The Debate Rages Over Safety of Tasers

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By Jordana Huber

TORONTO — Police say Michael Langan was armed, dangerous and ignoring orders to drop his knife moments before he was Tasered in a Winnipeg back alley.

The car-theft suspect became the latest Canadian, and the youngest, according to Amnesty International, to die in a Taser-related incident.

The subsequent controversy has thrust police in the Manitoba capital into the spotlight of the ongoing debate about Taser safety, and has provided more ammunition for opponents of the “electronic control device” who have long called on law-enforcement agencies to suspend its use.

Frank Addario is president of the Criminal Lawyers’ Association, which has called for a moratorium on the use of the weapon pending an inquiry into its safety He said officer training lacks uniformity and follow-up procedures are either ineffective or incomplete — making it difficult to determine whether police are strictly limiting Tasers to situations where subjects pose a probable threat of serious injury to themselves or to others.

“This is not about whether one supports the police or whether one empathizes with their abilities in managing unruly suspects,” Addario said. “This is about whether the weapon, as designed, is delivering what it promised, and if it is not, police forces in Canada ought to stop using it until better training can occur or the weapon can be modified.”

Tasers are billed by police forces and the device’s manufacturer as an effective weapon that can save lives and reduce injury to officers and suspects.

Critics warn there is no medical consensus on their safety and say public confidence in Tasers as a “non-lethal” use of force is increasingly being eroded in the wake of more than 20 deaths in Canada since 2003 linked to — though not blamed on — the conductive energy weapon.

Amid the public outcry following the release of a video of Robert Dziekanski, a Polish immigrant who was Tasered in October, 2007 at Vancouver International Airport by the RCMP, a report by the Mounties public complaints commission chairman Paul Kennedy urged the RCMP to reign in their use of Tasers.

He said it appeared Tasers were being deployed by RCMP more often and much earlier in encounters with suspects than originally intended when they were adopted. Still, the extent of “usage creep” was impossible to determine because the Mounties had engaged in “systematic under-reporting.”

According to documents obtained under the Access to Information Act by Canwest News Service, the overall use of Tasers by the RCMP soared to 1,119 incidents in 2006 and 1,414 in 2007, compared with only 597 incidents in 2005.

Municipal police forces across the country largely classify Tasers as “intermediate weapons” and consider them an appropriate option for subjects “actively resistant” towards an officer, Kennedy said in his report.

Still, he noted there remain “subtle but significant differences” in operational policies surrounding their use.

Earlier this month, Nova Scotia placed interim restrictions limiting Tasers to “situations of violent or aggressive resistance or active threat that may cause serious injury,” following the release of a report into the death of a 45-year-old man who passed away hours after officers deployed a Taser.

Ontario only allows tactical officers or front-line supervisors to carry Tasers, while they are a standard tool of front-line police in Winnipeg, Calgary, and in Edmonton.

Dziekanski’s death prompted the Royal Newfoundland Constabulary to hold off on plans to expand their use of Tasers. The Saskatchewan Police Commission announced Friday it won’t authorize the use of the devices by members of the province’s 14 municipal and First Nation police services. However, SWAT team members will continue to be authorized to use them.

Addario said the varying protocols for Taser deployment need to be harmonized across the country so all police forces are “singing from the same songbook” when it

comes to the circumstances under which Tasers should be used.

A briefing note reviewing current medical research and literature on Tasers prepared for the Canadian Association of Police Boards in March suggested deaths or injuries that occur proximal to the use of the Taser will continue to prompt “flare ups” from the public that likely will result in ongoing pressure to define more precisely when a Taser

should and should not be deployed.

The report added policies dictating when officers can deploy a Taser could be detrimental to good policing and counter-productive because use of force is contingent on a mix of circumstances at any scene.

There is no “black and white” answer, said RCMP Const. Donald Perrett. He monitors and compiles daily reports of Taser use by officers across the country.

“Policework is dynamic,” Perrett said. “It is difficult to say when and how, because two police officers can look at the exact same situation and will both respond differently.”

In May, a study by researchers published in the Canadian Medical Association Journal said despite research suggesting Tasers don’t hurt internal organs such as the heart, “it is inappropriate to conclude stun-gun discharges cannot lead to adverse cardiac consequences in all real-world settings.”

Accompanying the research was an editorial by CMAJ deputy editor Dr. Matthew Stanbrook who said Taser safety has become a public health issue as law-enforcement officials preach the benefits of deploying the weapon when dealing with subjects suffering “excited delirium.”

The highly controversial diagnosis is not recognized by the Diagnostic and Statistical Manual of Mental Disorders but has increasingly been listed by coroners as a cause of death in people restrained by police during an altercation — regardless of whether a Taser was used.

Associated with individuals who have taken drugs, alcohol or who have a mental illness, symptoms can include agitation and super-human strength and can lead to sudden death, some researchers suggest.

Many police trainers teach officers excited delirium is a medical emergency and the sooner someone is taken into care, the better off they will be.

It’s a recommendation endorsed by several coroner’s juries — most recently by a panel in Ontario looking into the death of amateur boxer Jerry Knight, who fought more than 20 officers before being subdued during an incident in a motel lobby in 2004.

Mike Webster, a police psychologist, said “well-meaning” law-enforcement officials have been “brainwashed” by the device’s manufacturer to justify “ridiculously and inappropriate” use of the weapon for a disorder that doesn’t exist.

“Police have been indoctrinated into believing in this fictitious disorder — this excited delirium — and it is presented as a rational for the use of the weapon,” said Webster who testified at public inquiry in B.C. probing Tasers.

Meanwhile, Winnipeg Police Chief Keith McCaskill warned this week it is far too early to pass judgment on the circumstances surrounding Langan’s death.

But he said police in the city are trained “very clearly” on how to respond to situations such as the one two patrol officers were confronted with on Tuesday.

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RECENT CANADIAN TASER INCIDENTS

2007

- Oct. 14. Robert Dziekanski died after being Tasered by the RCMP at Vancouver International Airport. He just arrived from Poland and due to a mix up waited for hours in the arrivals area, becoming distraught and tossing chairs.

- Oct. 15. John Moore of London, Ont., had a heart attack while being subdued by police with a Taser. He admitted to being high on drugs at the time of his arrest.

- Oct. 18. Quilem Registre, 39, died of multiple heart attacks several days after being Tasered by Montreal police. He was stopped by police on Oct. 15 on suspicion of drunk driving.

- Oct. 31. Ron Chipman, 22, was restrained and Tasered in a police cell in the Regional Municipality of Cape Breton. He claimed he resisted being restrained because he was choking.

- Nov. 5. John Peters, a senior citizen who was double parked while delivering free newspapers in Kelowna, B.C., was Tasered twice by the RCMP when he ignored their attempts to ticket him for the traffic violation. The RCMP publically apologized but Peters is suing.

- Nov. 20. Robert Knipstrom, 36, of Chilliwack, B.C., was killed after struggling with the RCMP. Police used pepper spray, a Taser and a baton to subdue him. He died days later in hospital.

- Nov. 21. Howard Hyde, 45, of Dartmouth, N.S., died about 30 hours after being Tasered by police. A paranoid schizophrenic who had stopped taking his medication, he had been arrested for assaulting his girlfriend.

- Dec. 10. Ghasem Yarahmadi brandished a knife in the Whitehorse RCMP detachment and attempted to slash his own wrists. He was Tasered by police and later treated in hospital for unspecified injuries.

2008

- Feb. 28. A man with a knife walked into an RCMP detachment in Moncton, N.B., then attacked a civilian employee, while asking police to shoot him. He was subdued but not injured with a Taser.

- March 21. Victoria area RCMP Taser a violent 15-year-old while he was handcuffed inside a police vehicle. The youth had been picked up for violating a court-ordered curfew. He was not injured.

- April 3. A Calgary man, high on cocaine, was Tasered three times in an effort to subdue him after he stole a truck, drove into a garage, a police car and finally a fence. He was not injured.

- April 5. Terrence Yellowback of the Manto Sipi Cree Nation in Manitoba is shot, then Tasered by an RCMP officer when he refused to drop the table leg he was brandishing as a weapon. He later admitted he had been drinking and deliberately walked towards the police with the weapon but maintains the Tasering was excessive. He was treated in hospital for the gunshot wound.

- April 18. An unidentified Hamilton, Ont., man is treated in hospital for burns after a shock from a Taser ignited his trousers. Police suggest the man had a flammable substance in his pants. The Ontario Special Investigations Unit is investigating.

- May 1. RCMP Commissioner William Elliot is voluntarily Tasered by police in Alberta. A small hole was burned in his shirt but he refused to describe the experience to the media. Alberta Attorney General Fred Lindsay was also Tasered at the same time and described the pain as “incapacitating” but that it dissipated quickly.

- June 23. Jeffrey Marreel died in June in Norfolk County, about 130 kilometres southwest of Toronto, after being Tasered by Ontario Provincial Police. He was causing a disturbance and had a history of depression and drug use.

