The right's explicit and candid rejection of "the rule of law"

Wednesday May 2, 2007 10:32 EST

-- Glenn Greenwald

(updated below)

The Wall St. Journal online has today published a lengthy and truly astonishing article by Harvard Government Professor Harvey Mansfield, which expressly argues that the power of the President is greater than "the rule of law."

The article bears this headline: The Case for the Strong Executive -- Under some circumstances, the Rule of Law must yield to the need for Energy. And it is the most explicit argument I have seen yet for vesting in the President the power to override and ignore the rule of law in order to recieve the glories of what Mansfield calls "one-man rule."

That such an argument comes from Mansfield is unsurprising. He has long been a folk hero to the what used to be the most extremist right-wing fringe but is now the core of the Republican Party. He devoted earlier parts of his career to warning of the dangers of homosexuality, particularly its effeminizing effect on our culture.

He has a career-long obsession with the glories of tyrannical power as embodied by Machiavelli's Prince, which is his model for how America ought to be governed. And last year, he wrote a book called Manliness in which "he urges men, and especially women, to understand and accept manliness" -- which means that "women are the weaker sex," "women's bodies are made to attract and to please men" and "now that women are equal, they should be able to accept being told that they aren't, quite." Publisher's Weekly called it a "juvenile screed."

I'll leave it to Bob Altemeyer and others to dig though all of that to analyze what motivates Mansfield and his decades-long craving for strong, powerful, unchallengeable one-man masculine rule -- though it's more self-evident than anything else.

But reading Mansfield has real value for understanding the dominant right-wing movement in this country. Because he is an academic, and a quite intelligent one, he makes intellectually honest arguments, by which I mean that he does not disguise what he thinks in politically palatable slogans, but instead really describes the actual premises on which political beliefs are based.

And that is Mansfield's value; he is a clear and honest embodiment of what the Bush movement is. In particular, he makes crystal clear that the so-called devotion to a "strong executive" by the Bush administration and the movement which supports it is nothing more than a belief that the Leader has the power to disregard, violate, and remain above the rule of law. And that is clear because Mansfied explicitly says that. And that is not just Mansfield's idiosyncratic belief. He is simply stating -- honestly and clearly -- the necessary premises of the model of the Omnipotent Presidency which has taken root under the Bush presidency.

This is not the first time Mansfield has expressly called for the subordination of the rule of law to the Power of the President. In January of 2006 -- in the immediate aftermath of revelations that President Bush had been breaking the law for years by spying on the telephone conversations of Americans without warrants -- Mansfield went to The Weekly Standard and authored a truly amazing article, which I wrote about here (see item 2).

Unlike dishonest Bush followers who ludicrously claimed that Bush's eavesdropping was not illegal, Mansfield embraced reality and candidly argued that President Bush possesses the power to break the law in order to fight The Terrorists. The headline of that article presented the same mutually exclusive choice as the WSJ article today: The Law and the President -- in a national emergency, who you gonna call?

In that article, Mansfied claimed, among other things, that our "enemies, being extra-legal, need to be faced with extra-legal force"; that the "Office of President" is "larger than the law"; that "the rule of law is not enough to run a government"; that "ordinary power needs to be supplemented or corrected by the extraordinary power of a prince, using wise discretion"; that "with one person in charge we can have both secrecy and responsibility"; and most of all:

Much present-day thinking puts civil liberties and the rule of law to the fore and forgets to consider emergencies when liberties are dangerous and law does not apply.

"Law does not apply" -- that is Mansfield's belief, and the belief of the Bush movement. I didn't think it was possible, but Mansfield, with today's article in The Wall St. Journal, actually goes even further in advocating pure lawlessness and tyranny than he did in that remarkable Weekly Standard screed. He begins by describing "the debate between the strong executive and its adversary, the rule of law." He then says: "In some circumstances I could see myself defending the rule of law," but "the rule of law has two defects, each of which suggests the need for one-man rule."

The rule of law has two defects, each of which suggests the need for one-man rule. That is what is on the Op-Ed page of The Wall St. Journal this morning. The article is then filled with one paragraph after the next paying homage to the need for a Great Leader who stomps on the rule of law when he chooses -- literally:

The best source of energy turns out to be the same as the best source of reason--one man. One man, or, to use Machiavelli's expression, uno solo, will be the greatest source of energy if he regards it as necessary to maintaining his own rule. Such a person will have the greatest incentive to be watchful, and to be both cruel and merciful in correct contrast and proportion. We are talking about Machiavelli's prince, the man whom in apparently unguarded moments he called a tyrant. . .

The president takes an oath "to execute the Office of President" of which only one function is to "take care that the laws be faithfully executed." In addition, he is commander-in-chief of the military, makes treaties (with the Senate), and receives ambassadors. He has the power of pardon, a power with more than a whiff of prerogative for the sake of a public good that cannot be achieved, indeed that is endangered, by executing the laws. . . .

In quiet times the rule of law will come to the fore, and the executive can be weak. In stormy times, the rule of law may seem to require the prudence and force that law, or present law, cannot supply, and the executive must be strong.

In the course of explaining how the rule of law applies only in "quiet times," Mansfield also argues that "civil liberties are subject to circumstances," not inalienable, and that "in time of war the greater dangers may be to the majority from a minority." Thus, he explains -- in what might be my favorite sentence -- "A free government should show its respect for freedom even when it has to take it away."

I'm not going to spend much time rebutting the notion that the American President has the power to act as a Prince and override the rule of law when circumstances supposedly justify that. For one thing, given that this belief has governed our country since the 9/11 attacks, I've made the argument many times before, including here and here, as well as in my book.

But more so, one would hope that no response is really necessary, since most Americans -- outside of the authoritarian cult that has followed George W. Bush as Infallible War Leader -- instinctively understand that America does not recognize such a thing as a political official with the power of "one-man rule" that overrides the rule of law. That we are a nation of laws, not men, is so basic to our political identity that it should need no defense.

And for those with any lingering doubts about how repugnant Mansfield's vision is to the defining American political principle, I would simply turn the floor over to the great American revolutionary Thomas Paine (.pdf), writing in Common Sense:


The point here is not to spend much time arguing that Mansfield's authoritarian cravings are repugnant to our political traditions. The real point is that Mansfield's mindset is the mindset of the Bush movement, of the right-wing extremists who have taken over the Republican Party and governed our country completely outside of the rule of law for the last six years. Mansfield makes these arguments more honestly and more explicitly, but there is nothing unusual or uncommon about him. He is simply expounding the belief in tyrannical lawlessness on which the Bush movement (soon to be led by someone else, but otherwise unchanged) is fundamentally based.

This is why he is published in The Weekly Standard and The Wall St. Journal -- the two most influential organs for so-called "conservative" political thought. All sorts of the most political influential people in our country -- from Dick Cheney to Richard Posner to John Yoo and The Weekly Standard -- believe and have argued for exactly this vision of government. They literally do not believe in our constitutional framework and our most defining political values. They have declared a literally endless War which, they claim, not only justifies but compels the vesting of unlimited power in the President -- "unlimited" by Congress, the courts, American public opinion and the rule of law.

