“The First Thing We Do, Let Us First Torture All the Lawyers”

Paraphrased line from Shakespeare’s King Henry VI [Act IV, Scene 2]
-“The first thing we do, Let us kill all the lawyers.”

It seems that the foremost champions of the use of inhumane torture by CIA operatives and US military personnel against "enemy combatant" detainees are the chief legal officers of the United States Government. Recently disclosed memos from top US Department of Justice lawyers Jay Bybee and John Yoo specifically justify and declare that it is a legal practice to torture detainees. These legal memoranda further advise CIA operatives how to avoid prosecution under the Federal Anti-Torture Act. They represent the stark documentation of the moral decay and the depth of the ideological malaise within the Bush Administration.

In her new book, "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals," New Yorker magazine investigative reporter Jane Mayer reports that following the 9/11 attack on the World Trade Center, "For the first time in its history, the United States formally sanctioned government officials to physically and psychologically torment US-held detainees, making torture the official law of the land in all but name." The late American historian Arthur Schlesinger Jr., she says, told her that "the Bush administration's extralegal counterterrorism program presented the most dramatic, sustained and radical challenge to the rule of law in American history." Over lunch in 2006, the year before Schlesinger died, he said, "No position taken had done more damage to the American reputation in the world - ever."

The Bybee – Yoo memos declare that harsh interrogation, up to the point of organ failure, would not qualify as “torture” that violates US or International laws [Bybee/Yoo I]. The follow-up memorandum [Bybee/Yoo Memo II] addresses a list of specific forms of torture that they declare to be legal, such as waterboarding [simulated drowning], sleep deprivation, prolonged exposure to cold or heat and use of dogs for intimidation. [Note that the use of dogs, like the alleged practice of desecrating the Koran, has additional weight because they are culturally and religiously offensive acts.] The government lawyers did caution that the harsh treatment, to ensure its legality, should take place outside the US borders. It is not clear whether this twist was added to make the activity less likely to be discovered, or whether they believed that the actions by US operatives against detainees in their control on foreign soil made a legal difference. Sen. Durbin of Illinois subsequently introduced an amendment to the Anti-Torture Act that eliminated any doubt about the distinction.

The practices in question emanate from documented practices used by the communist Chinese interrogators to torture American Prisoners in 1957 and to coerce false confessions from their captives. The effects of the practices have been studied and shown to produce inherently unreliable testimony as well as to leave potentially permanent physical and emotional damage to the captives subjected to such interrogation. These practices have been outlawed by the Geneva Conventions and denounced by every major human rights organization on the planet. So the Bush Administration lawyers have taken torture practices used by our past enemies against our military personnel and sought to legitimize their use in current field interrogation operations and detention facilities.

The argument now being advanced is that the CIA operatives are shielded from prosecution for their actions because they can claim “good faith reliance” upon the advice of legal counsel and upon orders from superiors stemming from the Justice Department memoranda. The CIA set up “black sites” to detain and torture prisoners in Poland, Pakistan and other remote locations apparently in reliance upon the "extraterritorial activities" caveat in the advice memoranda. The argument was even raised that treatment of prisoners at Guantanamo Bay [a US controlled enclave in Cuba] was legal because it was not done on American soil. Legal scholars have resoundingly discredited the definitions of torture, the factual assumptions and the legal analysis of the memoranda. The advice is not only legally untenable, it is morally repugnant. Yet it may be the best defense available to CIA and military operatives who routinely engaged in “harsh interrogation” practices against detainees if they are prosecuted for war crimes.

Considering the debate about the impact on detainees and the effectiveness of the techniques, would it not be most appropriate to subject the attorneys advancing such practices to a round of “harsh interrogation?” After undergoing such treatment, these lawyers could speak with confidence and personal conviction that the actions that they seek to sanction as legal interrogation are not unreasonable or inhumane. If Mr. Bybee and Mr. Yoo are so sure that the practices are within the letter and spirit of the laws and principles of US Justice, a test to see whether they could be induced to offer up confessions of acts they did not actually commit through use of the practices would seem fitting. What better way to display confidence in both the legal reasoning and the moral rectitude of their advice memoranda.

Since neither lawyer is likely to volunteer for such a reasonable trial to test their conviction in past advice, we might visit another flaw in their advice and the defense strategy of reliance on that advice. Consider the hypothetical: If a lawyer opines that robbing a bank is a justifiable redistribution of assets, Would a person reading the advice memorandum reasonably expect to be exonerated for armed robbery based upon his reliance on such advice? Would shooting the guard because the guard interfered with the goal of redistributing the assets likewise be excused? Why then should CIA operatives believe that their reliance upon memoranda and "legal advice" that fly in the face of the express prohibitions of US statutes and international law and practices that have been accepted for decades would excuse their inhumane treatment of detainees?

Going forward, the best advice would be to require any other government lawyer who seeks to rationalize of justify such practices in advice to intelligence or military personnel to undergo the treatment that they seek to endorse. If after being subjected to the treatment they still believe that the practices should be permitted, let them then sign the advice memoranda.

When Accomplishing the Stated Mission is not “Victory.”

