detainees without providing Congress the 30-day notice required by the 2014 defense authorization statute (law professor Jonathan Turley similarly observed that Obama’s lawbreaking here was clear and virtually undebatable).

The only conceivable legal argument to justify this release is if the Obama White House argues that the law does not and cannot bind them. As documented by MSNBC’s Adam Serwer – who acknowledges that “when it comes to the legality of the decision [critics] have a point” – Obama has suggested in the past when issuing signing statements that he does not recognize the validity of congressional restrictions on his power to release Guantanamo detainees because these are decisions assigned by the Constitution solely to the commander-in-chief (sound familiar?). Obama’s last signing statement concluded with this cryptic vow: “In the event that the restrictions on the transfer of Guantanamo detainees in sections 1034 and 1035 operate in a manner that violates constitutional separation of powers principles, my Administration will implement them in a manner that avoids the constitutional conflict.”

Obama defenders seem to have two choices here: either the president broke the law in releasing these five detainees, or Congress cannot bind the commander-in-chief’s power to transfer detainees when he wants, thus leaving Obama free to make those decisions himself. Which is it?

Both Serwer and a new Washington Post article this morning note the gross and obvious hypocrisy of Obama and his Democratic loyalists now using Article-II-über-alles signing statements to ignore congressionally enacted laws relating to the War on Terror. Quoting an expert on signing statements, the Post – referencing Obama’s Bush-era condemnation of signing statements — sums up much of the last six years of political events in the US: “Senator Obama had a very different view than President Obama.”

But the eagerness of many Democrats to radically change everything they claimed to believe as of January 20, 2009 is far too familiar and well-documented at this point to be worth spending much time on. Far more significant are the implications for Obama’s infamously unfulfilled pledge to close Guantanamo.

The sole excuse now offered by Democratic loyalists for this failure has been that Congress prevented him from closing the camp. But here, the Obama White House appears to be arguing that Congress lacks the authority to constrain the President’s power to release detainees when he wants. What other excuse is there for his clear violation of a law that requires 30-day notice to Congress before any detainees are released?

But once you take the position that Obama can override — i.e., ignore — Congressional restrictions on his power to release Guantanamo detainees, then what possible excuse is left for his failure to close the camp? As Jason Leopold notes in an astute article at Al Jazeera, this week’s episode “has led one human rights organization to question why the Obama administration has not acted to transfer dozens of other detainees who have been cleared for release for many years.” He added:

Raha Wala, an attorney with Human Rights First, told Al Jazeera if the administration can make the argument that the five Taliban detainees are transferrable “without any significant problems under the congressionally imposed transfer restrictions” then certainly “the same argument can be made for the detainees who have already been cleared for release.”

Obama defenders seem to have two choices here: either the president broke the law in releasing these five detainees, or Congress cannot bind the commander-in-chief’s power to transfer detainees when he wants, thus leaving Obama free to make those decisions himself. Which is it?

Revealed: Gov’t Used Fusion Centers to Spy on Occupy May 23, 2014

Posted by rogerhollander in Civil Liberties, Constitution, Criminal Justice, Democracy, Occupy Wall Street Movement.
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Roger’s note: The Patriot Act and the establishment of the Orwellian named Homeland Security have taken the United States one giant step forward towards a police state.  Criminalizing dissent is nothing new, goes back to WWI and further; but the scope of it today is truly frightening.

New report exposes US government’s treatment of social movements as ‘criminal or terrorist enterprises’

– Sarah Lazare, staff writer

(Photo: David Shankbone / Wikimedia Creative Commons)

U.S. government Fusion Centers, which operate as ill-defined “counter-terrorism” intelligence gathering and sharing centers, conducted spy operations against Occupy protesters involving police, the Pentagon, the FBI, military employees, and business people.

So finds a report released Friday by the Partnership for Civil Justice Fund based on 4,000 public documents obtained through a Freedom of Information Act request. The release was accompanied by an in-depth article by the New York Times.

“The U.S. Fusion Centers are using their vast counter-terrorism resources to target the domestic social justice movement as a criminal or terrorist enterprise,” PCJF Executive Director Mara Verheyden-Hilliard stated. “This is an abuse of power and corruption of democracy.”

“Although the Fusion Centers’ existence is justified by the DHS as a necessary component in stopping terrorism and violent crime, the documents show that the Fusion Centers in the Fall of 2011 and Winter of 2012 were devoted to unconstrained targeting of a grassroots movement for social change that was acknowledged to be peaceful in character,” the report states.

Police chiefs of major metropolitan areas used the Southern Nevada Counter Terrorism Center to produce regular reports on the occupy movement.

Furthermore, “The Boston regional intelligence center monitored and cataloged Occupy-associated activities from student organizing to political lectures,” according to the report. That center also produced twice-daily updates on Occupy activities.

The New York Times notes:

The Boston Regional Intelligence Center, one of the most active centers, issued scores of bulletins listing hundreds of events including a protest of “irresponsible lending practices,” a food drive and multiple “yoga, faith & spirituality” classes.

Nationwide surveillance has included extensive monitoring of social media, in addition to a variety of spying methods used across Fusion Centers.

“[T]he Fusion Centers are a threat to civil liberties, democratic dissent and the social and political fabric of this country,” said Carl Messineo, PCJF Legal Director. “The time has long passed for the centers to be defunded.”