That continues to be the central political crisis we have in this country. It is an encouraging development that Congress is exercising aggressive oversight and investigative powers, but the administration is stonewalling completely, and will continue to, because they do not recognize any duty to respond, to answer questions, to be subject to scrutiny or accountability. We live in stormy times, and thus, as Mansfield says: "In stormy times, the rule of law may seem to require the prudence and force that law, or present law, cannot supply, and the executive must be strong."

That is why -- as jarring as it is -- it is actually necessary to ask presidential candidates whether they intend to exercise the power to imprison American citizens with no charges of any kind. The dominant political movement in this country believes in that power and has defended and exercised it. Mansfield's beliefs may be twisted and tyrannical and radical and profoundly un-American. But they are also the beliefs that have propelled our government for the last six years and -- absent some serious change -- very well may continue to propel it into the future.

UPDATE: I just want to add one related point here. Much of the intense dissatisfaction I have with the American media arises out of the fact that these extraordinary developments -- the dominant political movement advocating lawlessness and tyranny out in the open in The Wall St. Journal and Weekly Standard -- receive almost no attention.

While the Bush administration expressly adopts these theories to detain American citizens without charges, engage in domestic surveillance on Americans in clear violation of the laws we enacted to limit that power, and asserts a general right to disregard laws which interfere with the President's will, our media still barely discusses those issues.

They write about John Edwards' haircut and John Kerry's windsurfing and which political consultant has whispered what gossip to them about some painfully petty matter, but the extraordinary fact that our nation's dominant political movement is openly advocating the most radical theories of tyranny -- that "liberties are dangerous and law does not apply" -- is barely noticed by our most prestigious and self-loving national journalists. Merely to take note of that failure is to demonstrate how profoundly dysfunctional our political press is.

-- Glenn Greenwald

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Tuesday May 1, 2007 10:27 EST

Fred Hiatt and the "Triumphant Top Gun"

(updated below - Update II - Update III)

Thus far in 2007, the most politically insightful observation was made by Rep. David Obey in responding to one of Fred Hiatt's war-mongering, patriotism-challenging screeds: "Let me submit to you the problem we have today is not that we didn't listen enough to people like the Washington Post. It's that we listened too much."

As the Four Year Anniversary of "Mission Accomplished Day" approaches, and we fondly recall the inspiring media swooning over George Bush's glorious Declaration of Victory while prancing around in his fighter pilot costume, there are few commentaries as revealing as the Bush-worshipping Editorial in The Washington Post authored by Fred Hiatt on May 11, 2003.

The Editorial Hiatt churned out that day (via Lexis -- and also, via sysprog, here) -- devoted to mocking Democrats for criticizing the Leader's Mission Accomplished Festival -- by itself could serve as a time capsule conveying to future generations all that went wrong in our country during this period. First is the Editorial's headline:

Misfiring at 'Top Gun'

George Bush shows off his powerful "top gun." Democrats who criticize him "misfire." The Editorial begins, right in its headline, with drooling adoration for the Leader's faux masculinity so transparent and cringe-inducing that it actually rivals the incomparable Chris Matthews-G. Gordon Liddy session that included admiration for the size of the President's genitalia (literally) so candid and frank that it was virtually pornographic. These are our serious pundits and foreign policy analysts.

This is the first paragraph of Hiatt's Editorial:

DID PRESIDENT BUSH arrive by fighter jet when he could have taken a helicopter -- for $ 7 less per hour? Did the USS Abraham Lincoln delay its return by a day so that Mr. Bush could make his dramatic tailhook landing? Did White House press secretary Ari Fleischer lie when he said that Mr. Bush had to arrive by jet and then switched his story to say that the president chose to land that way? Are the Democrats who are raising these questions secretly working for Karl Rove?

Democrats who question the Leader's conduct or challenge the veracity of his statements are foolish and are inviting their own political doom. War Leaders are endowed with the prerogative of telling us Glorious Lies. It continues:

Presidential staffs -- and we know this is a shocking concept -- worry quite a bit about the way their visits will look on TV -- and they work to get the most picturesque backdrop! And a president who wins a war -- whether you agreed with that war or not -- pretty much gets to greet returning troops wherever he wants.

The Leader won the War in Iraq in May, 2003. Let's repeat that: Fred Hiatt declared, in May, 2003, that George Bush had won the Iraq War. And the triumphant Commander-in-Chief is entitled to engage in whatever Victory Rituals he wants without having to be questioned or challenged. Then:

Not since the ado over whether Mr. Clinton held up Air Force One on the tarmac for an hour to get a $ 200 haircut has there been a controversy this fundamentally silly. The difference is that the Republicans scored political points with haircut-gate; here, Democrats are only hurting themselves with churlish and petty complaints.

The false "controversy" over Clinton's haircut was a powerful political weapon in the potent hands of the Republicans. But challenging President Bush's Declaration of Victory in a plainly not-yet-completed war, and objecting to the grotesque propaganda used to do it, is both petty and self-destructive. And:

Their real gripe with Mr. Bush is that he looked great; the president pulled off his "Top Gun" act as much as Michael Dukakis flubbed his spin in a tank.

George W. Bush is a real warrior who is strong, powerful, masculine and a genuine Man -- even swooningly hot ("he looked great") -- unlike the effeminate, clumsy loser Democrats. The sober, serious Hiatt continued:

And what was the result of their agitating? Even more showings of the same dramatic footage of a triumphant commander-in-chief. The only rational explanation for this conduct is that it is a brushback pitch designed to intimidate the Bush campaign from using carrier footage in campaign commercials -- but even then, it seems destined (a) not to work and (b) to backfire.

George W. Bush was not a public servant. He was not even merely the President. He was the "triumphant commander-in-chief." Therefore, to do anything other than genuflect to his warrior greatness was both improper and stupid. After all, he just won the Iraq War. Finally:

Yes, yes, Republicans seemed to demand investigations every time Mr. Clinton -- or Hillary Clinton, for that matter -- went outside the Beltway, but Democrats are sorely mistaken if they think the "they did it too" argument is going to have any sway with voters. Mr. Bush's visit to the USS Abraham Lincoln may have been the real kickoff of his presidential campaign. If the Democrats' tone-deaf handling of this episode is any indication, he may well get his four more years.

Just because Republicans investigated Bill Clinton for every petty accusation they could invent does not mean that Democrats should try to exercise oversight over the Triumphant Commander-in-Chief. Voters don't want the Victorious War President criticized, and to think otherwise is "tone-deaf."

Any decent human being who authored such idiocy -- who declared the War in Iraq to have been "won" back in May, 2003 and who openly drooled over the "top gun" of the "triumphant Commander-in-Chief" -- would feel a sense of deep shame and regret. But Fred Hiatt continues to prance around as the Serious Adult in Washington, the one who is sober and sophisticated about hard-nosed matters of foreign policy and war, and who continues to mock those who oppose the war as unserious losers -- as though Fred Hiatt's judgment is worth anything.

As Rep. Obey put it: "those of us who voted against the war in the first place wouldn't have nearly as hard a time getting us out of the war if people like The Washington Post and those who criticized us on the floor yesterday hadn't supported going into that stupid war in the first place."

UPDATE: The Politico -- appropriately enough -- is hosting the first debate for GOP presidential candidates, and is deciding which questions to submit based upon popular vote. Silent Patriot of Crooks and Liars had an excellent idea -- to submit a question asking the candidates to state their views as to whether the President has the power to imprison U.S. citizens without charges or process of any kind (a la Jose Padilla), in light of the prior revealing answers from Rudy Giuliani and Mitt Romney to that question.