In recent weeks, Britain’s Prime Minister, Gordon Brown has endorsed the same proposed timetable for withdrawal of US combat troops from Iraq as the one being advanced by US Presidential candidate Barack Obama. Likewise, Iraqi Prime Minister Nouri Al Maliki publicly endorsed the 16 Month timetable plan until a scorching communication from the White House led him to backtrack a bit from what appeared to be an endorsement of Obama. A number of high profile Veterans organizations, including veterans of the Iraq and Afghanistan conflicts have called for a timetable for withdrawal instead of the vague and indefinite proposals by Bush and McCain.

Adding to the growing list of opinion leaders that have endorsed a plan for withdrawal of US troops from Iraq, a former Bush “puppet” has testified before Congress that a 16 month timetable for US withdrawal is appropriate. Ayad Allawi had served as a Bush Administration installed Prime Minister of Iraq from June 2004 to April 2005. His latest pronouncement, in light of his relationship with the Bush Administration, could most charitably be described as “biting the hand that fed him.” Yet even this Bush loyalist sees that a planned timetable for the reduction of US forces is necessary. Allawi stated that the "express wishes of the Iraqi people should take precedence" over any designs or intentions of the American government.

The key question is not why these leaders are endorsing the “Obama proposal” or whether they are, in fact, endorsing Obama. Barack Obama certainly was not the first leader to propose a phased withdrawal and redeployment of US combat forces. The key question would be why are so many leaders on board with a rational strategy for phased and orderly withdrawal of US troops, when the current President and the candidate elect of his party are standing in staunch opposition to the plan? The great majority of Iraqis are calling for US withdrawal. The international community supports withdrawal of US combat troops and the soldiers who have actually been on the ground in Iraq all see that it is time for the US to leave. What then is the rational or philosophical basis for insisting on the establishment of a permanent presence of US troops in Iraq?

If the stated purposes for our presence have been achieved, why do Bush and McCain insist that we must remain indefinitely? There seems to be an elusive definition of the “mission” that the US has in Iraq. McCain claims that it is imperative that the US press on to “victory” in Iraq. Never mind that the invasion of the country was a mistake based upon falsehoods and deception by the Bush Administration. However, the definition of “victory” also seems to be slippery. If, as McCain claims, the “surge” has worked and violence is down, then it would seem that victory has been achieved. If the Iraqi people and its representatives state that they are capable and ready to undertake their own internal security issues, has the mission not been accomplished? Why then should the US taxpayers continue to spend billions of dollars for the extended occupation of a country that no longer needs or desires the presence of US troops?

Exactly WHO and WHAT INTERESTS are Bush and McCain advancing? Clearly they are not representing the interests of the American people or the Iraqi people.

Quizas ... Quizas ... Quizas – Indeed

In a prior article, the quandary about finally ending the travesty of the US Military Guantanamo Bay [GITMO] Prison Camp was put forward. Perhaps, indeed! Consider this recent news release:

June 23, 2008 - Washington, DC - A federal appeals court for the first time has rejected the military's designation of a Guantanamo detainee as an enemy combatant.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit overturned as "invalid" a military tribunal's conclusion that prisoner Huzaifa Parhat is an enemy combatant.

The court directed the Pentagon either to release or transfer Parhat or to hold a new tribunal hearing "consistent with the court's opinion."

To put a finer point on the subject, the US military had recommended the release of this prisoner as a possible mistaken imprisonment as early as 2003. Yet the man has remained in jail for over six years because of the arrogance of the Bush Administration and its failure to admit that its policies have been wrong, or at least incorrectly applied in at least some cases. By the standards and “logic” apparently applied by the military authorities under the direction of the Bush Administration, any person who has attended training at the US School of the Americas could or should be held in prison indefinitely and labeled an “enemy combatant.” Parhat had attended a paramilitary training camp because of his desire to support a group that opposes China’s domination of a traditional ethnic region and its people –Uighurs. Parhat claimed he did not know who or what group ultimately funded the camp, but that he never was a member or even involved in any way with the Taliban or the struggle in Afghanistan. He was in the wrong place at the wrong time, and the US military knew this. The evidence showed this to be true. Yet they held him anyway.

Now the more proper role of the US court system has been partially restored and Parhat had the chance to appeal his denomination as “enemy combatant.” the Federal court ruled that the designation was invalid after reviewing the evidence. This process has done absolutely no violence to the “national security” of the United States. It has, however, shown that abuses of Constitutional and international human rights can be addressed and corrected, if the court system is allowed to function as it was intended.

Perhaps the country will begin to see and believe that you cannot save a democracy or a country by destroying or ignoring the very fundamental principles upon which it was founded. Perhaps the sad saga of GITMO can move toward an ending, with the help and not so gentle prodding of the US courts applying principles of the Constitution.