- July 7, 2008. Cape Breton Regional Police Taser a pit-bull type dog that was endangering a crowd. The Humane Society euthanized the dog.

- July 11. Jonathan Lavoie is Tasered once by the RCMP in Campbellton, N.B., as they try to subdue him after he assaulted three people and stole a police car.

- July 12. Nova Scotia issues new guidelines for stun gun use by police agencies and will create the position of a “use-of-force co-ordinator “as recommended in an advisory panel report issued June 30.

- July 22. A 17-year old teenager died after being shocked with a Taser by Winnipeg police. They were pursuing him after he allegedly robbed a car, and brandished a knife at police.

The Agency Name That Dare Not Be Spoken

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By Carol J. Williams

Guantanamo Bay, Cuba - The name of the Central Intelligence Agency cannot be spoken in the war crimes trial here.

No records of the agency’s interrogations of Salim Ahmed Hamdan can be subpoenaed, and no agent can be called to testify about what he or she learned from Osama bin Laden’s former driver.

When defense attorney Harry H. Schneider Jr. attempted to demonstrate how many interrogations Hamdan had undergone in the months after his November 2001 arrest — at least 40 — he couldn’t list the CIA along with more than a dozen other agencies including the Secret Service and what was then known as the Immigration and Naturalization Service.

The prohibition against naming the CIA came in a “protective order” issued by the court at the government’s request. The tribunal’s deputy chief prosecutor, Army Col. Bruce A. Pagel, couldn’t say which agency sought the shield or what arguments were made to justify it.

“It’s a bit absurd to go through an entire trial pretending that the CIA doesn’t exist,” said Matt Pollard, a legal advisor for Amnesty International here to monitor the proceedings.

“The CIA plays a role with the detainees at Guantanamo Bay that has never been fully acknowledged, and the bottom line is that national security should never be claimed against any evidence of torture or human-rights violations.”

Not loving it

Former FBI Al Qaeda expert Ali Soufan brought Hamdan Filet-O-Fish sandwiches from McDonald’s to get on the prisoner’s good side.

Fellow agent George M. Crouch Jr. discovered that Hamdan had an affinity for Mickey D fries and was more forthcoming when his junk-food jones was satisfied.

But the 38-year-old Yemeni soon learned what regular visitors to the Golden Arches have known for decades: You’ve got to get ‘em while they’re hot.

Crouch told the court how he tried to bring in an order from the McDonald’s on the Navy base, which is no more than a 10-minute drive from the interrogation site. But on that July day in 2002, he was blocked from entering for more than an hour by military guards.

“Mr. Hamdan even appreciated that McDonald’s fries are not good cold,” Crouch told the court, eliciting laughter from the judge and jurors.

Brief briefings

To have an impressive backdrop for the government’s daily spin on the tribunal proceedings, a Pentagon engineering unit built and furnished a press briefing room inside the abandoned hangar that houses journalists covering the Hamdan trial.

At a cost of nearly $50,000, the news-conference room at Camp Justice — as the Expeditionary Legal Complex is known — has one serious problem: You can’t hear a thing when the giant air conditioner is turned on, and you can’t breathe when it isn’t.

The roaring AC is turned off just seconds before the Pentagon public affairs officers approach the podium in front of the Stars and Stripes and the five flags of the uniformed services.

In southern Cuba’s scorching summer temperatures, it’s a matter of minutes before brows start beading with sweat and journalists start tugging at their collars. The stifling heat has made the media opportunities uncharacteristically brief.

Proof of life

In a rare bow to Geneva Convention prisoner-of-war protections, the tribunal gives Hamdan the right to approve the courtroom sketch artist’s renderings of the defendant.

The Geneva Convention prohibits the “parading” of POWs, and although the Bush administration has steadfastly refused to classify the Guantanamo detainees as POWs, officials have used the parading ban to prevent images of the detainees from being made public.

Sketch artist Janet Hamlin showed her first drawing to the defendant after the opening day of testimony Tuesday. It drew a big smile and a double thumbs-up from Hamdan.

His pleasure at being depicted might have reflected Hamdan’s appreciation of a rare chance to let his family in Yemen get a glimpse of him after a nearly seven-year absence.

Hamdan has a fourth-grade education and has learned little English during his detention — all but a few months of it in solitary cells.

Guards have taught their charges hand signals common in the United States, like the thumbs-up, to aid communication.

They asked for it

Complying with the letter, if not the spirit, of a judge’s months-old order to turn over records of Hamdan’s six-year detention here to defense lawyers, the prosecution delivered more than 500 pages of evidence 12 hours before his trial began Monday.

“It was a document dump,” said the tribunal’s deputy chief of defense, Michael Berrigan. Many pages in the jumble lacked dates or letterhead, and the page sequence didn’t correspond to the discovery list issued by the judge, Navy Capt. Keith J. Allred.

To sort through the mess, the tribunal defense chief, Army Col. Steve David, conscripted seven other detainees’ defense lawyers — on the base to consult with their clients — to spend the night combing the documents for information important to Hamdan’s case.

One nugget was raised in court Friday: Civilian defense lawyer Joseph McMillan grilled FBI agents about a practice outlined in a secret document to “exploit the sense of disorientation” common among newly arrived detainees.

“At the end of the day, there’s only one government,” Berrigan said of the prosecution’s excuse that other agencies had held up compliance with Allred’s discovery order.

“The bottom line is that the defense is not equipped, under the rules we have to operate under, to present an adequate defense.”

The Military-Industrial Complex

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By Chalmers Johnson

It's Much Later Than You Think

Most Americans have a rough idea what the term "military-industrial complex" means when they come across it in a newspaper or hear a politician mention it. President Dwight D. Eisenhower introduced the idea to the public in his farewell address of January 17, 1961. "Our military organization today bears little relation to that known by any of my predecessors in peacetime," he said, "or indeed by the fighting men of World War II and Korea… We have been compelled to create a permanent armaments industry of vast proportions… We must not fail to comprehend its grave implications… We must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex."

Although Eisenhower’s reference to the military-industrial complex is, by now, well-known, his warning against its "unwarranted influence" has, I believe, largely been ignored. Since 1961, there has been too little serious study of, or discussion of, the origins of the military-industrial complex, how it has changed over time, how governmental secrecy has hidden it from oversight by members of Congress or attentive citizens, and how it degrades our Constitutional structure of checks and balances.

From its origins in the early 1940s, when President Franklin Delano Roosevelt was building up his "arsenal of democracy," down to the present moment, public opinion has usually assumed that it involved more or less equitable relations -- often termed a "partnership" -- between the high command and civilian overlords of the United States military and privately-owned, for-profit manufacturing and service enterprises. Unfortunately, the truth of the matter is that, from the time they first emerged, these relations were never equitable.

In the formative years of the military-industrial complex, the public still deeply distrusted privately owned industrial firms because of the way they had contributed to the Great Depression. Thus, the leading role in the newly emerging relationship was played by the official governmental sector. A deeply popular, charismatic president, FDR sponsored these public-private relationships. They gained further legitimacy because their purpose was to rearm the country, as well as allied nations around the world, against the gathering forces of fascism. The private sector was eager to go along with this largely as a way to regain public trust and disguise its wartime profit-making.

In the late 1930s and early 1940s, Roosevelt’s use of public-private "partnerships" to build up the munitions industry, and thereby finally overcome the Great Depression, did not go entirely unchallenged. Although he was himself an implacable enemy of fascism, a few people thought that the president nonetheless was coming close to copying some of its key institutions. The leading Italian philosopher of fascism, the neo-Hegelian Giovanni Gentile, once argued that it should more appropriately be called "corporatism" because it was a merger of state and corporate power. (See Eugene Jarecki’s The American Way of War, p. 69.)

Some critics were alarmed early on by the growing symbiotic relationship between government and corporate officials because each simultaneously sheltered and empowered the other, while greatly confusing the separation of powers. Since the activities of a corporation are less amenable to public or congressional scrutiny than those of a public institution, public-private collaborative relationships afford the private sector an added measure of security from such scrutiny. These concerns were ultimately swamped by enthusiasm for the war effort and the postwar era of prosperity that the war produced.

Beneath the surface, however, was a less well recognized movement by big business to replace democratic institutions with those representing the interests of capital. This movement is today ascendant. (See Thomas Frank’s new book, The Wrecking Crew: How Conservatives Rule, for a superb analysis of Ronald Reagan’s slogan "government is not a solution to our problem, government is the problem.") Its objectives have long been to discredit what it called "big government," while capturing for private interests the tremendous sums invested by the public sector in national defense. It may be understood as a slow-burning reaction to what American conservatives believed to be the socialism of the New Deal.