S.P. has now submitted the question to The Politico, and has also posted instructions for how you can vote for that question, to ensure that it gets asked (you basically go here, search for "Silent Patriot," and click the "I LIKE THIS QUESTION" button under that question; it's now the most popular question, so it should be at the top).

It's a worthwhile exercise, I think, in order to compel the GOP candidates to go on record as to whether they intend to claim the power to imprison American citizens without charges (I'd like to hear Democratic candidates answer that as well). Vote early and often (rules permitting, of course).

UPDATE II: One has to acknowledge that this commenter at C&L makes quite a good point:

I just can't believe that here in America such a question would be even asked. What the hell happened to our country? Can you imagine that question being asked in the past elections before 2004? No one would have even thought of it.

The most extremist behavior has become so normalized in the last five years that it is easy to forget just how radical it is. The fact that the question even needs to be asked at all -- let alone that most, if not all, of the GOP candidates will almost certainly embrace (or at least not reject) the tyrannical power of process-less imprisonment of U.S. citizens -- is itself rather remarkable.

UPDATE III: The question we submitted regarding lawless detentions of U.S. citizens is now at the top of the list as the most popular question (but keep voting for it to ensure it stays there). As a result, we have decided to submit as many questions as possible, to ensure that the GOP candidates are forced to answer real questions (the top 20 or so highest vote-getting questions will be asked of the candidates).

Thus far, we have submitted these additional questions:

* Do you think the process of waterboarding -- where the U.S. takes prisoners, straps them to a chair, and pours water on their face so they are in terror of drowning to death -- is a practice consistent with America's moral credibility in the world? -- Vote for that question here (search for "Silent Patriot" or the text of the question) -- two of these questions are now on that page for the top vote-getters

* A recent worldwide poll showed that under the Bush presidency, America has become the third most unpopular country in the world -- right behind Iran and just ahead of North Korea. Why has that happened? -- Vote for that question here (search for "CrooksandLiars" or the text of the question)

To vote for those questions, go to the linked page, find the question, and click the "I LIKE THIS QUESTION" button under each questions (you may have to click to the next page to find it). If you have suggestions for more questions, feel free to email them or leave them in comments (there is a 250-character maximum, so they must be quite short and concise).

No One is Above the Law: New DOJ Leadership Neede

JURIST Contributing Editor David Crane of Syracuse University College of Law, former Chief Prosecutor for the UN Special Court for Sierra Leone and a former senior inspector general in the US Department of Defense, says that in the wake of revealed misuse of authority by the FBI under the Patriot Act - compounding other missteps related to prisoners of war, torture, political pressure on district attorneys, arrogant abuse of power related to national security and violations of the Foreign Intelligence Surveillance Act - new leadership is needed in the US Justice Department, and in the FBI in particular...

---

As Chief Prosecutor of the international war crimes tribunal in West Africa called the Special Court for Sierra Leone, I told the people there that no one is above the law. It was a statement I staked my personal and professional reputation on to prove to a horrified and beaten-down population that the law is the cornerstone of any free and democratic nation. As an American lawyer I used the United States as the example of how we hold our senior leaders accountable for their transgressions.

On Friday, FBI Director Robert Mueller stated that he was the one in charge and should be held accountable for the apparent misuse of an important, yet intrusive law enforcement tool: national security letters. Absolutely, he should be held accountable. This Department of Justice, under the leadership of Attorney General Alberto Gonzales, has not served our republic well. From missteps related to prisoners of war, torture, political pressure on district attorneys, to arrogant abuse of power related to national security, including violations of the Foreign Intelligence Surveillance Act and this recent misuse of authorities under the Patriot Act, the chief law enforcement office of the United States has bungled his job.

The cornerstone to this great nation is the law. We are in our second Cold War, an ideological struggle with religious criminals who seek to dominate an entire ancient religion for their own personal agenda. Civilization can only win this struggle by holding fast to the rule of law, using it as the ultimate weapon against those who seek to harm us. When we step away from that principle we begin to move down a very dark path indeed.

Both Gonzales and Mueller admitted publicly that members of our FBI broke the law. Those who did should be appropriately dealt with under the law. Yet the report hints of systemic problems, lack of oversight, sloppy administration and follow-up. It even appears that there was some intent to under-report the use of national security letters. This is a leadership and management issue at the highest level.

As a former senior inspector general in the Department of Defense and someone who has lead and managed federal and international organizations, large and small for over three decades, I know when an agency is poorly led. The FBI and the Justice Department are poorly led. This recent report by the Inspector General of that department shows this fact.

New leadership is needed in the Justice Department. As these violations of law and policy were under the watch of Robert Mueller, he should resign. No one is above the law, not even the Director of the FBI.

Congress should show leadership, as well and oversee more closely the Attorney General. The term “trust, but verify” is so apt here to ensure that the rule of law is followed in our own Justice Department. How many times can you forgive, overlook, or second-chance conduct that clearly steps away from a document that boldly declared centuries ago: “We the people of the United State, in order to form a more perfect union, establish justice…”

David Crane

David M. Crane is a professor at Syracuse University College of Law, and former founding Chief Prosecutor for the UN Special Court for Sierra Leone (2002-2005). He previously spent over 30 years in US federal government service as a Senior Inspector General, Department of Defense, Assistant General Counsel of the Defense Intelligence Agency, and Waldemar A. Solf Professor of International Law at the United States Army Judge Advocate General’s School.

Lewis "Scooter" Libby is a felon

The criminal conviction of one of the Bush administration's most powerful figures is a victory for the rule of law, and a warning that no official is invulnerable.

By Glenn Greenwald

Mar. 06, 2007 | A unanimous federal jury today found former Cheney Chief of Staff Lewis "Scooter" Libby guilty of four of the five felonies for which he was indicted. Libby was convicted of two counts of perjury, one count of obstruction of justice and one false statement, all of which arise out of the lies he told to the FBI and grand jury as it investigated the "outing" of CIA operative Valerie Plame. What had appeared for several years to be a powerful shield possessed by top Bush officials against being held accountable under the law looks much less powerful today. Dick Cheney's most trusted advisor is now a convicted felon.

The implications of this trial are likely to be far-reaching and long-lasting. There were few officials with greater influence or power during the first four years of the Bush administration than Libby. He was not only the vice president's chief of staff, but also assistant to the president himself in national security matters. But Libby's importance in the Bush administration is reflected by far more than his formal titles.

He has long been one of the most well-connected neoconservatives in the country. Along with Cheney, Donald Rumsfeld, Paul Wolfowitz, Jeb Bush and Norman Podhoretz, Libby was one of the 25 signatories to the founding statement of Bill Kristol's empire-embracing Project for a New American Century in 1997. PNAC called for an invasion of Iraq long before the 9/11 attack was seized on as the "justification" for that invasion. When it comes to the political movement that has dominated the American government for the last six years, Scooter Libby was at its very crux, a close intimate of America's most powerful political officials.