Perhaps GITMO Can Finally Be Closed

Perhaps the prison camp at Guantanamo Bay [GITMO] can finally be closed. Perhaps we can begin to heal that festering sore on the conscience of a nation founded upon the principle that a megalomaniacal despot cannot arbitrarily imprison people. The US Constitution, written centuries ago, incorporated what seemed to most Americans (until about five years ago) to be a very simple and basic principle. To justify imprisoning someone, the government must put forward at least some evidence that (1) the person is actually the person they intended to imprison, and (2) that there are at least some credible grounds for detaining the person. A dangerous person can, of course, be held in custody before and until trial. However, there must be some charges asserted and it is reasonable to allow the detainee to test the credibility of those charges to ascertain whether there is at least probable cause to believe that they can be proven. Even reciting these very fundamental concepts seems a bit simplistic and pedantic. However, for the past five years, the Bush Administration has suspended these fundamental Constitutional principles. That course of action has undercut the moral authority with which the United States had been able to negotiate with other countries and leaders about basic human rights.

The Bush Administration argues that because the detainees are not US citizens and are being held on soil that is not US [although there is no dispute that the location is under US control], the actions are not subject to Constitutional protections. The argument has been purportedly bolstered by doubtful claims that “National Security” may be put at risk if these detainees were allowed to contest their imprisonment. Indeed the Bush Administration argues that even allowing the detainees the right to legal counsel or to notify their families that they are alive would threaten National Security.

A similar argument was tried in an attempt to nullify the restrictions on torture incorporated in the Geneva Conventions. But the whole idea of basing a policy or a doctrine upon characterizing people as less than human beings is a slippery slope that leads to destruction of principled government and morality. Slavery and torture are the end products of such faulty reasoning. The rule of law assumes that some people are capable of doing very bad things. Their alleged actions do not negate their humanity, and they can be subjected to lengthy and severe punishment if proven guilty of serious crimes, including murder and terrorism.

The Supreme Court of the United States of America recently ruled that the rule of Habeas Corpus, the right of the imprisoned to test the basis for their detention, is still viable. The Court ruled that a President does not have the discretion of the power to supersede the US Constitution. Prior rulings by the Supreme Court were half measures that lacked the courage and definitive force of this last one. Holding that federal statutes gave prisoners a right to a fair trial only led to a GOP controlled Congress amending those statutes. However, the latest decision based its authority on the Constitution itself. There is a legal principle that a creation of statute or law [the Constitution being the highest governing national law] cannot rise above the authority from which it derives its power and existence. Simply put, the Presidency is a constitutional office. Therefore the President has no power to override the limits of the US Constitution.

However, that Constitutional limitation on Presidential power is precisely what Bush policy disregards. Bush and Cheney assert that in times of “emergency” the President has the ability to suspend the constitution. This argument is put forward despite the fact that the “emergency” is a manufactured crisis based upon an unnecessary and probably illegal invasion of Iraq. Rejecting the Bush contention, Justice Kennedy declared: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

Now that the Supreme Court has ruled that the detainees have the basic right to challenge the reason for their imprisonment, the US government has the ironic opportunity to restore some of its integrity and reputation. By forcing the government to put forth evidence that the personas being jailed for years really warrant incarceration, the Supreme Court has compelled the Bush administration to establish some measure of integrity. The acknowledgment and acceptance of international social and legal conventions of humane treatment of prisoners does no weaken a nation or threaten national security. To the contrary, it establishes a foundation of moral and legal authority that supports the imposition of justice and punishment upon people who violate legal and societal norms. No one would attempt to justify a vicious terrorist act by a GITMO prisoner. However, punishing the person without ever advancing charges based upon probable cause and offering proof that the person is guilty is inhumane and un-American. Perhaps we can now put a stop to this odious practice by the Bush Administration and allow the rule of law and principles of justice work as they were intended.

George W. Bush Still Does Not “Get It.”

After all of this time and experience, George W. Bush still does not “get it.” He has reacted with petulance that his so-called “generous” offer of incentives to Iran for stopping uranium enrichment were rejected out of hand. The President’s ego refuses to allow him to see the world as most others do. What most of us would expect to happen based upon logic and common sense is still a surprise to Bush. The real damage that the Bush Administration has done to the US prestige is something that the President is obviously unable to see or accept. No one has faith or trust in the US when under the leadership of George W. Bush. They respect the US people, but reject the US government.

After Bush and Cheney have spent months, if not years, sounding a constant drumbeat of threats to bomb and invade Iran, does anyone really wonder why Iran would be resistant to any proposal by the Bush Administration? After the unnecessary invasion of Iraq and the extended occupation based upon what Bush now calls an “invitation” by the Iraqi people, does anyone wonder why Iran would be suspicious of any overtures of friendly assistance from Bush? After the blatant disregard of national sovereignty by the Bush Administration toward Iraq, including the move to rewrite the Iraqi Constitution and shove it down the throats of Iraqi citizens, is there really any surprise that Tehran would rebuff a “collaborative” agreement that would bring US advisors into Iran to supervise any part of its national energy program?

The question about uranium enrichment is a difficult one. Perhaps Iran does have some designs on the future development of weapons grade uranium, which experts put at least 5 years in the future in the most aggressive time horizon. But the history of lies and distortion by the Bush Administration, and the manipulation of intelligence to support a covert agenda have resulted in a subterranean level of credibility for Bush assertions and characterizations about the status and intentions of Iran. Like the little boy who foolishly cried wolf, even if his assertions have some merit they are not likely to be heard or believed when coming from his mouth.

