Tuesday, March 3, 2009
Memos Provide Blueprint for Police State

Seven newly released memos from the Bush Justice Department reveal a concerted strategy to cloak the President with power to override the Constitution. The memos provide “legal” rationales for the President to suspend freedom of speech and press; order warrantless searches and seizures, including wiretaps of U.S. citizens; lock up U.S. citizens indefinitely in the United States without criminal charges; send suspected terrorists to other countries where they will likely be tortured; and unilaterally abrogate treaties. According to the reasoning in the memos, Congress has no role to check and balance the executive. That is the definition of a police state.

Who wrote these memos? All but one were crafted in whole or in part by the infamous John Yoo and Jay Bybee, authors of the so-called “torture memos” that redefined torture much more narrowly than the U.S. definition of torture, and counseled the President how to torture and get away with it. In one memo, Yoo said the Justice Department would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.

What does the federal maiming statute prohibit? It makes it a crime for someone “with the intent to torture, maim, or disfigure” to “cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person.” It further prohibits individuals from “throwing or pouring upon another person any scalding water, corrosive acid, or caustic substance” with like intent.

The two torture memos were later withdrawn after they became public because their legal reasoning was clearly defective. But they remained in effect long enough to authorize the torture and abuse of many prisoners in U.S. custody.

The seven memos just made public were also eventually disavowed, several years after they were written. Steven Bradbury, the Principal Deputy Assistant Attorney General in Bush’s Department of Justice, issued two disclaimer memos – on October 6, 2008 and January 15, 2009 – that said the assertions in those seven memos did “not reflect the current views of this Office.” Why Bradbury waited until Bush was almost out of office to issue the disclaimers remains a mystery. Some speculate that Bradbury, knowing the new administration would likely release the memos, was trying to cover his backside.

Indeed, Yoo, Bybee and Bradbury are the three former Justice Department lawyers that the Office of Professional Responsibility singled out for criticism in its still unreleased report. The OPR could refer these lawyers for state bar discipline or even recommend criminal charges against them.

In his memos, Yoo justified giving unchecked authority to the President because the United States was in a “state of armed conflict.” Yoo wrote, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” Yoo made the preposterous argument that since deadly force could legitimately be used in self-defense in criminal cases, the President could suspend the Fourth Amendment because privacy rights are less serious than protection from the use of deadly force.

Bybee wrote in one of the memos that nothing can stop the President from sending al Qaeda and Taliban prisoners captured overseas to third countries, as long as he doesn’t intend for them to be tortured. But the Convention Against Torture, to which the United States is a party, says that no country can expel, return or extradite a person to another country “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Bybee claimed the Torture Convention didn’t apply extraterritorially, a proposition roundly debunked by reputable scholars. The Bush administration reportedly engaged in this practice of extraordinary rendition 100 to 150 times as of March 2005.

The same day that Attorney General Eric Holder released the memos, the government revealed that the CIA had destroyed 92 videotapes of harsh interrogations of Abu Zubaida and Abd al Rahim al Nashiri, both of whom were subjected to waterboarding. The memo that authorized the CIA to waterboard, written the same day as one of Yoo/Bybee’s torture memos, has not yet been released.

Bush insisted that Zubaida was a dangerous terrorist, in spite of the contention of one of the FBI’s leading al Qaeda experts that Zubaida was schizophrenic, a bit player in the organization. Under torture, Zubaida admitted to everything under the sun – his information was virtually worthless.

There are more memos yet to be released. They will invariably implicate Bush officials and lawyers in the commission of torture, illegal surveillance, extraordinary rendition, and other violations of the law.

Meanwhile, John Yoo remains on the faculty of Berkeley Law School and Jay Bybee is a federal judge on the Ninth Circuit Court of Appeals. These men, who advised Bush on how to create a police state, should be investigated, prosecuted, and disbarred. Yoo should be fired and Bybee impeached.

http://www.marjoriecohn.com

Hope you sit close to the floor; wouldn’t want you to injure yourself!

And then sent another, more somber message:

Hi, Andy!

Should the US Government convict Mr. Marri on ANY charge, it avoids having to resort to extralegal detention via the “enemy combatant” designation (or other ruse). That is, of course, what happened to Jose Padilla, and what the Government I believe is betting will happen to Mr. Marri.