Today's event sends a potent and unmistakable message, one that is absolutely reverberating in the West Wing: If Libby can be convicted of multiple felonies, then any Bush official who has committed crimes can be as well. Not only are Bush officials subject to the rule of law (their radical theories of executive power to the contrary notwithstanding), they are also vulnerable to legal consequences (the defeatist beliefs of some Bush critics notwithstanding). Having the nation watch this powerful Bush official be declared a criminal -- despite having been defended by the best legal team money can buy -- resoundingly reaffirms the principle that our highest political officials can and must be held accountable when they break the law.

Some of the future events in the Libby case are easy to foresee, while others are more uncertain. Almost immediately after the verdict was announced, Libby's counsel, Theodore Wells, vowed that Libby would request a new trial and if that is unsuccessful (as it likely will be), he will appeal the conviction. Those are routine steps in a case of this magnitude. What is both less routine and less certain is the question of whether prosecutor Patrick Fitzgerald is planning to leverage this conviction in order to secure additional indictments against other possible defendants, possibly the vice president himself. Fitzgerald stressed after the verdict that he had "no expectations" of further indictments, but he left open that possibility in the event that new information came to light that warranted further proceedings.

The Bush administration has no good options for how to respond to this conviction politically. The seriousness of the charges is manifest. Libby was accused, and now found guilty of, obstructing justice in connection with an FBI investigation into the disclosure of a covert CIA operative. Unlike, say, defenders of Bill Clinton during his perjury impeachment trial in the Senate, the administration cannot plausibly make the claim -- though its proxies in the conservative blogosphere continue to do so -- that the underlying investigation that Libby obstructed was not serious. And the endless parade of emphatic speeches delivered by top Republicans about the Seriousness of Perjury during the Clinton impeachment proceedings somewhat hamstrings the ability of Republicans to be dismissive of the importance of these crimes.

Nor are potential Libby defenders able to depict Fitzgerald as some sort of partisan, out-of-control Ken Starr figure. Fitzgerald was appointed as special counsel by the Bush Justice Department, and has no Starr-like history of partisan affiliations one way or the other. By refusing to indict Karl Rove and other Bush officials who were almost certainly indictable -- a decision that disappointed most Bush critics following this case -- Fitzgerald has revealed himself to be a model of prosecutorial restraint. He is also now a vindicated prosecutor.

While Libby associates will undoubtedly unleash all sorts of smears on Fitzgerald in order to discredit the conviction, there are simply no effective weapons against what ought to be the serious political damage resulting from this trial. Whatever one wants to say about Fitzgerald, the jury, after lengthy deliberations, has spoken.

It is worth noting, perhaps most important, that there is a whole array of other pending judicial matters that, either directly or implicitly, entail accusations against high Bush officials, including the president himself, of engaging in serious criminal behavior. Last August, a federal district judge, Anna Diggs Taylor, ruled that President Bush's warrantless eavesdropping program violated not only the Constitution but also FISA, a criminal statute making it a federal felony to eavesdrop on Americans without judicial warrants and imposing punishments of five years' imprisonment for each offense and fines up to $10,000.

Also last fall, the U.S. Supreme Court in the Hamdan case rejected the Bush administration's principal defense for its violations of the Geneva Conventions not only with regard to military commissions, but also generally. By holding that Common Article 3 of the Conventions applies to all detainees, and by emphasizing that a failure to treat detainees in compliance with Common Article 3 constitutes "war crimes," the Supreme Court effectively found that Bush officials have authorized and engaged in what clearly could be construed to be felony violations of the War Crimes Act (18 U.S.C. sec. 2241), which makes it a federal crime to violate war treaties such as the Geneva Conventions. Though the administration succeeded in inducing the Republican-led Congress to enact the Military Commissions Act as a shield against retroactive criminal liability, the constitutionality of that law, and the efficacy of the criminal shield provisions, are far from certain.

Beyond these known areas of potential criminal liability, the control of Congress that Democrats have now been given enables them to conduct probing investigations in order to finally penetrate the unprecedented wall of secrecy behind which the Bush administration has operated. Meaningful investigations will almost certainly generate additional sources of potential criminality on the part of this government.

There have been times in American history when it appeared as though certain political leaders were too powerful to be held legally accountable for their actions. Yet the rule of law in this country -- as slow, imperfect and endangered as it sometimes may be -- typically prevails over a particular elected official or political movement. Richard Nixon was reelected in 1972 with the largest landslide in American history, but he spent the next two years watching as his closest aides were hauled off to criminal proceedings and convicted, and in 1974, Nixon himself was forced from office, dependent upon Gerald Ford's pardon in order to avoid being imprisoned himself.

This administration has concocted all sorts of radical theories to justify its transgressions and outright violations of the law. It began that behavior at a time when it appeared that it was invulnerable and too politically powerful to be held accountable. After today's conviction of one of its own, it most assuredly sees things differently.

Nuggets from a Nuthouse: Meaningful Elections and Establishment Relativism

Z Magazine, March 2007

(Part 4)

By Edward S. Herman


The U.S. establishment takes a “pragmatic” view of the merits of elections, with approval or disapproval depending on how well it “works,” as perceived by the dominant interests. Call it “establishment relativism.” We know that the rightwing hates relativism, but there are some relativisms that they can accept, mainly by playing dumb. When the good guys win--and “good” means serviceable to U.S. interests as seen by the corporate/political establishment--there is endless generosity and looking-the-other-way in evaluating that win. In Mexico, for example, when Salinas won by a fraudulent recount in 1988, and Calderon won by probable fraud in 2006, there were no serious complaints here; and when Yeltsin won a true laugher in 1996, helping consolidate the triumph of the looting oligarchs and death of any possible meaningful democracy in Russia, there was positive enthusiasm in this country. But when a Chavez or Hamas wins, pragmatism calls for doubts about the honesty of the election (Chavez) and/or questions about the threat to peace in a victory of “terrorists” (Hamas).

In the Chavez case, the doubts and threats of his electoral legitimacy were so severe that the United States colluded in a coup in 2002, that was quickly reversed but demonstrated the extremely obvious fact that U.S. leaders are not about to respect election results when the wrong party wins. Much fault was found with Chavez’s further electoral victories, but it became very difficult to claim unfairness with his solid majorities, no evidence of tampering, and with the bulk of the Venezuelan media furiously anti-Chavez. (Of course, for the U.S. establishment Chavez is showing his true colors by possibly refusing to renew the license of a TV station that openly supported the 2002 coup--an action for which a station in the United States in an analogous situation would almost surely have been closed down immediately and its top officers prosecuted for treason.)

The Hamas case is equally interesting. Instead of respecting what seems to have been a quite honest vote, with the wrong party winning Israel began a brutal military assault on the Palestinians, arrested Hamas legislators, and cut off funds owed the Palestinians. These and other actions were designed to beat and starve the Palestinians into ousting Hamas, but the Israelis were also using Hamas as an excuse to crush any resistance to ethnic cleansing and to induce a greater “voluntary” exit from the territory. The United States and EU cooperated in this brutal process, the former along with Israel also giving financial support and arms to Fatah in order to strengthen the opposition to Hamas, and possibly encourage a civil war--recall the U.S. and Israeli encouragement and support of the Iraq-Iran war, with occasional explicit mention of the merit of mutual killing between these problematic states.