In a less hostile environment, less than the one created and being maintained by Bush and Cheney toward Iran, the rationale that Iran is developing nuclear energy sources to supply local consumption needs and to conserve oil would seem a plausible and intelligent national policy. The nasty political environment being advanced by Bush would also cause a prudent government in Iran to keep options open for development of any defensive or offensive military weapon. Simply put, if any government feels that it is being threatened it will be inclined to turn plowshares into swords. But in a less threatening environment it will be more inclined to turn swords into plowshares. In this regard, Bush’s own arrogance is a primary motivating cause of the perceived need to intervene in Iraq to halt uranium enrichment. But that arrogance also ignores the fact that EVERY country has sovereign rights, and that the US has no right to dictate internal policy for another country as Bush seems to want to do.

Any major diplomatic initiative made by the current Administration is likely to be met with the same level of suspicion and lukewarm reception as was the proposal to Iran. Regardless of the merits of any proposal, the simple fact is that most leaders know that they cannot trust George W. Bush. As an international statesman or leader he is an abject failure. They also know that Bush will be out of office in January, only 6 months away, and that any real progress toward resolution of any existing problems will have to wait until Bush is out of the picture. Having almost completely destroyed the credibility of the US in international relations, Bush should simply go away quietly and allow his successors the opportunity to try to repair the damage

Untruth: “Old News is No News”

The recent Report from the senate Intelligence Committee includes a stinging rebuke of the Bush Administration deception in leading [goading] the country into an unnecessary invasion of Iraq. Many examples of abuse of authority and deliberate distortion or fabrication of justifications for the invasion that were unsupported by available intelligence are detailed in the report. This is yet another “official” report to document existing evidence of malfeasance in office on the part of the George W. Bush and Dick Cheney and their administration. The Senate Intelligence Committee Report does not, however, raise the issue of what consequences should arise from such dangerous and fraudulent conduct that has cost the US thousands of lives and Billions of dollars.

To be sure, the GOP and apologists will dismiss the report[1] as inconsequential “old news” and they will in some way be correct. Yet the Holocaust is also “old news” and news that is still based upon horrible facts that the public needs to be reminded about, lest it be allowed to reoccur. The patent disrespect for the American people and disregard for their oath of office deserve public mention and further discussion. This is particularly true in light of recent GOP presidential candidate John McCain’s pronouncements that he has always supported the decision to invade Iraq and would do it over again if presented the choice. The public needs to be alerted and to make an informed decision about who will occupy the White House after Bush leaves.

Consider also that Sen. McCain recently stated publicly that he too would suspend Constitutional rights of free speech and privacy to spy on Americans as Bush has done under the guise of “National Security” that was hyped because of the threat of terrorism also “marketed” to the public as justification for the Iraq invasion. So the public should consider not only the risk of another wrongheaded and catastrophic decision like the invasion of Iraq from the new President, but also the myriad of related and consequential decisions and actions that would flow from such a mindset.

Discussion of the failures in the run up to the Iraq invasion also must include analysis of why the “loyal opposition” failed to respond in any meaningful way. It is true that “you can fool some of the people some of the time” especially when the people have been cowed by fear mongering. However, the failure of Democratic elected officials to closely scrutinize the decision to invade and to question the veracity of the so-called intelligence evidence used by Bush to justify the alleged threat warrants further scrutiny. Why were so few willing to display the courage to say that “the Emperor has no clothes” as the innocent little boy shouted in the story? Cowardice based upon fear that their patriotism might be challenged or that campaign donations might fall off is not an admirable quality in our elected leaders, whether GOP or Democrat. What qualities will the electorate demand in the fall general election for representatives and senators being sent [or returned] to Congress?

Just because the issues and the facts are not “new” does not make them any less important or make discussion of them any less merited. Those who fail to learn the lessons of history are doomed to repeat the mistakes. And we simply cannot afford to make mistakes of this magnitude again. In this regard, “old news” is definitely worth our attention.

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[1] "The report released today was a waste of committee time and resources," said a conclusion signed by Sen. Christopher S. Bond of Missouri, the ranking Republican on the committee, and three of his colleagues. Bond accused Democrats of "a partisan agenda" and said they had "cherry-picked information and distorted policymakers' statements."

The document was approved in April on a 10-5 vote, with two of the committee's seven Republicans siding with Democrats to endorse its release.

Those two, Sens. Chuck Hagel of Nebraska and Olympia J. Snowe of Maine, said in a statement Thursday that they had some misgivings but hoped future administrations would "learn from this comprehensive review and avoid making similar mistakes."

Wanting vs. Deserving to Win

It can be gratifying when opinions or advice one has given proves out to be accurate. Beyond the cliché and impolitic attitude of saying “I told you so,” let’s look at the reasons why the opinion held merit. Specifically, my prior opinion was that Hilary Clinton should be concerned not just with whether she could win, but how she could win. To use another cliché to explain the point, we could look at the “Rocky” films. Even when the star prizefighter Rocky Balboa was getting the crap pounded out of him in the ring, he was perceived as a winner because of his character and how he engaged in the battle. Later, when he pulled through from underdog status to win the championship, the audience was gratified by their confidence that the spirit of a champion would prevail.