Perhaps the country’s leading theorist of democracy, Sheldon S. Wolin, has written a new book, Democracy Incorporated, on what he calls "inverted totalitarianism" -- the rise in the U.S. of totalitarian institutions of conformity and regimentation shorn of the police repression of the earlier German, Italian, and Soviet forms. He warns of "the expansion of private (i.e., mainly corporate) power and the selective abdication of governmental responsibility for the well-being of the citizenry." He also decries the degree to which the so-called privatization of governmental activities has insidiously undercut our democracy, leaving us with the widespread belief that government is no longer needed and that, in any case, it is not capable of performing the functions we have entrusted to it.

Wolin writes:

"The privatization of public services and functions manifests the steady evolution of corporate power into a political form, into an integral, even dominant partner with the state. It marks the transformation of American politics and its political culture, from a system in which democratic practices and values were, if not defining, at least major contributory elements, to one where the remaining democratic elements of the state and its populist programs are being systematically dismantled." (p. 284)

Mercenaries at Work

The military-industrial complex has changed radically since World War II or even the height of the Cold War. The private sector is now fully ascendant. The uniformed air, land, and naval forces of the country as well as its intelligence agencies, including the CIA (Central Intelligence Agency), the NSA (National Security Agency), the DIA (Defense Intelligence Agency), and even clandestine networks entrusted with the dangerous work of penetrating and spying on terrorist organizations are all dependent on hordes of "private contractors." In the context of governmental national security functions, a better term for these might be "mercenaries" working in private for profit-making companies.

Tim Shorrock, an investigative journalist and the leading authority on this subject, sums up this situation devastatingly in his new book, Spies for Hire: The Secret World of Intelligence Outsourcing. The following quotes are a précis of some of his key findings:

"In 2006… the cost of America’s spying and surveillance activities outsourced to contractors reached $42 billion, or about 70 percent of the estimated $60 billion the government spends each year on foreign and domestic intelligence… [The] number of contract employees now exceeds [the CIA’s] full-time workforce of 17,500… Contractors make up more than half the workforce of the CIA’s National Clandestine Service (formerly the Directorate of Operations), which conducts covert operations and recruits spies abroad…

"To feed the NSA’s insatiable demand for data and information technology, the industrial base of contractors seeking to do business with the agency grew from 144 companies in 2001 to more than 5,400 in 2006… At the National Reconnaissance Office (NRO), the agency in charge of launching and maintaining the nation’s photoreconnaissance and eavesdropping satellites, almost the entire workforce is composed of contract employees working for [private] companies… With an estimated $8 billion annual budget, the largest in the IC [intelligence community], contractors control about $7 billion worth of business at the NRO, giving the spy satellite industry the distinction of being the most privatized part of the intelligence community…

"If there’s one generalization to be made about the NSA’s outsourced IT [information technology] programs, it is this: they haven’t worked very well, and some have been spectacular failures… In 2006, the NSA was unable to analyze much of the information it was collecting… As a result, more than 90 percent of the information it was gathering was being discarded without being translated into a coherent and understandable format; only about 5 percent was translated from its digital form into text and then routed to the right division for analysis.

"The key phrase in the new counterterrorism lexicon is ’public-private partnerships’… In reality, ’partnerships’ are a convenient cover for the perpetuation of corporate interests." (pp. 6, 13-14, 16, 214-15, 365)

Several inferences can be drawn from Shorrock’s shocking exposé. One is that if a foreign espionage service wanted to penetrate American military and governmental secrets, its easiest path would not be to gain access to any official U.S. agencies, but simply to get its agents jobs at any of the large intelligence-oriented private companies on which the government has become remarkably dependent. These include Science Applications International Corporation (SAIC), with headquarters in San Diego, California, which typically pays its 42,000 employees higher salaries than if they worked at similar jobs in the government; Booz Allen Hamilton, one of the nation’s oldest intelligence and clandestine-operations contractors, which, until January 2007, was the employer of Mike McConnell, the current director of national intelligence and the first private contractor to be named to lead the entire intelligence community; and CACI International, which, under two contracts for "information technology services," ended up supplying some two dozen interrogators to the Army at Iraq’s already infamous Abu Ghraib prison in 2003. According to Major General Anthony Taguba, who investigated the Abu Ghraib torture and abuse scandal, four of CACI’s interrogators were "either directly or indirectly responsible" for torturing prisoners. (Shorrock, p. 281)

Remarkably enough, SAIC has virtually replaced the National Security Agency as the primary collector of signals intelligence for the government. It is the NSA’s largest contractor, and that agency is today the company’s single largest customer.

There are literally thousands of other profit-making enterprises that work to supply the government with so-called intelligence needs, sometimes even bribing Congressmen to fund projects that no one in the executive branch actually wants. This was the case with Congressman Randy "Duke" Cunningham, Republican of California’s 50th District, who, in 2006, was sentenced to eight-and-a-half years in federal prison for soliciting bribes from defense contractors. One of the bribers, Brent Wilkes, snagged a $9.7 million contract for his company, ADCS Inc. ("Automated Document Conversion Systems") to computerize the century-old records of the Panama Canal dig!

A Country Drowning in Euphemisms

The United States has long had a sorry record when it comes to protecting its intelligence from foreign infiltration, but the situation today seems particularly perilous. One is reminded of the case described in the 1979 book by Robert Lindsey, The Falcon and the Snowman (made into a 1985 film of the same name). It tells the true story of two young Southern Californians, one with a high security clearance working for the defense contractor TRW (dubbed "RTX" in the film), and the other a drug addict and minor smuggler. The TRW employee is motivated to act by his discovery of a misrouted CIA document describing plans to overthrow the prime minister of Australia, and the other by a need for money to pay for his addiction.

They decide to get even with the government by selling secrets to the Soviet Union and are exposed by their own bungling. Both are sentenced to prison for espionage. The message of the book (and film) lies in the ease with which they betrayed their country -- and how long it took before they were exposed and apprehended. Today, thanks to the staggering over-privatization of the collection and analysis of foreign intelligence, the opportunities for such breaches of security are widespread.

I applaud Shorrock for his extraordinary research into an almost impenetrable subject using only openly available sources. There is, however, one aspect of his analysis with which I differ. This is his contention that the wholesale takeover of official intelligence collection and analysis by private companies is a form of "outsourcing." This term is usually restricted to a business enterprise buying goods and services that it does not want to manufacture or supply in-house. When it is applied to a governmental agency that turns over many, if not all, of its key functions to a risk-averse company trying to make a return on its investment, "outsourcing" simply becomes a euphemism for mercenary activities.

As David Bromwich, a political critic and Yale professor of literature, observed in the New York Review of Books:

"The separate bookkeeping and accountability devised for Blackwater, DynCorp, Triple Canopy, and similar outfits was part of a careful displacement of oversight from Congress to the vice-president and the stewards of his policies in various departments and agencies. To have much of the work parceled out to private companies who are unaccountable to army rules or military justice, meant, among its other advantages, that the cost of the war could be concealed beyond all detection."

Euphemisms are words intended to deceive. The United States is already close to drowning in them, particularly new words and terms devised, or brought to bear, to justify the American invasion of Iraq -- coinages Bromwich highlights like "regime change," "enhanced interrogation techniques," "the global war on terrorism," "the birth pangs of a new Middle East," a "slight uptick in violence," "bringing torture within the law," "simulated drowning," and, of course, "collateral damage," meaning the slaughter of unarmed civilians by American troops and aircraft followed -- rarely -- by perfunctory apologies. It is important that the intrusion of unelected corporate officials with hidden profit motives into what are ostensibly public political activities not be confused with private businesses buying Scotch tape, paper clips, or hubcaps.

The wholesale transfer of military and intelligence functions to private, often anonymous, operatives took off under Ronald Reagan’s presidency, and accelerated greatly after 9/11 under George W. Bush and Dick Cheney. Often not well understood, however, is this: The biggest private expansion into intelligence and other areas of government occurred under the presidency of Bill Clinton. He seems not to have had the same anti-governmental and neoconservative motives as the privatizers of both the Reagan and Bush II eras. His policies typically involved an indifference to -- perhaps even an ignorance of -- what was actually being done to democratic, accountable government in the name of cost-cutting and allegedly greater efficiency. It is one of the strengths of Shorrock’s study that he goes into detail on Clinton’s contributions to the wholesale privatization of our government, and of the intelligence agencies in particular.

Reagan launched his campaign to shrink the size of government and offer a large share of public expenditures to the private sector with the creation in 1982 of the "Private Sector Survey on Cost Control." In charge of the survey, which became known as the "Grace Commission," he named the conservative businessman, J. Peter Grace, Jr., chairman of the W.R. Grace Corporation, one of the world’s largest chemical companies -- notorious for its production of asbestos and its involvement in numerous anti-pollution suits. The Grace Company also had a long history of investment in Latin America, and Peter Grace was deeply committed to undercutting what he saw as leftist unions, particularly because they often favored state-led economic development.

The Grace Commission’s actual achievements were modest. Its biggest was undoubtedly the 1987 privatization of Conrail, the freight railroad for the northeastern states. Nothing much else happened on this front during the first Bush’s administration, but Bill Clinton returned to privatization with a vengeance.