In this same time frame Israel was committing major war crimes in a genocidal process in Gaza that violated Western “enlightenment values” as well as all kinds of international laws, and steadily advanced their ethnic cleansing on the West Bank and in Jerusalem. Despite this, in a historically unique action the EU actually imposed sanctions on the victims of the occupation for voting the wrong way. Hamas’s terrorist record and refusal to recognize Israel is the rationale here; Israel’s vastly greater state terror and steady law violations produce no negative actions—and Israel’s voting Ariel Sharon in as president in 2001, the butcher of Sabra-Shatila and Qibya, whose terroristic killings exceeded that of Hamas by a wide margin, and were greater than those of Carlos the Jackal by better than 10-1, again elicited no complaints or penalties.

It is also of interest that in Palestine, Hamas opponent and Fatah leader Mahmoud Abbas is calling for new elections, which Israel and the United States support as they rush money as well as arms to Abbas. There is no legal basis for such a call, but because the election produced the wrong result a new election is pressed. On the other hand, in Lebanon, where with Hezbollah representatives leaving the government there is solid legal grounds for the calling of a new election, here the United States and its allies demur and oppose the idea. It would very likely give Hezbollah more political power and reduce that of a Western-supported client, so the attitude toward an election to ascertain the people’s will is different from the Palestine case.

Another interesting case of election pragmatics is the way the 2006 mid-term U.S. election is working out. Bush was free to escalate the Iraq war after the 2004 election because he won and thus had an election go-ahead. The Democrats and media put up little opposition. In the 2006 election the Republicans lost heavily, and both direct verbal evidence of voter sentiment and poll results show that a strong majority of the public want the United States out of Iraq in two years or less. But the corporate/political establishment does not want a quick exit. The same lobby that has produced the Western support for Israel’s violent response to the Hamas electoral victory and that gives its imprimatur to Israeli apartheid and ethnic cleansing, wants the United States to stay and even to broaden the war to Iran. The result is that Bush, having just suffered a crushing election loss, and with a popularity rating in the 28-31 percent range, is still able to “decide” and escalate the Iraq war. The last election had a “bad” result from the elite viewpoint, and it will therefore have little effect on policy in the Middle East. After all, this is a democracy constrained to work for the “national interest.”

Principle of Non-Intervention

U.S. intervention in elections in Palestine, Venezuela, Russia, Yugoslavia, the Ukraine, Nicaragua (etc.) has been massive, and so has intervention in the forms of military and economic aid and direct military attack. There are almost no holds barred, and almost nothing in the way of subversion and military attack that the mainstream media won’t normalize. After all we are WE, the good and necessary policeman in service to global interests. It’s revealing that although the invasion-occupation of Iraq was not only based on lies but was a classic case of aggression in violation of the UN Charter, this is unmentionable in the media--WE have aggression rights, by patriotic premise.

Of course we still believe in the principle of non-intervention, but as in the case of elections, with that special pragmatic-relativistic touch. Thus the United States joined with seven Middle Eastern states (Egypt, Jordan, Kuwait, Saudi Arabia, Oman, Qatar, and the U.A.E.) in January to issue a statement which affirmed, among other things, that "disputes among states should be settled peacefully and in accordance with international norms, and that relations among all countries should be based on mutual respect for the sovereignty and territorial integrity of all states, and on the principle of noninterference in the internal affairs of other nations." ("Gulf Cooperation Council - Plus Two's Ministerial Statement," U.S. Department of State, January 16, 2007). It is obvious that this accolade to the principles of sovereignty and noninterference was directed not against the March 2003 U.S. invasion of Iraq or a possible U.S.-Israeli military attack on Iran, but rather against Iran and Syria, which have faced the U.S. charge that they are interfering in the internal affairs of the newly liberated Iraq. Their interventions in a struggle in a next door neighbor destabilized by an aggression from across the ocean are illicit—the big and ongoing one from a distant power is not only licit, it isn’t even intervention.

Bush and his associates are now warning Iran on a daily basis against intervening in Iraq. They ignore that Iraq is now supposedly a sovereign state whose leaders are supposedly in charge of deciding who can and who cannot intervene and do business in Iraq territory.

This is not hypocrisy: it reflects that internalized belief that the Global Godfather has an inherent right to straighten out the world’s unruly children. His interventions are in a separate class. When Paul Wolfowitz stated that “I think all foreigners should stop interfering in the internal affairs of Iraq” (NYT, July 22, 2003), he just took for granted the Global Godfather’s right to be at home anywhere within his domains.

Rule of Law

The same point holds for the rule of law. We believe in the rule of law, and our leaders refer to it regularly as something that we want to provide, along with “stability.” But as with non-intervention, the rule of law doesn’t apply to us, by our self-designated rights as the most powerful, implicitly good, and self-appointed global policeman. It might interfere with our bringing peace and stability everywhere. The new classic is of course the invasion-occupation of Iraq, 2003-2007, where we ran roughshod over the UN charter and hence over U.S. law as well, given that the Charter is an international agreement that becomes part of U.S. law. The same is true of the violations of the international conventions against torture. The Military Commissions Act tries to exempt U.S. officials from the reach of the international laws on torture, but it remains a constitutional issue as to whether this can be done even in its application at home.

Of course, if you are strong enough and your elite supports you, the rule of law can be ignored simply by virtue of superior force. Thus when the International Court found against the United States in a case brought by Nicaragua in 1986, and called for reparations for the “unlawful use of force,” the United States paid no attention to the court ruling. And, importantly, the U.S. establishment didn’t complain, but implicitly or explicitly sanctioned this brazen refusal to abide by the rule of law. In a dramatic illustration, the New York Times supported this refusal editorially, declaring the International Court a “hostile forum” ("America's Guilt - or Default," July 1, 1986) --a lie, and its editorial larded with errors of fact and silly chauvinistic bias, but demonstrating the paper’s own integration into the imperial enterprise and resultant willingness to disregard mere matters of law (repeated in 2002-2003 when the editors never mentioned the problem of UN Charter prohibitions against aggression).

The international community--that is, governments and international institutions, as opposed to the world’s people--also accepts and even supports the U.S. refusal to abide by the rule of law. Not only did it do nothing to stop the Iraq aggression in 2003, or to punish the aggressors, the Security Council soon gave its sanction to the U.S. occupation in a classic case of rewarding the villain. The Security Council also cooperates with the United States in supporting Israel’s illegal occupation and massive ethnic cleansing. And now it is helping prepare the ground for an Israeli-U.S. attack on Iran by imposing sanctions and Chapter VII demands on Iran (see "Hegemony and Appeasement: Setting Up the Next U.S.-Israeli Target (Iran) For Another 'Supreme International Crime'," Edward S. Herman and David Peterson, ZNet, January 27, 2007 ). The rule of law internationally is dead in the water.

It is also highly relevant that the Bush administration has been replacing the rule of law at home with the superior rights of the executive, attacking a string of constitutional protections of individual rights as well as the rights of legislatures and courts. This is not a case of blowback from the disregard of international law abroad; instead, the enhanced disregard abroad goes hand-in-hand with the shrinking adherence to law at home. They are mutually supportive and reinforcing. But the United States remains committed to the rule of law--when protesters at home violate local statutes, or black ghetto residents are caught using marijuana, or Iran does not abide by some intrusive ruling of the pathetic Security Council caving in to the U.S. program setting Iran up for a fresh U.S. aggression (see “Hegemony and Appeasement,” supra).