The case of Hilary Clinton is different. The tactics that her campaign has chosen and the way that she has engaged in her battle for the Democratic Presidential nomination have not inspired confidence in either independent observers or in veteran Democratic Party officials – the “Super Delegates.” As noted in a recent MSNBC commentary, Hilary Clinton began the campaign with the built-in advantage of support among the party insiders of the Democratic National Committee [DNC]. That advantage began to erode almost immediately as the Clinton campaign stuck to worn out and often unsubstantiated slogans that failed to resonate with a voting public famished for change from the status quo. The advantage of being an “establishment” candidate and a successor to the Bill Clinton legacy was a double-edged sword. Hilary seemed incapable of wielding that weapon effectively. The result was a string of 10 losses in important early primaries.

The presumptive strong support from the Party veterans and insiders changed to tepid patience as their anointed leader continually lost ground to a candidate that Clinton said lacked experience and could not be elected. The Clinton Legacy of hope [remember Bill’s campaign theme song of “don’t stop dreaming about tomorrow”?] turned to a Hilary campaign of pessimism and derogation. In desperation to win at all costs, Hilary forgot that how you wage the war is equally important to the outcome of a single battle. Whether a candidate deserves to win is as important as whether the results show a victory. This should have been clear to Clinton after the disgraceful victory of George W. Bush in which a very large part of the voting public still believes that the election was stolen or handed to him by Supreme Court that was motivated more by politics than jurisprudence. The hard lesson the Bush Administration has taught over the past 8 years is that if a candidate will lie and cheat to win, he will probably continue to lie and cheat after he wins.

Over the past month, Clinton has played the reverse race card and tried to win by destroying the other candidate more than by extolling her own virtues and why she deserves to be the Democratic nominee. She has tried to portray Obama as “elitist” and out of touch with the poor and middle class white voters, while lending her own campaign more than $10 million of her own wealth. Playing on the racism and fears of beleaguered whites helped Clinton in the battles of Pennsylvania and, to a lesser degree, in Indiana. But Obama still won in the major population centers where voters tend to be more informed and more sophisticated [less easily duped]. Like it or not, voters tend to personalize candidacies. While it would be wonderful if more focus were placed on issues, many voters decide on the basis of whether they view the character of the candidate to be aligned with their own. Simply put, many voters rejected the racist notion that a Black Man could not be elected President, as the Clinton message subtly suggested, and refused to identify with the politics of division and negativism.

To be sure, there are many fine personal qualities that Hilary Clinton possesses that could make her a President far superior to the incumbent. Perhaps her reliance upon the Democratic Party “establishment” tools and consultants has been her greatest mistake. Clearly a person running for and serving as President cannot know or do everything. The choice of advisors and support personnel becomes as much a test of character for the candidate as the display of personal characteristics. Yet Clinton began with and has stuck with the “advice” of these high priced Beltway "experts" despite the evident flaws in their thinking and their ability to develop new strategies to reshape or replace failed strategies. [Does this sound a bit like GWB?] It is very possible that the positive qualities of Hilary Clinton have been overshadowed by the mistakes of her “handlers.” However, the decision to stick with them is a strategy for which Hilary is ultimately accountable and responsible.

The effect of this strategy has been a weakening of support for Clinton and a continuous stream of Super Delegates moving into the Obama column. These delegates are coming not just from the uncommitted positions, but many defections from the Clinton column. Clinton has done us a service by showing that the negative and malicious campaign practices of smear and deceit that the GOP are quite likely to use have failed to bring down the Obama candidacy. It has not, however, gained Hilary Clinton any advantage in her own quest for the nomination. By choosing to fight an unprincipled battle strategy based upon negativism rather than hope, Clinton has won a couple of battles and lost the war. She has trumpeted the message that she wants to be the Democratic nominee, but failed to deliver a convincing message regarding why she deserves to be that nominee.

The Crippled Fourth Estate

The charge is not new from this quarter that one of the most tragic failures of the past 5-6 years has been the abdication of responsibility on the part of the media to perform its essential function in a successful democracy. The failure has been systemic and has not only allowed but enabled the decline in the quality of democracy as well as the diminution in the quality of life for United States of America citizens. The function of the fourth estate is to foster and promote a full and open discussion of information and ideas so that a reasonably informed body politic can make decisions on how it is to be governed and how society will operate. When the fundamental principles upon which the society has functioned are challenged, a free and functioning press will expose the problem so that the public can decide collectively how to deal with the problem.

This process has failed miserably in the past years in which the Bush Administration has broken virtually every tenet and moral principle upon which the Republic was founded. The fundamental principles of jurisprudence, including the Fourth Amendment prohibiting unreasonable search and seizure, the Fifth Amendment prohibiting forced self incrimination, First Amendment involving privacy and rights of free speech and association and the due process right of Habeas Corpus have been abridged or denied. The press has failed to aggressively expose each of these transgressions and failed to challenge the Administration’s efforts to conceal and suppress the information that existing laws require to be made public.