According to Shorrock:

"Bill Clinton… picked up the cudgel where the conservative Ronald Reagan left off and… took it deep into services once considered inherently governmental, including high-risk military operations and intelligence functions once reserved only for government agencies. By the end of [Clinton’s first] term, more than 100,000 Pentagon jobs had been transferred to companies in the private sector -- among them thousands of jobs in intelligence… By the end of [his second] term in 2001, the administration had cut 360,000 jobs from the federal payroll and the government was spending 44 percent more on contractors than it had in 1993." (pp. 73, 86)

These activities were greatly abetted by the fact that the Republicans had gained control of the House of Representatives in 1994 for the first time in 43 years. One liberal journalist described "outsourcing as a virtual joint venture between [House Majority Leader Newt] Gingrich and Clinton." The right-wing Heritage Foundation aptly labeled Clinton’s 1996 budget as the "boldest privatization agenda put forth by any president to date." (p. 87)

After 2001, Bush and Cheney added an ideological rationale to the process Clinton had already launched so efficiently. They were enthusiastic supporters of "a neoconservative drive to siphon U.S. spending on defense, national security, and social programs to large corporations friendly to the Bush administration." (pp. 72-3)

The Privatization -- and Loss -- of Institutional Memory

The end result is what we see today: a government hollowed out in terms of military and intelligence functions. The KBR Corporation, for example, supplies food, laundry, and other personal services to our troops in Iraq based on extremely lucrative no-bid contracts, while Blackwater Worldwide supplies security and analytical services to the CIA and the State Department in Baghdad. (Among other things, its armed mercenaries opened fire on, and killed, 17 unarmed civilians in Nisour Square, Baghdad, on September 16, 2007, without any provocation, according to U.S. military reports.) The costs -- both financial and personal -- of privatization in the armed services and the intelligence community far exceed any alleged savings, and some of the consequences for democratic governance may prove irreparable.

These consequences include: the sacrifice of professionalism within our intelligence services; the readiness of private contractors to engage in illegal activities without compunction and with impunity; the inability of Congress or citizens to carry out effective oversight of privately-managed intelligence activities because of the wall of secrecy that surrounds them; and, perhaps most serious of all, the loss of the most valuable asset any intelligence organization possesses -- its institutional memory.

Most of these consequences are obvious, even if almost never commented on by our politicians or paid much attention in the mainstream media. After all, the standards of a career CIA officer are very different from those of a corporate executive who must keep his eye on the contract he is fulfilling and future contracts that will determine the viability of his firm. The essence of professionalism for a career intelligence analyst is his integrity in laying out what the U.S. government should know about a foreign policy issue, regardless of the political interests of, or the costs to, the major players.

The loss of such professionalism within the CIA was starkly revealed in the 2002 National Intelligence Estimate on Iraq’s possession of weapons of mass destruction. It still seems astonishing that no senior official, beginning with Secretary of State Colin Powell, saw fit to resign when the true dimensions of our intelligence failure became clear, least of all Director of Central Intelligence George Tenet.

A willingness to engage in activities ranging from the dubious to the outright felonious seems even more prevalent among our intelligence contractors than among the agencies themselves, and much harder for an outsider to detect. For example, following 9/11, Rear Admiral John Poindexter, then working for the Defense Advanced Research Projects Agency (DARPA) of the Department of Defense, got the bright idea that DARPA should start compiling dossiers on as many American citizens as possible in order to see whether "data-mining" procedures might reveal patterns of behavior associated with terrorist activities.

On November 14, 2002, the New York Times published a column by William Safire entitled "You Are a Suspect" in which he revealed that DARPA had been given a $200 million budget to compile dossiers on 300 million Americans. He wrote, "Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every web site you visit and every e-mail you send or receive, every bank deposit you make, every trip you book, and every event you attend -- all these transactions and communications will go into what the Defense Department describes as a ‘virtual centralized grand database.’" This struck many members of Congress as too close to the practices of the Gestapo and the Stasi under German totalitarianism, and so, the following year, they voted to defund the project.

However, Congress’s action did not end the "total information awareness" program. The National Security Agency secretly decided to continue it through its private contractors. The NSA easily persuaded SAIC and Booz Allen Hamilton to carry on with what Congress had declared to be a violation of the privacy rights of the American public -- for a price. As far as we know, Admiral Poindexter’s "Total Information Awareness Program" is still going strong today.

The most serious immediate consequence of the privatization of official governmental activities is the loss of institutional memory by our government’s most sensitive organizations and agencies. Shorrock concludes, "So many former intelligence officers joined the private sector [during the 1990s] that, by the turn of the century, the institutional memory of the United States intelligence community now resides in the private sector. That’s pretty much where things stood on September 11, 2001." (p. 112)

This means that the CIA, the DIA, the NSA, and the other 13 agencies in the U.S. intelligence community cannot easily be reformed because their staffs have largely forgotten what they are supposed to do, or how to go about it. They have not been drilled and disciplined in the techniques, unexpected outcomes, and know-how of previous projects, successful and failed.

As numerous studies have, by now, made clear, the abject failure of the American occupation of Iraq came about in significant measure because the Department of Defense sent a remarkably privatized military filled with incompetent amateurs to Baghdad to administer the running of a defeated country. Defense Secretary Robert M. Gates (a former director of the CIA) has repeatedly warned that the United States is turning over far too many functions to the military because of its hollowing out of the Department of State and the Agency for International Development since the end of the Cold War. Gates believes that we are witnessing a "creeping militarization" of foreign policy -- and, though this generally goes unsaid, both the military and the intelligence services have turned over far too many of their tasks to private companies and mercenaries.

When even Robert Gates begins to sound like President Eisenhower, it is time for ordinary citizens to pay attention. In my 2006 book Nemesis: The Last Days of the American Republic, with an eye to bringing the imperial presidency under some modest control, I advocated that we Americans abolish the CIA altogether, along with other dangerous and redundant agencies in our alphabet soup of sixteen secret intelligence agencies, and replace them with the State Department’s professional staff devoted to collecting and analyzing foreign intelligence. I still hold that position.

Nonetheless, the current situation represents the worst of all possible worlds. Successive administrations and Congresses have made no effort to alter the CIA’s role as the president’s private army, even as we have increased its incompetence by turning over many of its functions to the private sector. We have thereby heightened the risks of war by accident, or by presidential whim, as well as of surprise attack because our government is no longer capable of accurately assessing what is going on in the world and because its intelligence agencies are so open to pressure, penetration, and manipulation of every kind.

If Iran is Attacking It Might Really be Israel

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By Philip Giraldi

The Benny Morris op-ed in the NYT last Friday should provide convincing evidence that Israel really really really wants an attack against Iran sooner rather than later. Morris is close to the Israeli government and his case that Iran must be bombed soon and with maximum conventional weaponry to avoid using nukes later was clearly intended to push the United States to do the attacking. The likelihood that Dick Cheney is almost certainly supportive of a US pre-emptive strike and might well be pulling strings behind the scenes, possibly without the knowledge of the Great Decider, makes the next several months particularly significant if a war is to be avoided.

Some intel types are beginning to express concerns that the Israelis might do something completely crazy to get the US involved. There are a number of possible “false flag” scenarios in which the Israelis could insert a commando team in the Persian Gulf or use some of their people inside Iraq to stage an incident that they will make to look Iranian, either by employing Iranian weapons or by leaving a communications footprint that points to Tehran’s involvement.

Those who argue that Israel would never do such a thing should think again. Israel is willing to behave with complete ruthlessness towards the US if they feel that the stakes are high enough, witness the attack on the USS Liberty and the bombing of the US Consulate in Alexandria in the 1950s. If they now believe that Iran is a threat that must be eliminated it is not implausible to assume that they will stop at nothing to get the the United States to do it for them, particularly as their air force is only able to damage the Iranian nuclear program, not destroy it.

Are You Ready to Face the Facts About Israel?

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By Paul Craig Roberts

"On October 21 (1948) the Government of Israel took a decision that was to have a lasting and divisive effect on the rights and status of those Arabs who lived within its borders: the official establishment of military government in the areas where most of the inhabitants were Arabs." - Martin Gilbert, Israel: A History

I had given up on finding an American with a moral conscience and the courage to go with it and was on the verge of retiring my keyboard when I met the Rev. Thomas L. Are.

Rev. Are is a Presbyterian pastor who used to tell his Atlanta, Georgia, congregation: "I am a Zionist." Like most Americans, Rev. Are had been seduced by Israeli propaganda and helped to spread the propaganda among his congregation.

Around 1990 Rev. Are had an awakening for which he credits the Christian Canon of St. George’s Cathedral in Jerusalem and author Marc Ellis, co-editor of the book, Beyond Occupation.

Realizing that his ignorance of the situation on the ground had made him complicit in great crimes, Rev. Are wrote a book hoping to save others from his mistake and perhaps in part to make amends, Israeli Peace/Palestinian Justice, published in Canada in 1994.