China’s Flexing Its Muscles

In the nuthouse, any action by the United States in the way of enhancing its military superiority is treated by the mainstream media with great objectivity. There might be a hint that it may cost a lot of money and doubts may be raised about its urgency and even whether it will work (if it is a new weapon). But it will not be treated as a possible serious threat to other countries, destabilizing and promising a renewed arms race, making war more likely, unaffordable in a world with much poverty and major problems that call for large resources--in short, insane. No. The media are objective, which means deeply irresponsible and contributing to lunacy. (Years ago the New York Times had an almost regular annual column by Seymour Melman in which he would list the foregone civil functions that were sacrificed by a comparable list of weapons, with price tags noted. This apparently was too painful--and enlightening--for the establishment to bear, and was terminated some years back.)

Even when the Bush administration announced an intent to make nuclear weapons part of the regular war arsenal and improve them, and an intent to prevent any challenges to U.S. military superiority by the possible use of force, and even naming countries, including China, as potential threats to U.S. dominance, the media barely reported these lunatic plans. They certainly never portray them as they should--as in a class with Mein Kampf and suffering from comparable lunacy.

On the other hand, as China has substantially increased its military budget in recent years, although from a very low initial level, this has aroused concern in the U.S. military and political establishment. China’s military budget has risen to one-seventh of that of the United States (in 2006, 66 versus 441 billion), so obviously this is a worrisome matter given that, as Donald Rumsfeld pointed out back in June 2005, “Since no nation threatens China, one must wonder: ‘Why this growing investment…these continuing robust deployments?’” Rumsfeld also mentioned that China seemed to be preparing to “project power” in its neighborhood.



Of course, China has no bases in North America, no fleets of warships around the North American coasts, and no military alliances with any country in North or South America. The United States has bases all around China, fleets of warships off the Chinese coast, has regular military exercises in that area, and has military alliances with many countries in Asia. In February 2005 it formalized new security ties with Japan that even announced a joint U.S.-Japanese call for a solution to issues in the Taiwan straits.

We are reaching here the limits of hypocrisy and the double standard. China is a threat because it is getting armed to the point where it might project power in its neighborhood, and maybe even defend itself sufficiently from some Global Godfather projecting power everywhere, allowing it to constrain the Godfather a bit. China is a threat to the Godfather only because of those possibilities--it cannot threaten the Godfather directly. On the other hand, the Godfather openly threatens China, has even listed it as a potential challenger who will not be permitted to rise to an effective challenging level, by implication through the use of force. The Godfather also threatens China by its military deployments and alliances. This is only a non-threat on the ludicrous ultra-chauvinist assumption that the Godfather is good, generous, peace-loving and without any seriously conflicting interests that might cause it to exercise force against China.

It is well-known to even casual observers that the rapid growth of China has forced it to look aggressively for independent oil supplies to meet its escalating needs, and it is clear that it will be competing with the United States in obtaining such supplies. In that competition the possession of overwhelming force on one side and serious weakness on the other could be costly to the weak. And in that competition the use of force might be helpful in obtaining privileged access to limited oil resources.

The China threat is an on-and-off-again phenomenon that has been on the upswing in recent years, clearly not based on any real security threat, but consistent with the imperial project of absolute domination. It is also a windfall for the military-industrial complex, and may be cultivated in substantial measure to provide it with growing and profitable markets and a raison-d’etre for its continued massive absorption of budget resources. Actual violence is constrained by the huge mutual dependence of the two economies, but who knows what the future holds if China keeps growing and arming itself, and if the rulers of the nuthouse need a diversion to mobilize the population and give them continued power to rule and loot?

Of course this all depends on whether the New York Times, its media associates, the intellectual class, and the Democrats, will go along with this Kafkasque pretence that the Chinese threaten us rather than that we threaten them, and allow the MIC and Pentagon to continue to absorb vast resources to kill on false pretenses—that is, to continue to make the United States a genuine global menace and nuthouse. It also depends on whether the U.S. public can finally arouse itself to fight for its own and global interests--and sanity. Given the ready mobilization against that not very dire Iran threat that we see moving forward today it is not easy to be optimistic.

Rule of law crippled

Editor's note: I am moving over to post at the other blog(also see new articles below).
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By Bruce Fein
THE WASHINGTON TIMES
Published February 27, 2007

The Great Writ of habeas corpus is to the rule of law what oxygen is to life.

The U.S. Court of Appeals imprudently crippled the writ last week in Lakhdar Boumediene v. Bush (Feb. 20). A divided three-judge panel declared suspected alien enemy combatants held indefinitely at Guantanamo Bay may not question their detentions in federal courts though petitions for writs of habeas corpus under the Military Commissions Act of 2006 (MCA). Writing for a 2-1 majority, Judge Raymond Randolph mistakenly endorsed a cramped interpretation of habeas corpus as though he were addressing a tax exemption in the Internal Revenue Code.

Absolute power corrupts absolutely. Accordingly, the Great Writ prevents the president from disappearing political opponents or the unpopular into dungeons based on his say-so alone, a frightening power that has earmarked despots from time immemorial. The writ enables detainees to require the president to establish the factual and legal foundations for their detentions before an independent judiciary.

The goal is justice, the end of civil society as James Madison explained in the Federalist Papers. The president may be inclined to detain bogus enemy combatants in the war against global terrorism to inflate public fear and to justify executive aggrandizements, for example, spying without judicial or legislative oversight in contravention of the Foreign Intelligence Surveillance Act of 1978. A former commandant and deputy commandant at Guantanamo Bay have averred that most of its detainees do not belong there.

The Great Writ does not threaten to release a single genuine enemy combatant. The burden to defeat the Great Writ is modest: plausible evidence (far short of proof beyond a reasonable doubt) that the detainee was implicated in active hostilities against the United States. In Rasul v. Bush (2004), the Supreme Court held the federal habeas corpus statute extended to aliens at Guantanamo. Two years later, Congress overruled Rasul in the MCA by suspending the Great Writ for alien enemy combatants detained anywhere. Its proponents were unable to cite a single habeas case either before or after Rasul that precipitated the release of an authentic terrorist. Such a case might be hypothesized with a fevered enough imagination. But the law would become "a ass, a idiot," in the words of Charles Dickens' Mr. Bumble, if required to answer jumbo speculations that never happen in the real world.

Article I, section 9, clause 2 of the Constitution (Suspension Clause) declares "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless in Cases of Rebellion or Invasion the public Safety may require it." Judge Randolph tacitly acknowledged in Boumediene that neither habeas exception justified the MCA, i.e., global terrorists have not invaded America. He insisted, however, that the Great Writ has no application to aliens detained outside the sovereignty of the United States; and, that Guantanamo Bay is under the sovereignty of Cuba, albeit subject to a perpetual United States lease.

The latter observation is risible. Fidel Castro has no more access or control over Guantanamo than he does over Washington, D.C., or Des Moines. If Mr. Castro formally abandoned sovereignty over Guantanamo tomorrow, nothing would change.

Judge Randolph maintained that a declaration by the political branches in the MCA that Guantanamo is not part of the United States is conclusive on the courts. But the dimensions of the Great Writ -- which defines what we are as a people -- should not be so easily contracted by semantic jugglery.