The principle that the Armed Forces are to be deployed only for legitimate purposes to protect and defend the citizens of the United States and its allies has been violated by the unilateral invasion of Iraq when no actual threat to the United States or any ally existed. The country is ensnared in a fiasco that has lasted longer than World War II and has cost the country more financial resources than any war in the history of the nation. More than 4,000 service members have died, and the number rises each month. Estimates of over 300,000 service members have suffered physical or serious mental impairment as a result of the continuing conflict. All this has occurred without clear legal justification of the invasion or the grounds for continued presence. The Bush Administration is attempting to bypass Congress and to negotiate agreements that would obligate the United States to maintain a presence in Iraq after Bush leaves office. Not until recently have such under-the-table dealings been exposed by the press.

The obligation of the Executive Branch and the responsibility of Congress to oversee the public fisc have been largely abandoned during the past 5-6 years. Reports now coming to light prove that the US Government has been defrauded of billions of dollars by contractors who took the money and failed to perform the contract obligations. Many of those contracts were given to political cronies of the Bush Administration without competitive bidding. Rampant abuse of the supply systems has been revealed with supplies intended for the troops being diverted and sold on the black market. In one recent revelation, major supply items were diverted and returned to the US for sale on E-Bay. During this time, Congress has repeatedly opened the national “checkbook” and repeatedly poured billions of dollars more into this sewer of corruption without the most basic functions of audit and oversight. Whether the public would support this type of massive corruption if given the objective facts is unknown, because the facts have been largely hidden or obscured.

Blogs like this one, which lack the resources and exposure to effectively inform the public, are poor substitutes to supply the public need for learning about and debating the problems that are threatening the democracy of the United States. The traditional “Fourth Estate” is now concentrated in the hands of the large corporate interests, many of which are allied with the corporate cronies that are profiting from the pervasive corruption. Even the New York Times organization has reluctantly acknowledged its failure to aggressively follow and expose stories of fraud and corruption by the Bush Administration. Fox news is little more than a press and publicity agent for the Bush Administration and cannot be relied upon for balanced news. The major networks have been converted into “infotainment” organizations where spin and shock value are far more important than truth and reliability. And the greatest tragedy seems to be that there is no end in sight for the deterioration and collapse of one of the fundamental pillars of a free and democratic society – a free and independent press.

Democratic Nomination - At What Price?

One has to admire the grit and determination shown by Hilary Clinton in her quest for the Democratic presidential nomination. A nagging question that must be considered regarding her value judgment is the price that she is willing to pay for that personal ambition. There is an old cliché about winning the battle and losing the war that has added relevance now. Many have questioned whether Clinton will do anything and fight for the nomination at any cost, including the division of the Democratic base that could risk losing the general election in November. In this regard, HOW you win is as important as WHETHER you win. Doubt about the Clinton campaign’s grasp of this important principle is evident. The proof is no more apparent than in her campaign’s management of the race issue.

The fact that one Democratic candidate is a woman and the other is non-white has long been recognized as an issue that the GOP might seek to exploit in the general election. As such, the primary and caucus contests have been a useful process to test the receptivity of the public to a “non-traditional” candidate, i.e. someone who is not a white male. At this point, however, the huge turnout and the astounding support that both candidates have received suggest that the United States could elect either a woman or a Black.

The current contest has gone beyond that question and taken a distinctly negative turn. The Clinton campaign seems to be playing the reverse race card in a way that potentially threatens Democratic Party cohesion necessary for the party to win the November election. Party officials and veterans have recently expressed concern about the divisive nature of the continuing contest. Conventional political wisdom suggests that it is better to seek to distinguish candidates within the same party on issues that are not fundamentally divisive and in ways that do not give substantial advantage to the other party’s candidacy. Obviously, such divisions can more easily be healed and permit the entire party to unite behind the candidate ultimately selected. Division on fundamental issues tends to cause the “losing” faction to sit out the campaign for the general election. For example, differences over ways to handle health care are issues that can differentiate without permanently dividing the party. Promoting division among the party electorate on the basis of race or gender, on the other hand, could cause permanent rifts far more difficult to heal.

Unfortunately, the Clinton campaign seems to be playing the negative side of race while we have not seen Obama’s campaign play the gender card. This is a bit surprising in light of the goodwill that Clinton began with as a result of the legacy of her husband’s Presidency. Yet Clinton’s campaign has promoted her candidacy among poor uneducated whites and on several occasions deliberately injected race into the public debate when it was unhealthy to do so. When the potentially harmful comments by Clinton supporters [e.g. Geraldine Ferraro] were made public, it seemed that Obama left Clinton alone to deal with the issue. On the other hand, when issues like the Rev. Wright commentary have surfaced, Clinton’s campaign has quickly and repeatedly jumped on the negative bandwagon. Similarly, Clinton tried to turn a candid reflection by Obama about disaffection by the poor and undereducated into a racial issue.