A client told me just last night that polling here shows our Muslims to be a seriously disaffected lot, with up to a third favoring regime change — fully half, if one includes those who would not lift a finger to save the (present) US Government!

If accurate, these polls do no more than reflect attitudes OUTSIDE the US. But here at home, minorities are expected to suffer in silence; to be grateful for whatever they’ve got; to help fight the country’s wars; and to thereby EARN a place at the banquet table.

Privation, discrimination, harassment AND military service are all part of the time-tested hazing ritual for immigrants and minorities; and except for wealthiest 0.01% who make the rules, no one skips steps.

Mr. Marri will be convicted to something, I predict.

Best regards,

BRUCE T.

Hi Bruce,
Good to hear from you.
I could have missed the point, but I would fall off my chair in disbelief if they attempted that particular trick.
What concerns me is keeping the door open for a “hypothetical possibility” — someone other than al-Marri.
Best,
Andy

< < Instead, the Justice Department explained, in a brief filed with the Supreme Court last Wednesday, that, while the government “did not defend its power to detain Mr. Marri at present” (as Glenn Greenwald described it for Salon), “it left open the possibility that he or others might be subject to military detention as enemy combatants in the future.” In the Justice Department’s exact words, “Any future detention — were that hypothetical possibility ever to occur — would require new consideration under then-existing circumstances and procedure.” >>

Dear Andy,

Why won’t you or Glenn Greenwald just say it? If Mr. Marri is ACQUITTED, and the court discharges him from ITS custody; the US Government still reserves the right to hold him as an enemy combatant. THAT is what the above-quoted paragraph means.

Why are you beating around the bush?

Respectfully,

BRUCE TYLER WICK
Cleveland, Ohio USA

The hearing was fairly inconclusive. Al-Marri was “told he must wait until he is moved to another state before he can enter a plea on charges of supporting terrorism” (to which he is expected to plead not guilty), but he was clearly happy to be out of the brig for the first time since June 2003, and Reuters reported that he “smiled as he chatted with his lawyer.”

A bond hearing has been scheduled for March 18, and al-Marri’s lawyer, Andy Savage, said that government prosecutors will be required to present at least some of the evidence against his client. He added that he plans to present witnesses, and has requested that two of al-Marri’s brothers be allowed to travel to the US to take part.

Assistant US Attorney Kevin McDonald, for the prosecution, said that after next week’s hearing, al-Marri would probably be transferred to Illinois. The prosecutors also claimed, as Reuters described it, that al-Marri “is a danger to the community and a flight risk and should stay locked up pending trial,” but McDonald came unstuck when he told the judge that US Immigration and Customs Enforcement officials had prepared a detention order against al-Marri, claiming that he “is in the country illegally.” Savage replied by noting that, when al-Marri was arrested in December 2001, he was a student with a valid visa. “His status was lawful,” he pointed out. “He came here openly with the approval of his government and the American government.”

The most poignant passage was the following, which provides just a glimpse of what it must feel like to be allowed outside for the first time after seven years’ imprisonment without charge or trial: “Marri was taken from the brig to the federal courthouse in downtown Charleston before daybreak. He was disappointed that all he could see were the headlights of other vehicles but hoped to get a glimpse of the area on his return trip to the brig, Savage said.”

Savage added that, in spite of his long suffering, al-Marri “harbored no animosity.” “You don’t see any signs of bitterness,” he said. “You see someone who is grateful to go to court today.”

A great quote from Valtin’s most recent blog (linked above):

“Torture remains a little understood and embarrassing subject in U.S. circles. It’s dimly recognized that if the lid were totally taken off, much of the establishment leadership in the U.S. would be revealed as culpable, or at least compromised. Hence, mainstream opinion makers are attempting to keep whatever scandals within ‘reasonable’ limits.

“Politics can be strange sometimes. The mainstream opinion makers are usually pretty good at what they do, especially the left-wing versions of them. But they don’t often have to deal with such incendiary material.”

Valtin adds that this necessary work has instead been taken up by “a dedicated coterie of attorneys, bloggers, journalists, and even some politicians and military officers, who don’t want to see this issue die before accountability takes place.”