Judge Randolph observed that historically the Great Writ in Great Britain was withheld from remote islands, garrisons and dominions. Compliance with a writ from overseas would have been impractical because of time limitations for producing the detainee. But as Chief Justice John Marshall taught in McCulloch v. Maryland (1819), the Constitution was designed to endure for the ages and to be construed accordingly to achieve its purposes. Congress is empowered to create an Air Force, although the Constitution speaks only of armies and navies. The Fourth Amendment protects against indiscriminate government interceptions of e-mails and conversations, although its language speaks only of persons, houses, papers and effects. Similarly, the Great Writ should apply to suspected alien enemy combatants detained abroad unless compliance would be impractical or unworkable.

No civilized Constitution risks injustice for the sake of injustice, aside from the folly of creating poster children to boost al Qaeda's recruitments. The Supreme Court should grant review of Boumediene and reverse the appeals court.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

How long can BAE, Britain's biggest arms company, run a secret service and trump the armed forces?

The parallel universe of BAE: covert, dangerous and beyond the rule of law

How long can Britain's biggest arms company run a secret service and trump the armed forces in political influence?

George Monbiot
Tuesday February 13, 2007
The Guardian

There is a state within a state in the United Kingdom, a small but untouchable domain that appears to be subject to a different set of laws. We have heard quite a bit about it over the past two months, but hardly anyone knows just how far its writ runs. The state is BAE Systems, Britain's biggest arms company. It seems, among other advantages, to be able to run its own secret service.

This week, Campaign Against Arms Trade (CAAT) hopes to obtain a court order against BAE. The order would allow it to discover how the arms company obtained one of its confidential documents. CAAT instructed its lawyers, Leigh Day & Co, to seek a judicial review of the government's decision to drop the corruption case against BAE, which is alleged to have paid massive bribes to members of the Saudi royal family. Leigh Day sent CAAT an email containing advice on costs and tactics. The email ended up in the hands of the arms company.

How? Correspondence between a plaintiff and his lawyers couldn't be more private. The last people you would show it to are the defendants in the case. But somehow the letter found its way to BAE's offices.

The arms company argues that it was the unwitting and unwilling recipient of the email. So why does it refuse to tell CAAT who sent it? Why, far from assisting CAAT's attempt to explain this mystery, has it threatened the group with costs for seeking to reveal BAE's source?

CAAT has good reason to be suspicious. In 2003, the Sunday Times revealed that BAE had carried out a "widespread spying operation" on its critics. "Bank accounts were accessed, computer files downloaded and private correspondence with members of parliament and ministers secretly copied and passed on." The paper said the arms company made use of a network run by a former consultant for the Ministry of Defence called Evelyn Le Chene. "Le Chene recruited at least half a dozen agents to infiltrate CAAT's headquarters at Finsbury Park, north London, and a number of regional offices." They provided BAE with advanced intelligence on CAAT's campaign against the sale of its Hawk aircraft to the Suharto dictatorship in Indonesia. The arms company also obtained CAAT's membership list, its bank account details, the identity of its donors, its letters to ministers, even the contents of private diaries belonging to its staff.

After the story was published, CAAT asked a team of investigators to examine the messages sent from its offices. They found that one of the group's most senior members of staff, the national campaigns and events coordinator, had sent 181 emails to an unfamiliar address. Many of them contained extremely sensitive information.

The coordinator, Martin Hogbin, denied that he was an agent of Le Chene's. He claimed that the mysterious email address belonged to a former CAAT volunteer, and that he had been sending him this information because he might find it interesting.

The investigators contacted the former volunteer, who told them that he had not received any messages from Hogbin, and did not recognise the address. CAAT took the case to the United Kingdom's Information Commissioner, who found that the email address belonged to "a company with links to Evelyn Le Chene". Both Le Chene and Hogbin refused to assist the investigations. If it was true that Hogbin was working for Le Chene, it would be a tremendous coup for her and her clients. As campaigns and events coordinator, he knew more than anyone else about CAAT's plans. If BAE were to obtain and make use of such intelligence, it could anticipate and outmanoeuvre the Campaign's attempts to expose or embarrass it.

BAE's spying operations represent just one way in which the company looks like a parallel state. It also appears to enjoy crown immunity. Last August, this column suggested that the Saudi corruption case might be dropped, in order to protect a new order for 72 BAE jets. It was not a hard prediction to make - Saudi Arabia had made the new deal conditional on the abandonment of the case. But I could not have guessed that both the attorney general and the prime minister would make such a show of squashing the investigation. They seemed to go out of their way to demonstrate to BAE's clients that they would do whatever it took to protect the new order, even if it meant exposing themselves to allegations of collusion.

The prime minister has never taken such a risk on behalf of one of his departments, let alone his ministers or officials (witness how Lord Levy and Ruth Turner have been left to swing). There are just two friends for whom he will put his legacy on the line: George Bush and BAE.

In 2001, Blair overruled Clare Short and Gordon Brown to grant an export licence for BAE's sale of a military air-traffic control system to one of the world's poorest countries, Tanzania. The World Bank had pointed out that the contract was ridiculously expensive - Tanzania could have bought a better system elsewhere for a quarter of the price. In January the Guardian revealed that BAE Systems allegedly paid a $12m (£6.2m) "commission" to an agent who brokered the deal.

In 2005, Blair made a secret visit to Riyadh to expedite BAE's deal with the Saudi princes. He then sent both John Reid and Des Browne to clinch the order. Ministers in the UK have always acted as unpaid salesmen for the arms companies, but seldom has a prime minister muddied his hands this much. Blair pushed the order through by promising the Saudis that they could have the first 24 planes ahead of schedule. How? By selling them the jets already allotted to the RAF. BAE's interests, in other words, trump the requirements of our own armed forces.

Blair has also broken his government's pledge to publish the report by the National Audit Office on BAE's dealings in Saudi Arabia. It remains the only NAO report never to have been made public. We can only guess why the prime minister needs to protect it.

It could be argued, with some force, that this government has always had a special relationship with big business, rather like its special relationship with George Bush (it gets beaten up and thanks him for it). But the special favours it grants BAE are deeply resented by other corporations. After the suppression of the Saudi case, F&C Asset Management, a very large institutional investor, wrote to the government to complain that its decision undermined the rule of law and the predictability of the investment climate. Hermes, Britain's biggest pension fund, said that it threatened the UK's reputation as a leading financial centre, and the chairman of Anglo-American wrote that the abandonment of the case "damaged the reputation of Britain".

At what point does the government conclude that this company has got out of control? That it presents a danger to national interests, to the reputation of the prime minister, to the privacy and civil liberties of its opponents? Why does it appear to be above the law? For how much longer will it be permitted to run what looks like a parallel secret service? Of all the questions we might ask of our ministers, these are the least likely to be answered.

George Monbiot is the author of the bestselling books The Age of Consent: A Manifesto for a New World Order and Captive State: The Corporate Takeover of Britain, as well as the investigative travel books Poisoned Arrows, Amazon Watershed and No Man’s Land.

He has held visiting fellowships or professorships at the universities of Oxford (environmental policy), Bristol (philosophy), Keele (politics) and East London (environmental science). He is currently visiting professor of planning at Oxford Brookes University. In 1995 Nelson Mandela presented him with a United Nations Global 500 Award for outstanding environmental achievement. He has also won the Lloyds National Screenwriting Prize for his screenplay The Norwegian, a Sony Award for radio production, the Sir Peter Kent Award and the OneWorld National Press Award. A full archive of his articles, with references, is available at www.monbiot.com.