Rev. Are researched his subject and wrote a brave book. Keep in mind that 1994 was long prior to Walt and Mearsheimer’s recent book, which exposed the power of the Israel Lobby and its ability to control the explanation Americans receive about the "Israeli-Palestinian conflict."

Rev. Are begins with an account of Israel’s opening attack on the Palestinians, an event which took place before most Americans alive today were born. He quotes the distinguished British historian, Arnold J. Toynbee: "The treatment of the Palestinian Arabs in 1947 (and 1948) was as morally indefensible as the slaughter of six million Jews by the Nazis. Though nor comparable in quantity to the crimes of the Nazis, it was comparable in quality."

Golda Meir, considered by Israelis as a great leader and by others as one of history’s great killers, disputed the facts: "It was not as though there was a Palestinian people in Palestine and we came and threw them out and took their country away from them. They did not exist."

Golda Meir’s apology for Israel’s great crimes is so counter-factual that it blows the mind. Palestinian refugee camps still exist outside Palestine filled with Palestinians and their descendants whose towns, villages, homes and lands were seized by the Israelis in 1948. Rev. Are provides the reader with Na’im Ateek’s description of what happened to him, an 11-year old, when the Jews came to take Beisan on May 12, 1948. Entire Palestinian communities simply disappeared.

In 1949 the United Nations counted 711,000 Palestinian refugees.

In 2005 the United Nations Relief and Works Agency estimated 4.25 million Palestinians and their descendants were refugees from their homeland.

The Israeli policy of evicting non-Jews has continued for six decades. On June 19, 2008, the Laity Committee in the Holy Land reported in Window Into Palestine that the Israeli Ministry of Interior is taking away the residency rights of Jerusalem Christians who have been reclassified as "visitors in their own city."

On December 10, 2007, MK Ephraim Sneh boasted in the Jerusalem Post that Israel had achieved "a true Zionist victory" over the UN partition plan "which sought to establish two nations in the land of Israel." The partition plan had assigned Israel 56 percent of Palestine, leaving the inhabitants with only 44 percent. But Israel had altered this over time. Sneh proudly declared: "When we complete the permanent agreement, we will hold 78 percent of the land while the Palestinians will control 22 percent."

Sneb could have added that the 22 percent is essentially a collection of unconnected ghettos cut off from one another and from roads, water, medical care, and jobs.

Rev. Are documents that the abuse of Palestinians’ human rights is official Israeli policy. Killings, torture, and beatings are routine. On May 17, 1990, the Washington Post reported that Save the Children "documented indiscriminate beating, tear-gassing and shooting of children at home or just outside the house playing in the street, who were sitting in the classroom or going to the store for groceries."

On January 19, 1988, Israeli Defense Minister Yitzhak Rabin, later Prime Minister, announced the policy of "punitive beating" of Palestinians. The Israelis described the purpose of punitive beating: "Our task is to recreate a barrier and once again put the fear of death into the Arabs of the area."

According to Save the Children, beatings of children and women are common. Rev. Are, citing the report in the Washington Post, writes: "Save the Children concluded that one-third of beaten children were under ten years old, and one-fifth under the age of five. Nearly a third of the children beaten suffered broken bones."

On February 8, 1988, Newsweek magazine quoted an Israeli soldier: "We got orders to knock on every door, enter and take out all the males. The younger ones we lined up with their faces against the wall, and soldiers beat them with billy clubs. This was no private initiative, these were orders from our company commander.... After one soldier finished beating a detainee, another soldier called him ’you Nazi,’ and the first man shot back: ’You bleeding heart.’ When one soldier tried to stop another from beating an Arab for no reason, a fist fight broke out."

These were the old days before conscience was eliminated from the ranks of the Israeli military.

In the London Sunday Times, June 19, 1977, Ralph Schoenman, executive director of the Bertrand Russell Foundation, wrote: "Israeli interrogators routinely ill-treat and torture Arab prisoners. Prisoners are hooded or blindfolded and are hung by their wrists for long periods. Most are struck in the genitals or in other ways sexually abused. Most are sexually assaulted. Others are administered electric shock."

Amnesty International concluded that "there is no country in the world in which the use of official and sustained torture is as well established and documented as in the case of Israel."

Even the pro-Israeli Washington Post reported: "Upon arrest, a detainee undergoes a period of starvation, deprivation of sleep by organized methods and prolonged periods during which the prisoner is made to stand with his hands cuffed and raised, a filthy sack covering the head. Prisoners are dragged on the ground, beaten with objects, kicked, stripped and placed under ice-cold showers."

Sounds like Abu Gharib. There are news reports that Israeli torture experts participated in the torture of the detainees assembled by the American military as part of the Bush Regime’s propaganda onslaught to convince Americans that Iraq was overflowing with al-Qaeda terrorists. On July 23, 2008, Antiwar.com posted an Iraqi news report that the Iraqi government had released a total of 109,087 Iraqis that the Americans had "detained." Obviously, these "terrorist detainees" had been used for the needs of Bush Regime propaganda. No one will ever know how many of them were abused by Israeli torturers imported by the CIA.

Rev. Are’s book makes sensible suggestions for resolving the conflict that Israel began. However, the problem is that Israeli governments believe only in force. The policy of the Israeli government has always been to beat, kill, and brutalize Palestinians into submission and flight. Anyone who doubts this can read the book of Israel’s finest historian Ilan Pappe, The Ethnic Cleansing of Palestine (2006).

Americans are a gullible and naive people. They have been complicit for 60 years in crimes that in Arnold Toynbee’s words "are comparable in quality" to the crimes of Nazi Germany. As Toynbee was writing decades ago, the accumulated Israeli crimes might now be comparable also in quantity.

The US routinely vetoes United Nations condemnations of Israel for its brutal crimes against the Palestinians. Insouciant American taxpayers have been bled for a half century to provide the Israelis with superior military weapons with which Israelis assault their neighbors, all the while convincing America – essentially a captive nation – that Israel is the victim.

John F. Mahoney wrote: "Thomas Are reminds me of Dietrich Bonhoeffer: an active pastor who comes to the unsettling realization that he and his people have been fed a terrible lie that is killing and torturing thousands of innocent men, women and children. Not without ample research and prayer does such a pastor, in turn, risk unsettling his congregation. The Reverend Are has done his homework and, I suspect, has prayed often and long during the writing of this courageous book."

Bonhoeffer was a Lutheran theologian and pastor who was executed for his active participation in the German Resistance against Nazism.

Professor Benjamin M. Weir, San Francisco Theological Seminary, wrote: "This book will make the reader squirm. It asks you to lend your voice in behalf of the voiceless."

Americans who can no longer think for themselves and who are terrified of disapproval by their peer group are incapable of lending their voices to anyone except those who control the world of propaganda in which they live.

The ignorance and unconcern of Americans is a great frustration to my friends in the Israeli peace movement. Without outside support those Israelis who believe in good will are deprived, by America’s support for their government’s policy of violence, of any peaceful resolution of a conflict began in 1947 by Israeli aggression against unsuspecting Palestinian villages.

Rev. Are wrote his book with the hope that the pen is mightier than the sword and that facts can crowd out propaganda and create a framework for a just resolution of the Palestinian issue. In his concluding chapter, "What Christians Can Do," Rev. Are writes: "We cannot allow others to dictate our thinking on any subject, especially on anything as important as Christian faithfulness, which is tested by an attitude towards seeking justice for the oppressed. It’s a Christian’s duty to know."

Duty, of course, has costs. Rev. Are writes: "Speak up for the Palestinians and you will make enemies. Yet, as Christians, we must be willing to raise issues that until now we have chosen to dodge."

More than a decade later, President Jimmy Carter, a true friend of Israel, tried again to awaken Americans’ moral conscience with his book, Palestine: Peace Not Apartheid. Carter was instantly demonized by the Israel Lobby.

Sixty years of efforts by good and humane people to hold Israel accountable have so far failed, but they are more important today than ever before. Israel has its captive American nation on the verge of attacking Iran, the consequences of which could be catastrophic for all concerned. The alleged purpose of the attack is to eliminate nonexistent Iranian nuclear weapons. The real reason is to eliminate all support for Hamas and Hezbollah so that Israel can seize the entire West Bank and southern Lebanon. The Bush regime is eager to do Israel’s bidding, and the media and evangelical "Christian" churches have been preparing the American people for the event.

It is paradoxical that Israel is demonstrating that veracity lies not in the Christian belief in good will but in Lenin’s doctrine that violence is the effective force in history and that the evangelical Christian Zionist churches agree

House Committee Considers the "I" Word

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By John Nichols

As the House Judiciary Committee took up the question of how best to address what its chairman described as "the Imperial Presidency of George W. Bush," it was one of the ranking Republicans in the room, Iowa Congressman Steve King, who observed that, "We are here having impeachment hearings before the Judiciary Committee."

"These are impeachment hearings before the United States Congress," King continued. "I never imagined I would ever be sitting on this side when something like this happened."