Obama’s comment about bitterness leading to “guns and religion” was not a inherently race based reflection, although it did note a class distinction [one that is real]. It is equally true of black poor constituents as it is of poor whites. The fact remains true of both groups that when they face difficult challenges that they can neither understand nor control, they tend to cling to familiar comforts. Finding a message that speaks effectively to them is a real problem for Clinton and for Obama. Unfortunately, the Clinton campaign seems to have opted for a negative “message” to poor whites suggesting that a Black candidate cannot understand their troubled situation.

The “message” that is either being intentionally broadcast or recklessly disseminated by Clinton’s campaign is that Obama should step aside, despite his lead in popular and delegate counts, and let allow the nomination to go to Clinton because the country is not ready to accept a Black president. It implies that there is a large segment of ignorant and bigoted voters who would ignore the leadership qualities of Obama and ignore their personal best interests simply because of distrust of the candidate’s skin color. For Clinton to suggest at this point that she is more “electable” than Obama is just “code” for the message. Clinton’s “experience” claim has been largely debunked. It has been distilled to the essence stated by a woman responding to a pollster in Indiana who stated that one reason for favoring Clinton is that “she has her husband to help her.” In short, Hilary does not have substantial advantage in terms of personal experience. Her candidacy can make an “experience” claim only if viewed as the candidacy of Hilary and Bill Clinton. In fact, both candidates have substantial political experience and neither has a distinct advantage in that regard.

The press, of course, will be inclined to play up the racial divide because it is salacious and because it may favor a GOP base with which many media owners are allied. The campaigns of the candidates should recognize that they are playing a very dangerous game. The history of the United States is complex and difficult with regard to race relations. There remains difficulty even talking openly about the manifest problem. Lyndon B. Johnson was not always a stalwart advocate of the rights of minorities. At a crucial point in history, however, he had the courage to stand against his traditional southern [and typically bigoted] power base to promote passage of the Civil Right Act. It takes courage to choose the difficult path over the easier or more convenient one. Playing to fear, ignorance and bigotry is the easy and convenient path, but it is neither courageous nor in the best interests of the country.

The question of the moment is whether Clinton remains willing to exploit the racial divide at a time when the country so desperately needs healing, change and unification. Is Clinton willing to stand up publicly and counter the ugly and negative tone that seems to be infused in her candidacy in order to display the necessary courage? Would she rather choose to stand by and allow that message to be promoted by her subordinates in order to win the nomination without regard to the potential cost to the party and to the country? One might argue that taking a very public stand would strengthen her chances of winning the nomination more than failing to do so. But win or lose, her play to racial bigotry will seriously impair the chances of the Democratic Party victory in November.

Massive Retaliation or Massive Desperation? – By Hilary Clinton

While not a fan of “sound bite” debate, the phrase used by Presidential hopeful Barack Obama to characterize Hilary Clinton, his opponent for the nomination, resonates with me. Obama referred to Clinton as the “say anything” candidate. He was responding to or reflecting upon the increasingly shrill and slimy rhetoric used by the Clinton campaign to gain or try to maintain a lead in the polls going into the Pennsylvania primary contest.

Most recently, Clinton went on national TV to pander to talking head Keith Olberman and elaborate on her remarks during the last debate. Responding to a hypothetical question during the debate, Clinton said that she would use "massive retaliation" in the event of an Iranian attack on Israel. Now keep in mind that there is no impending attack or even a credible threat of an attack by Iran on Israel at the moment. So this discussion is totally hypothetical and abject political campaign sophistry. A sensible leader would have left standing the carefully considered reply made in the debate to a dubious question. But Clinton’s desperation to appeal to the fears and anxieties of the Pennsylvania electorate led her to seek out a media opportunity to elaborate on her statement. To Olberman she stated that, if Israel were subjected to a nuclear attack by Iran, the US would respond with the nuclear option. Aside from the vestiges of “Dr. No” in the tenor of the Clinton Campaign rhetoric, there are at least a couple of glaring problems with her latest tactic.

First, what the country really needs right now is a leader who will not quickly rise to irresponsible and hawkish rhetoric. Clinton, even if the initiative were coming from the press instead of her press agent, could have FIRST emphasized that all possible diplomatic measures would be undertaken to prevent a situation in which such an attack by Iran would even be considered a realistic option. Instead, Clinton opted for the guns a’ blazing style of cowboy rhetoric that the current administration is known for using to mobilize right wing support and scare the rest of the electorate.

Second, the measured and responsible statesman and leader that we need in the White House would not be lured into declaring specific optional responses to hypothetical conjectures. As Obama stated, he would not rule out any option for responding to a critical situation involving the US or its allies and interests. The proper response would be considered and measured against the actual situation or circumstances. That type of response is not weak or waffling. It shows instead that the leader is willing to make tough decisions, but is not willing to be goaded into false bravado and irresponsible speculation.