_____________________

Pete Seeger and the NSA February 4, 2014

Posted by rogerhollander in Art, Literature and Culture, Barack Obama, Civil Liberties, Constitution, Criminal Justice, Democracy, History, Police.
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Roger’s note: Of course, the recent revelations about NSA outdoing George Orwell is no laughing matter.  But if you need a moment of lightness today, click in the first paragraph on Pete’s testimony before HUAC.  It reads like a Monty Python skit.  With the persecutions of Chelsea Manning, Julian Assange, Edward Snowden among others, and the hounding to death of Aaron Swartz, the U.S. government is just getting started in putting its mega data collection to use.  When the political protests heat up to the next level, I believe we are going to see the same kind of witch hunts that we saw under the era of Joseph McCarthy, only much worse.  Those who lived through that period of history can tell you what it is like to be persecuted by the government for your First Amendment protected beliefs.  Perhaps what is most frightening is the militarization of local police departments, and we saw what state violence against legitimate political protest will look like during the brutal repression of the Occupy Wall Street Movement.  Whether you are brought up before a Kafkaesque like official United States government kangaroo court or bashed over the head with police baton or run down by a Homeland Security issues armored vehicle, the chilling result is the same: fascism in our day.  
That it occurs under the auspices of the affable and articulate constitutional lawyer who is the first Black American president or the feisty and charming soon to be first woman American president, will not do much to soften the blow.

 

Published on Tuesday, February 4, 2014 by Deeplinks Blog/EFF

by Cindy Cohn

I am not going to answer any questions as to my association, my philosophical beliefs, or how I voted in any election, or any of these private affairs. I think these are very improper questions for any American to be asked, especially under such compulsion as this.

Pete Seeger, 1955, testimony pursuant to subpoena before the House Un-American Activities Committee.

Pete Seeger (Image: EFF)

The world lost a clear, strong voice for peace, justice, and community with the death of singer and activist Pete Seegerlast week. While Seeger was known as an outspoken musician not shy about airing his political opinions, it’s also important to remember he was once persecuted for those opinions, despite breaking no law. And the telling of this story should give pause to those who claim to be unconcerned about the government’s metadata seizure and search programs that reveal our associations to the government today.

In 1955, Seeger was called before the House Un-American Activities Committee, where he defiantly refused to answer questions about others who he associated with and who shared his political beliefs and associations, believing Congress was violating his First Amendment rights. He was especially concerned about revealing his associations:

I will be glad to tell what songs I have ever sung, because singing is my business. . . .  But I decline to say who has ever listened to them, who has written them, or other people who have sung them.

But if the same thing were to happen today, a Congressional subpoena and a public hearing wouldn’t be necessary for the government to learn all of our associations and other “private affairs.” Since the NSA has been collecting and keeping them, they could just get that same information from their own storehouses of our records.

According to the Constitution, the government is supposed to meet a high standard before collecting this private information about our associations, especially the political ones that the Congressmen were demanding of Seeger. For instance, under the First Amendment, it must“serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”

It doesn’t matter whether the government wants associations to look for possibly “illegal” activities of civil rights activists, Communist sympathizers, anarchists, trade unionists, war resisters, gun rights activists, environmental activists, drug legalization advocates, or wants to go after legitimate criminals and potential terrorists, if the government can’t justify the collection of this “metadata” on this “strict scrutiny” standard, they’re not allowed to collect any of it. Yet right now, they collect all of it.

We’re still learning of all the ways the government is able to track our associations without anything like the due process and standards required by the First and Fourth Amendments, but it is the centerpiece of the NSA’s mass telephone records collection program under Patriot Act section 215, which EFF is fighting with our First Unitarian Church v. NSA case that focuses on the right of association.  Our lead client, the First Unitarian Church of Los Angeles, had its own role in resisting the House Un-American Activities Committee. It’s also part and parcel of the mass collection of content and metadata of people all around the world under section 702 of the FISA Amendments Act. And it’s a real concern even if the companies hold the data, as we’ve seen with the FBI’s self-certified National Security Lettersand the Hemisphere program, where AT&T employees are embedded in government investigations so that they can more readily search through our phone records for the FBI, the DEA and others.

Each of these programs effectively allows the government to do to you what Pete Seeger refused to let them do to him—track your associations, beliefs and other private affairs without proper legal protections.  And they can do this at scale that was unimaginable in 1955, thanks to the digital nature of our communications, the digital tools that allow them to search automatically rather than by hand and the fact that so much more about these private affairs is in the hands of third parties like our phone and internet companies.

While Seeger escaped jail, he was convicted of contempt for his failure to answer these questions. Thankfully Joseph McCarthy and the Un-American Activities Committees were later widely condemned, and Americans understandably look back sadly and with embarrassment on time when the Committee forced Americans to reveal their own associations, along with the associations and beliefs of others.  With the passing of moral and artistic heroes like Seeger, we should redouble our efforts to make sure that our “private affairs” remain safe and the government’s ability to access them remains subject to careful controls.

Join us on February 11 for the day we fight back against mass surveillance.

This work is licensed under a Creative Commons Attribution-Share Alike 3.0 License.
Cindy Cohn

Cindy Cohn is legal director for the Electronic Frontier Foundation (EFF), as well as its general counsel, coordinating over 40 national class action lawsuits against the telecommunications carriers and the government seeking to stop warrantless NSA surveillance

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