King was not happy about the circumstance.

A resolute defender of President Bush and Vice President Cheney, the congressman was objecting to the very mention of the "I" word.

As it happened, impeachment was mentioned dozens of times during the hearing, often in significant detail and frequently as a necessary response to lawless actions of the president and vice president.

King’s statement addressed the uncertain character of Friday morning’s attempt by the relevant committee of the chamber empowered by the founders to impose accountability on presidents and vice presidents to tackle what Judiciary Committee chair John Conyers, D-Michigan, referred to as "numerous credible allegations of serious misconduct by officials in the Bush Administration."

Conyers explained that "to the regret of many, this is not an impeachment hearing." For that to happen, Conyers argued, the committee would need clearer authorization from the full House.

But members of the committee, the Democrats and the Republicans, as well as a bipartisan panel of House members and another panel of former House members, and academics and activists, repeatedly put the impeachment on the table of a chamber where the speaker had once denied it a place.

Congressman Maurice Hinchey, D-New York, told the committee that President Bush and Vice President Cheney had committed acts that make theirs "the most impeachable administration in the history of our country."

Texas Democrat Sheila Jackson-Lee, held up a copy of the Constitution and announced, "There is a real question of whether this Constitution is being protected."

Republican members of the committee griped. Indiana Congressman Mike Pence complained that the entire session – with its discussion not just of impeachment but of legislative initiatives to address executive secrecy and overreach – caused him to worry about "the criminalization of American politics."

Addressing his remarks to Ohio Democrat Dennis Kucinich, the author of articles of impeachment against President Bush and Vice President Cheney that provoked Friday’s hearing, Pence said, "I just believe the gentleman from Ohio is wrong."

Kucinich, who is not a member of the Judiciary Committee, stood his ground, arguing when he addressed the committee that a failure to impeach would not merely let Bush off the hook but signal to future presidents that they, too, may reject the rule of law and refuse to cooperate with Congress.

Several members of the committee were, if anything, more passionate in their remarks than Kucinich.

Georgia Democrat Hank Johnson told his colleagues that if they failed to act and President Bush authorized an illegal attack on Iran, they might look back on their dismissal on the neglect of their duty to check and balance an errant executive as a deadly mistake.

It was that sense of urgency that motivated committee member Tammy Baldwin, D-Wisconsin, to say explain that, "What this Congress does, or chooses not to do in furthering the investigation of the serious allegations against this administration – and if just cause is found, to hold them accountable – will impact the conduct of future presidents, perhaps for generations."

"Mr. Chairman," Baldwin continued, "there are those who would say that holding this hearing – examining whether or not the president and vice president broke the law – is frivolous. I not only reject this, I believe there is no task more important for this Congress than to seriously consider whether our nation’s leaders have violated their oath of office. The American public expects no less. It is, after all, their Constitution. No president or congress has the authority to override that document, whereby ‘We the People’ conferred upon the branches of government limited and defined power, and provided for meaningful checks and balances."

There can be no question at this late date in the Bush presidency that the issue of whether the American system will be characterized by "meaningful checks and balances" is at stake – and that goes to the heart of the matter of why Friday’s hearing ought not be the end of a process but a beginning.

Even after George Bush and Dick Cheney have left the White House, the definition of the presidency that they have crafted will remain.

"On January 20, 2009, the next president and vice president of the United States will stand before the American people and take an oath of office, swearing to ‘… preserve, protect and defend the Constitution of the United States.’ This commitment and obligation is so fundamental to our democracy that our nation’s founders prescribed that oath in our Constitution. They also provided for the removal of the president and vice president for, among other things, ‘high crimes and misdemeanors,’" Baldwin explained to the committee. "Presidents and vice presidents do not take that oath in a vacuum. They are informed by the actions or inactions of past presidents and congresses, who establish precedents for the future."

It is in the power of the Congress to begin setting the precedent to which Baldwin addressed herself. That power was defined by the framers of the Constitution, as were the practices and procedures to be used in executing it.

With that in mind, Baldwin correctly outlined the next steps for a committee and a Congress that has begun to place not just the matter of impeachment but the broader question of the imperial presidency on the table but that certainly has not completed the process"

(The) American people have been forced to sit by while credible allegations of abuse of power mount:

• We have seen this Administration fabricate the threat of Iraqi weapons of mass destruction and allege, despite all evidence to the contrary, a relationship between Iraq and al Qaeda. These lies dragged our country into a preemptive and unjustified war that has taken the lives of more than 4,000 U.S. troops, injured 30,000 more, and will cost our nation more than a trillion dollars.

• We watched as this Administration again undermined national security by manipulating and exaggerating evidence of Iran’s nuclear weapons capabilities and openly threatened aggression against Iran, despite no evidence that Iran has the intention or capability of attacking the U.S.

• We have looked on in horror as the Administration suspended habeas corpus by claiming the power to declare any person an "enemy combatant" – ignoring the Geneva Convention protections that the U.S. helped create.

• We have seen torture and rendition of prisoners in violation of international law and stated American policy and values, and destruction of the videotaped evidence of such torture, under the tenure of this Administration.

• We have seen this Administration spy on Americans without a court order or oversight in violation of the Fourth Amendment.

• We watched as U.S. Attorneys pursued politically-motivated prosecutions in violation of the law and perhaps at the direction of this White House.

• We watched as Administration officials outed Valerie Plame Wilson as a covert agent of the CIA and then intentionally obstructed justice by disseminating false information through the White House press office.

As we know, the framers of our Constitution called for impeachment only in the case of high crimes and misdemeanors. The standard is purposely set high because we should not impeach for personal or political gain – only to uphold and safeguard our democracy. Sadly, in my judgment, at least two high ranking administration officials have met that standard. Although the call to impeach is one I take neither easily nor lightly, I now firmly believe that impeachment hearings are the appropriate and necessary next step."

Impeachment backers gear up for hearing

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By Sabrina Eaton

Impeachment backers including anti-war protester Cindy Sheehan and Republican constitutional law scholar Bruce Fein held a press conference this afternoon in anticipation of tomorrow’s House Judiciary Committee hearing on the "imperial presidency" of George W. Bush and possible legal responses to it.

While Judiciary Committee Chairman John Conyers of Michigan is not billing the hearing as an effort to impeach Bush, Cleveland Democratic Rep. Dennis Kucinich will attend to make his impeachment case before the committee.

Kucinich has introduced several measures to impeach Bush and Vice President Dick Cheney, but they have not moved forward because of opposition from House of Representatives leaders. Kucinich told his supporters in e-mail this week that he’ll present a petition to the Judiciary Committee "bearing the names of thousands of citizens who believe ... that the Bush Administration has committed high crimes and misdemeanors in total disregard for their Constitutional obligations."

Fein, who served as a deputy U.S. Attorney General under President Reagan, and Sheehan, who is running for Congress as an independent against House Speaker Nancy Pelosi, accused Congress of cowardice for not moving forward to impeach Bush.

Fein said Bush has grabbed powers he was never intended to have -- like the ability to order torture, electronic surveillance and interrogation in secret prisons -- and attacked Congress for letting him get away with it.

"It doesn’t matter if the country goes to hell in a handbasket as long as Democrats are steering the Titanic when it sinks," said Fein.

Sheehan accused Democrats of serving the same corporate special interests as Republicans, and said she was afraid tomorrow’s hearing "is just a dog and pony show to pander to the people who have been working so hard for peace and accountability."

"They are throwing us a bone," she continued. "They expect us to take it like good dogs with a pat on our heads from the master and swallow, once again, their bile. Well, I’m not going to swallow it."

Sheehan said Bush should not only be impeached but "dragged out of my White House and thrown in the Hague" because "he is clearly a war criminal. It is about time an American president paid for those kinds of crimes."

Asked what the hearing would achieve if Bush isn’t impeached, impeachment activist David Swanson -- a former press secretary for Kucinich -- said it would "achieve a degree of public education" and may open the door to further demands for impeachment.

"It’s a process," Swanson said. "Most impeachment movements have obtained a great degree of justice and accountability far short of getting to impeachment."

"This is going to give the public hope," added Cynthia Papermaster, of the National Impeachment Network. "It tells them that it’s possible."

Using Law to Justify Torture

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By Daphne Eviatar

Constitutional Scholars Say Advice of Counsel Is Probably Not a Strong Defense

For months now, Atty. Gen. Michael Mukasey has refused to investigate whether Bush administration officials committed war crimes by authorizing the torture of suspected terrorists. His reasoning? Any actions were authorized by the administration’s lawyers, and so cannot constitute a crime. As he wrote to Rep. John Conyers (D-Mich.), one of 56 House Democrats who last month called on Mukasey to appoint a special counsel: “It would be both unwise and unjust to expose to possible criminal penalties those who relied in good faith on ... prior Justice Department opinions.”