Unfortunately, Clinton’s tactics display more clearly than before why she may well be the lesser qualified candidate to actually occupy the White House. Clinton and her campaign will apparently say anything to try to gain an edge. Her campaign is running ads that are designed to suggest [to the lesser educated public] that there is some connection between Obama and Osama Bin Laden, and that Clinton would stand up to the Muslim terrorist leader while Obama might not. This tactic, of course, is one we might expect from extreme right wing groups trying to imply that Obama is a Muslim [which he is not]. This is about the lowest Clinton has stooped since her debacle of denigrating Dr. Martin Luther King, Jr. and the accomplishments of the Civil Rights Movement of the 1960's , prior to the South Carolina and Alabama nominating contests. Her desperation suggests that she may be the more adept mudslinging and deceitful campaigner. But those traits are the opposite of the character that the country needs so badly in the leadership position as President of the United States.

A Drop in Quality Law School Instruction at UC Berkeley? Yoo Bet!

The recently revealed March 2003 memoranda written by John Yoo while working for David Addington in the White House Office of legal Counsel [OLC] cast a shadow on the credibility of the University of California [Berkeley] Law School. The caliber of Yoo’s legal acumen, judgment and ethics, as demonstrated by his drafting of these controversial legal opinions, would not qualify a typical “politically unconnected” lawyer for a job as paralegal at any respectable law firm. Yet John Yoo enjoys the prestige and remuneration as a professor at the UC Berkeley School of Law.

Consider the consensus review of the quality of the legal opinion Yoo gave the Bush Administration regarding the use of “aggressive interrogation” tactics, which have been proven officially sanctioned torture of prisoners by US military agents. The Yoo memorandum, later recanted by the OLC as “unreliable,” established the standard approved at the White House and Cabinet level used by the CIA and Pentagon for disregarding virtually every previously established treaty and legal standard barring human rights violations in the name of purportedly fighting global terrorism. In the words of Dan Froomkin, author of The Washington Post's "White House Briefing" blog, Yoo’s 81 page memo is "a historic document ... the ultimate expression of Cheney's belief that anything the president or his designates do - no matter how illegal, barbaric or un-American - is justifiable in the name of national self-defense... It is also an example of how enabling zealots to disregard the rule of law and the customary boundaries of human conduct leads to madness.”

This is the memo shown to Gen, Geoffrey Miller before he was sent from the Guantanamo Bay Prison Camp to Abu Ghraib with orders to take control of the prison from Gen. Janis Karpinski and “GITMO-ize” [as he referred to it] that facility. There is no clear evidence of prisoner abuse approaching the magnitude exposed in the internationally embarrassing Abu Ghraib scandal prior to Miller’s arrival. Thus, the argument that the torture at Abu Ghraib was a product of renegade subordinates is manifestly false. The violations of international standards of human rights, rising to the level of potential war crimes [as evidenced by the charges the Bush Administration leveled against its subordinates in retaliation for seeking to place the blame at higher levels], arose directly from orders and approved conduct by officials at the Pentagon and White House.

Yoo’s unsound thinking and incompetent reasoning extends further. A footnote in the March 2003 memo reveals a second John Yoo memorandum that directly undermines the Fourth Amendment to the US Constitution, the right of the people to be secure against unreasonable searches and seizures. That still classified memorandum, titled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States," reasons that the Fourth Amendment does not apply to military operations authorized by the President on American soil against US citizens as long as the President contends that the actions of the military are to protect national security by fighting global terrorism. This reasoning is not only vague and illogical, it directly contravenes many decades of precedent constraining the operation of the military and the CIA within the US borders and against US citizens. The list of dictators and despots using national military forces against citizens of their countries is long and disgusting. These are the types of abuses by King George of England that sparked the American Rebellion and led to the founding of the United States as an independent nation based upon a rule of law and due process guarantees. Yet John Yoo sought to invest George W. Bush with authority to enter that pantheon of international despots.

If Yoo was simply a political zealot willing to offer up any opinion sought by his superiors, Addington and Cheney, then his personal ethical standards and adherence to his oath upon entering the Bar [Cannon of Ethics requires independent judgment and advice],suggest that Yoo lacks the judgment and moral fiber to participate in the formation and instruction of new lawyers. On the other hand, if Yoo actually believes that his opinions were sound and based upon his best legal reasoning, then he needs to enroll himself in the UC Berkeley Law School to obtain a refresher course on the principles of the rule of law and the US Constitution. In any event, the Administration of the UC Berkeley Law School has shown an astounding lack of judgment and integrity in exposing its students to John Yoo as a representative of legal scholarship and experience. This is not simply a question of a politically controversial figure being appointed to a high profile post. Under any political stripe, Yoo’s work would be considered second or third rate legal analysis at best, and more accurately a case of incompetence.

Yoo just happens to be Asian and it may be that the UC was searching for any high profile professor of color in light of the curtailment of recruiting students of color after the Bakke decision. If so, the decision to hire Yoo is doubly wrong. The students who displaced Bakke were demonstrably qualified, but did not score as high as Bakke on standardized admissions testing criteria. Hiring John Yoo because of his race when he is manifestly incompetent and less qualified than many other experienced law professors and lawyers is precisely the evil that Bakke purported to extinguish. This, however, is more likely a case of political cronyism. Nevertheless, Yoo’s appointment has done more damage to the integrity of the University of California Law School than any potential damage that affirmative action could have wrought before the Bakke case