Martin Garbus: An Incredible Day in America

[understandinglife]

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

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

Torture is not banned or in any way impeded.

<clip>

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

Link:

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

On Thursday, December 14, 2005, the Washington Post (actually) reported the following regarding addition of classified torture techniques to the US Army Field Manual:

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

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

More at the link:

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

Sterling Professor of Law and Politics at Yale University, Bruce Ackerman, further informs us of the hypocrisy of what Bush, Cheney, McCain and Grahman have concocted to enable torture and denial of habeas corpus to work seamlessly, and, evidently are succeeding in snookering the media:

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

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

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

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

More at the link:

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

And, while the hypocrites are creating even more ways for America to behave as a rogue imperialist, Bush creates an impeachable offense and, of course, refuses to answer questions.

As Hilzoy notes:

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

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

<clip>

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

The Law:

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

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

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

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

http://www.washingtonmonthly.com/archives/individual/2005_12/007789.php