But can the alleged use of torture be so easily waived away? Since the so-called “war on terror” began, the Bush administration has, by its own admission, used "enhanced interrogation techniques" like forcing detainees to stand for 40 hours; simulated drowning and dousing detainees' naked bodies with cold water in chilled prison cells. Former Defense Secretary Donald Rumsfeld formally approved the use of "stress positions," attack dogs, sexual humiliation and physical violence. And these are just the officially sanctioned techniques the public knows about.

As the photos and written accounts of torture, sodomy and murder at Abu Ghraib have revealed, the American public may only know a limited amount when it comes to abuse of detainees in U.S. custody. Indeed, Human Rights First in 2006 found that in the previous four years, at least eight U.S. prisoners had been tortured to death

The Democrats’ call for an independent investigation has received little attention – perhaps because the Justice Dept. has consistently denied that policymakers could be culpable. After all, they were acting on the advice of legal counsel.

Indeed, evidently anticipating the Democrats' charges, in 2002 the White House, Justice and Defense Departments began creating a paper trail of legal memos in the hopes of insulating their actions. Thus the infamous “torture memos,” written by former Justice Dept. lawyers John Yoo and Jay Bybee, were drafted to define torture narrowly – and were careful not to rule it out. Last week, the legal commentator Stuart Taylor Jr. accepted Mukasey’s position without question. Taylor wrote in Newsweek that there was no sense in prosecuting government officials. President George W. Bush, Taylor argued, should pardon everyone; the matter of culpability should be dropped.

But do the administration’s legal memos put the matter to rest? Does soliciting a set of self-serving opinions actually shield senior government officials from prosecution?

Probably not, according to many constitutional scholars and lawyers. Indeed, the Justice Dept. itself would never accept, on face value, any suspected criminal’s defense that he had been relying on advice of counsel. Rather, legal experts say, that advice must have been a reasonable interpretation of the law, based on a thorough knowledge of the facts, and provided before the suspect acted. So when it comes to policymakers authorizing torture, the administration’s defense appears to fail on all grounds.

First, without an investigation establishing who advised whom, of what and when, we don’t even know if Mukasey’s claim is true. Sure, the White House has turned over legal memos written by the Justice Dept.’s Office of Legal Counsel. But at least 17 other memos, including the most recent, have not been released, on the basis of attorney-client privilege.

“We don’t know what these memoranda say,” said Scott Horton, a human-rights lawyer and professor at Hofstra Law School. “The ones operative now have not yet become public. We know that they go to the really rough stuff.” That includes "the harshest interrogation techniques ever used by the Central Intelligence Agency," according to a New York Times report on a 2005 OLC memo.

For the Justice Dept. now to claim that an “advice of counsel” defense eliminates even the need to investigate is disingenuous at best. “Typically, in a white-collar case, DOJ is going to look to challenge your assertion that you have a viable ‘advice of counsel’ defense every way possible,” said a prominent criminal-defense attorney, who doesn’t want to be named because he frequently squares off against the Justice Dept. That means a suspect must reveal what he told his lawyer, and what his lawyer told him. In other words, he waives the attorney-client privilege that the government is now invoking.

Even if it turns out a lawyer did sanction criminal conduct, no one gets a pass by saying they relied blindly on that advice. The reliance has to be reasonable. “They would have to subjectively believe what they were doing was not against the law,” said Michael Ratner, president of the Center for Constitutional Rights.

Could any U.S. official have reasonably believed torture was legal? “Given the history of the U.S. adherence to the U.N. Torture Convention, it’s a well-established fact that torture is unlawful,” stated Amrit Singh, a lawyer for the ACLU, who has sued the Defense Dept. to obtain documents regarding the treatment of prisoners. “To then plead innocence based on legal advice would eviscerate the whole purpose of these laws.”

The United States has even codified the international ban on torture into federal law, providing for the death penalty when the torture turns fatal. Notably, by March 2005 more than 108 prisoners in Iraq and Afghanistan had died in U.S. custody, most of them violently, according to government data provided to the Associated Press.

The United States is also a signatory to the torture prohibitions of the Geneva Conventions. These apply “not only to prisoners of war, but to all prisoners,” said Singh, a position the Supreme Court affirmed in the Hamdan case in 2006. The Geneva Conventions also outlaw “humiliating or degrading treatment.”

Not surprisingly, then, government officials have strongly disagreed about the legality of extreme interrogation techniques, like waterboarding. February 2003 memos from the Judge Advocate General’s Corps to the Pentagon opposed them unequivocally. A report last month by the Justice Dept.’s inspector general described White House meetings where the controversial methods were hotly debated.

“Many people in the government were nervous or upset about implementing the president’s post-9/11 counterterrorism policies,” writes Jack Goldsmith, head of OLC from October 2003 to June 2004, in his book, "The Terror Presidency: Law and Judgment Inside the Bush Administration." That included some in the CIA “who were reportedly anxious about the special interrogation program for high-value detainees.”

John Rizzo, acting general counsel of the CIA in 2002, confirmed this in Congressional testimony last year. "There had been some concerns that were expressed" by CIA interrogators who feared prosecution, he said.

After Goldsmith took over OLC, he rescinded the now-infamous Aug. 1, 2002 “torture memo” that defined torture as inflicting pain as intense as "the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." The memo refused to rule out such torture for interrogation purposes.

“The message of the Aug. 1, 2002 opinion was clear,” writes Goldsmith. “Violent acts aren’t necessarily torture; if you do torture, you probably have a legal defense; and even if you don’t have a legal defense, the law doesn’t apply if you act under color of presidential authority.”

The CIA had been through this before. Most notoriously in 1975, when the Senate's Church Committee, headed by Sen. Frank Church, publicly scrutinized and penalized the agency for using illegal methods. So CIA officials desperately wanted what Goldsmith calls the “golden shield” to protect them from future prosecution -- which they hoped the torture memos would provide.

It turns out, with good reason. New Yorker writer Jane Mayer, in her new book, "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals," writes that the International Committee of the Red Cross issued a secret report to the CIA concluding that interrogation techniques it had used on suspected Al Qaeda members, dating back to before August 2002, were “categorically” torture and “constituted war crimes, placing the highest officials in the U.S. government in jeopardy of being prosecuted."

One such case involves the 2002 interrogation of Qaeda operative Abu Zubaydah, whom the administration has admitted was subjected to waterboarding. Former Atty. Gen. John Ashcroft acknowledged the problematic timing of the Zubaydah interrogation just last week, when he testified to the Judiciary Committee that Zubaydah was likely mistreated months before such actions were legally sanctioned. According to Mayer, Zubaydah told the Red Cross that he was waterboarded "at least 10 times in a single week and as many as three times a day."

“I think the evidence is quite strong that the torture program began almost immediately after 9-11,” said Ratner of the CCR. “So the memos don’t help them there.”

In fact, if lawyers wrote the memos approving torture techniques at the request of officials who had already used them, the lawyers themselves could be guilty of conspiring to commit war crimes. “If the lawyer’s opinion is seriously wrong," said Horton, "then the lawyer risks being tied into the criminal conduct.”

Indeed, after World War II, the U.S. military tribunal at Nuremberg prosecuted a group of German lawyers who had advised the Nazis on its wartime policies -- including the treatment of prisoners. “They were held criminally liable," said Horton, "on account of legal advice they gave.”

Lawyers are still held criminally accountable today. For example, Horton noted, the Justice Dept. is now prosecuting a prominent attorney in Miami, whose clients have included former Vice President Al Gore, for allegedly approving payments of legal fees that derived from illicit drug proceeds.

But legal experts say that authorizing torture rises to a whole other level of criminality. “The prohibition on torture is not just one rule among others, but a legal archetype – a provision which is emblematic of our larger commitment to non-brutality in the legal system,” Jeremy Waldron, professor of law and philosophy at New York University Law School, wrote in the Columbia Law Review.

That’s certainly how it was viewed in the Nuremberg era. As the U.S. Supreme Court wrote in 1944: “There have been, and are now, certain foreign nations with governments ... which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.”

Massive Economic Disaster Seems Possible -- Will Survivalists Get the Last Laugh?

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By Scott Thill

They used to be paranoid preparation nuts who built bomb shelters for a place to duck and cover during nuclear dustups with communist heathens, but their tangled roots go back to the Great Depression for a reason. If you want to get sociological about it, survivalism started out as a response to economic catastrophe. And now, with a cratering stock market, a housing meltdown that has devalued everything in sight, and skyrocketing prices for food, gas and pretty much everything else, survivalists are preparing for -- and are prepared for -- the rerun. In fact, they may be the only people in America feeling good about the prospects of a major crash.

And the interesting thing about the once-fringe movement at this moment in history is that survivalism has now gone green -- at least in theory.

From peak oil and food crises all the way to catastrophic payback from that bitch Mother Earth, there are more reasons to hide than ever. Conventional society as we know it is already undergoing some disastrous transformations. Ask anyone ducking fires in California, floods in the Midwest or bullets in Baghdad. Maybe it didn’t make sense to run for the hills, stockpile water and food, grow your own vegetables and drugs, or unplug from consumerism back when America’s budget surplus still existed, its armies weren’t burning up all the nation’s revenue and its infrastructure wasn’t being outsourced to a globalized work force.