Impeachment Hearings for Bush & Co.? How about War Crimes Tribunals

Nov 27, 2996

By Heather Wokusch


While Bush administration members have made a sport of breaking the law, both domestically and internationally, their intransigence will come back to haunt - one way or another.

The Bush Doctrine of taking "the battle to the enemy," for example, is a direct repudiation of the United Nations Charter, which prohibits the use of international force unless in self-defense (after an armed attack across an international border) or related to a UN Security Council decision. And that explains why Bush's 2002 National Security Strategy makes a point to "protect Americans" from "the potential for investigations, inquiry, or prosecution" by the International Criminal Court "whose jurisdiction does not extend to Americans and which we do not accept."

The whole idea of the US being able to preemptively attack other nations was penned by White House lawyers two weeks after 9/11; former justice department lawyer John Yoo wrote memos for then-White House counsel Alberto Gonzales arguing that "no limits" stood in the way of Bush's ability to take military action and that "the president's decisions are for him alone and are unreviewable."

But giving someone like Bush "unreviewable" and unlimited military powers is reckless; the man can barely construct a sentence, let alone articulate a humane and effective foreign policy.
Besides, a "no limits" approach to foreign policy can't coexist with rule of law, which explains why just last week, US Homeland Security Secretary Michael Chertoff accused the United Nations and other world bodies of using international law "as a rhetorical weapon against us." Chertoff co-authored the infamous Patriot Act but is best known for his stunning incompetence regarding Katrina. If only he had been as eager to protect Americans from hurricanes as he is to protect them from global treaties...

Chertoff's view of international law as a threat to the US is supported by Rumsfeld's 2005 National Defense Strategy, which notes: "Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes and terrorism.

In other words, the Pentagon links "judicial processes" with "terrorism," and sees "judicial processes" as weakening the US "nation state." What kind of nonsense is that?
Now that Rumsfeld has "resigned" and Bush and Co. face their lame-duck years watching the war on terror implode, it's worth considering the aftermath of World War II, when the International Military Tribunal indicted and tried over 20 Nazi leaders for war crimes ranging from waging a war of aggression, killing civilians, mistreating prisoners and plundering property. How eerily familiar those charges seem today.

And how ominous that only weeks ago, German prosecutors began pursuing a criminal investigation into the alleged role of Rumsfeld, Attorney General Alberto Gonzales, former CIA director George Tenet and numerous other administration members regarding prisoner abuse at Abu Ghraib and Guantánamo.

Rumsfeld will lose his legal immunity when he ceases to be Defense Secretary, a fact which must weigh heavily on Bush and others. Unsurprisingly, the administration has taken pre-emptive action against future war crimes charges, including pushing through the scandalous Military Commissions Act, which provides them retroactive domestic protection from prosecution regarding prisoner abuse cases.

On the world stage, the administration's primary battleground for immunity has been the International Criminal Court (ICC), set up in 2002 to investigate and prosecute war crimes, crimes against humanity and genocide. Roughly 100 countries have ratified the ICC Statute, and over 40 others have signed it, but the Bush administration renounced the treaty on grounds it could lead to "frivolous or politically motivated prosecutions."

The administration has done everything in its power to enervate the ICC, including setting up bilateral "Article 98" agreements which arm-twist other countries into not prosecuting US nationals or foreign nationals working for the US. Over 100 nations, mainly poor and dependent on foreign aid, have signed the agreements, but many others have stood firm and lost US aid as a result, including Brazil, Peru and South Africa.

But such bribery will only go so far. The administration's "no limits" approach to foreign policy has alienated global allies, and in many parts of the world, Bush is regarded as a greater danger to world peace than North Korea's Kim Jong-il or Iran's Mahmoud Ahmadinejad. Continuing revelations of US war atrocities, such as the recent bombing of a Pakistani religious school in which 82 students died, only serve to fuel global outrage. It's hard to imagine administration members getting much sympathy in an international trial.

Bottom line, as calls for impeachment build at home, Bush might heed advice he once gave to Osama bin Laden: "you can run but you cannot hide."

Action Ideas:

1. A number of web sites provide information about human rights abuses linked to the so-called war on terror:

War Crimes Watch

Human Rights First

School of the Americas Watch

Cage Prisoners

2. As After Downing Street notes, this year a national coalition of organizations is making December 10 ''Human Rights and Impeachment Day.'' For related information on everything from Petitions to Dramatic Play Scripts and Yard Signs, check out the site's event resources.Note: Originally published: November 27, 2006

http://heatherwokusch.com/index.php?name=News&file=article&sid=96

Homeland Security Secretary: Rule of Law Threatens US

Chertoff says U.S. threatened by international law

By David Morgan
Reuters
Friday, November 17, 2006; 6:31 PM


WASHINGTON (Reuters) - A top Bush administration official on Friday said the European Union, the United Nations and other international entities increasingly are using international law to challenge U.S. powers to reject treaties and protect itself from attack.

"International law is being used as a rhetorical weapon against us," Homeland Security Secretary Michael Chertoff, a former federal appellate judge, said in a speech to the Federalist Society, a conservative policy group.

Chertoff cited members of the European Parliament in particular as harboring an "increasingly activist, left-wing and even elitist philosophy of law" at odds with American practices and interests.

But he said the same pattern could be seen in the policies of the United Nations and other international bodies.

"What we see here is a vision of international law that if taken aggressively would literally strike at the heart of some of our basic fundamental principals -- separation of powers, respect for the Senate's ability to ratify treaties and ... reject treaties," Chertoff said.

President George W. Bush's administration has been repeatedly criticized by rights groups and foreign governments, including some allies, over some of the tactics it has used in Washington's war on terrorism since the September 11 attacks.

Critics have aimed at Bush's policies such as the indefinite detention of foreign terrorism suspects at the Guantanamo Bay prison in Cuba.

Chertoff said the U.S. Supreme Court decision on Guantanamo prisoner Salim Ahmed Hamdan that required the United States to treat detainees under Geneva Conventions standards showed international law's entry into the U.S. domain.

He also pointed to negotiations leading up to last month's interim agreement between the United States and the European Union on sharing personal information about trans-Atlantic airline passengers.

The Bush administration sought addresses, credit card details, phone numbers and other details for U.S.-bound European air passengers as a way to determine whether any should be turned back from entering the United States as a security risk.

"Some in the European Parliament argued that the fact the information was derived from Europeans coming to the U.S. meant that we should be forced in the United States to let Europe supervise and set the terms of how we make use of that information," Chertoff said.

"Fortunately, we resolved it in a way that does address the principal concerns that we have," he added.

Chertoff also cited press reports of European privacy activists trying to constrain U.S. use of financial information obtained in Washington's war on terrorism.

"There are increasing efforts to control our use of information in our own country," he said.

Some EU activists, he said, believe national sovereignty is weakening under an avalanche of international laws.

"It (is) a chilling vision of where we could go, given the current developments in international and transnational law," Chertoff said.

http://www.washingtonpost.com/wp-dyn/content/article/2006/11/17/AR2006111701395.html