But those days are gone, daddy, gone.

What’s coming up is weirder. Author, social critic and overall hilarious dude James Kunstler tackled that weirdness, otherwise known as an incoming post-oil dystopia, in his recent novel, World Made by Hand, which has since become one of a handful of survivalist classics. And as Kunstler sees it, whether you are talking about gun nuts or green pioneers, at least you are talking.

"At least they’re aware that we’ve entered the early innings of what could easily become a very disruptive period of our history," the Clusterfuck Nation columnist explains. "Most of them are responding constructively rather than just defensively. They’re much more interested in gardening and animal husbandry than firearms."

Not that the gun nuts have gone away. Their ranks have just diversified.

"The gun nuts have been on the scene longer than the peak oil argument has been in play," he adds. "They were initially preoccupied with Big Government and its accompanying narrative fantasy of fascist oppression, which is why they adopted a fascist tone themselves. But peak-oil survivalists are different from the Ruby Ridge generation. They don’t think that a bolt-hole in the woods is a very promising strategy. We have no idea at this point what the level of social cohesion or disorder may be, but if the rural areas, especially the agricultural centers, become too lawless for farming, then we’ll be in pretty severe trouble because there will be nothing for us to eat."

That’s not on the to-do list of author and SurvivalBlog owner James Rawles, who has been getting asked more and more questions by a mainstream press finally waking to the consequences of disaster capitalism, climate crisis and the hyperreal dream of bottomless consumption. He has fielded questions from the New York Times, and he has taken an online beating from conscientious pubs like Grist, but he hasn’t gone Hollywood. The times, which are a-changin’, have caught up to him.

"There is greater interest in preparedness these days because the fragility of our economy, lengthening chains of supply and the complexity of the technological infrastructure have become apparent to a broader cross section of the populace," Rawles wrote to me via e-mail (but only after asking how many unique monthly visitors AlterNet commanded). "All parties concerned may not realize it, but the left-of-center greens calling for local economies and encouraging farmers markets have a tremendous amount in common with John Birchers decrying globalist bankers and gun owners complaining about their constitutional rights. At the core, for all of them, is the recognition that big, entrenched, centralized power structures are not the answer. They are, in fact, the problem."

Fair enough. But that broad brush fails to recognize the complexities of the very community it is purporting to try to establish. Indeed, difference is what survivalists seem to be running from, whether it is historically the difference between blacks and whites, secularists and true believers, or simply the haves and have-nots. It is that latter crowd that the survivalists seem most worried about. Their separation from society at large is arguably a retreat from community rather than a striving toward it.

"I’d say that survivalism is indeed a celebration of community," Rawles asserts. "It is the embodiment of America’s traditional can-do spirit of self-reliance that settled the frontier."

But that’s also a generalization, especially when one considers that the word "settled" is a coded reduction for a "near-genocidal wipeout of the frontier’s native populations," most if not all of whom were perfecting a survivalist ethic by maximizing their skill sets and living in symbiosis with the land that provided them what they needed in food, tools and medicine. In fact, those settlements would have been hard-pressed to exist without what Rawles earlier described as a "centralized power structure," known as the expansionist United States government and its military, paving the road forward. Each self-reliant mythology carries within it grains of complicity in the community at large, which is a fancy way of saying there’s nowhere to run, baby, nowhere to hide.

This is especially true today in our hyperreal, hyperconsuming 21st century, where survivalism has become more of a gadget fantasy than an earnest grasp for community.

"It seems a natural human impulse that we are hard-wired to follow as circumstances require," Kunstler says, "although it is constrained by social and cultural conditioning. To some degree, in our consumer culture, survivalism is related to the gear fetishism you see in popular magazines that purport to be about sporting adventures, but are really about acquiring snazzy equipment. America in 2008 has become a cartoon culture of Hollywood violence that promotes grandiose power fantasies of hyper-individualism and vigilante justice. Add guns and economic hardship, and spice it up with ethnic grievances, and the recipe is not very appetizing."

This future cultural, environmental and geopolitical miasma is where the survivalist and the mainstream converge in agreement. Both camps, pardon the pun, are convinced that we’re screwed down the road.

"The next Great Depression will be a tremendous leveler," Rawles prophesies. "If anything, life in the 22nd century will more closely resemble the 19th century than the 20th century. Sadly, the 21st century will probably be remembered as the time of the Great Die-Off."

"I don’t consider it a total wipeout," Kunstler counters. "It’s a very big change, but people are resilient and resourceful. Look, imagine if you were a person who had survived the Second World War in Europe, and you were walking around Berlin in the spring of 1946, a year after the end of the war. A once-magnificent city has been reduced to rubble. Your culture is lying in ashes. Yet, people pick up and rebuild."

That is, if they’re sticking together. If they’re scattered and fending for themselves, and taking armed retreat defense tips from SurvivalBlog, that makes rebuilding a bit more complicated. Which, in the end, is where survivalism is most ambiguous. Is it a growing population of forward-looking realists who are smartly preparing for the die-off brought on by climate crisis and economic collapse, so they can pick up themselves and their people, and rebuild with that "can-do" spirit, as Rawles calls it? Or are they simply gadget-fascinated fundamentalists afraid of change and challenge, so afraid that they’d rather hide and hoard than join the fight?

The jury is still out. But, according to Rawles, it will soon have its diversity mirrored by survivalism’s changing demographic.

"I think that in the next couple of decades," he explains, "we will witness the formation of some remarkable intentional communities that will feature some unlikely bedfellows: anarchists and Ayn Rand readers, Mennonites and gun enthusiasts, Luddites and techno-geeks, fundamentalist Christians and Gaia worshippers, tree huggers and horse wranglers. We welcome them all. Because the threats are clearly manifold: peak oil, derivatives meltdowns, pandemics, food shortages, market collapses, terrorism, state-sponsored global war and more. In a situation this precarious, I believe that it is remarkably naive to think that mere geographical isolation will be sufficient to shelter communities from the predation of evildoers."

How Should the Next President Deal with the Bush White House's Crimes?

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By Amy Goodman

Amy Goodman:The dominant role of corporations is one of a number of issues fueling skepticism around the 2008 campaign. Criticism has also mounted recently over presumptive Democratic nominee Barack Obama’s perceived shift to the right.

In an apparent reversal, Obama backed a new bill authorizing the Bush administration’s domestic spy program and granting immunity for the telecom companies that took part. He also supported a Supreme Court decision to overturn a D.C. handgun ban. On foreign policy, Obama said he’d be open to revise his pledge to withdraw US troops from Iraq and also called for a major increase to the size of the US occupation of Afghanistan. And like all top Democratic leaders, Obama has refused to support calls for the prosecution of President Bush and top White House officials for war crimes and other abuses of power.

The criticism of Obama’s stances has come as part of a larger debate over whether efforts to hold the Bush administration accountable would jeopardize an ostensibly higher goal of ensuring a Democratic win this November.

I’m joined right now, in addition to Glenn Greenwald, who blogs at Salon.com, the legal scholar by Cass Sunstein, who’s an informal adviser to Barack Obama, professor at Harvard University and the University of Chicago Law School. He is co-author of the book Nudge: Improving Decisions About Health, Wealth, and Happiness and is cited as one of the most-cited legal scholars in the country.

Cass Sunstein, your response to those who talk about -- particularly concerned about Barack Obama, for example, shifting on the FISA bill, saying he would filibuster and now actually voting for the bill that granting retroactive immunity to the telecoms.

Sunstein: Yes, I think it’s -- this is widely misunderstood. What the bill isn’t is basically a bill that -- whose fundamental purpose is to give immunity. It’s a bill that creates a range of new safeguards to protect privacy, to ensure judicial supervision, to give a role for the inspector general. So it actually gives privacy and civil liberties a big boost over the previous arrangement.

It also does contain an immunity provision, which Senator Obama opposed. He voted for the substitute bill that didn’t have that. But he thought that this was a compromise which had safeguards for going forward, which made it worth supporting on balance, compared to the alternative, which was the status quo. So there’s been no fundamental switch for him. He’s basically concerned with protecting privacy. And this is not his favorite bill, but it’s a lot better than what the Bush administration had before, which was close to free reign.

Goodman: Glenn Greenwald, you’ve written a lot about this, as well.

Greenwald: Well, you know, it’s one thing to defend Senator Obama and to support his candidacy, as I do. It’s another thing to just make factually false claims in order to justify or rationalize anything that he does.

The idea that this wasn’t a reversal is just insultingly false. Back in December, Senator Obama was asked, "What is your position on Senator Dodd’s pledge to filibuster a bill that contains retroactive immunity?" And at first, Senator Obama issued an equivocal statement, and there were demands that he issue a clearer statement. His campaign spokesman said -- and I quote -- "Senator Obama will support a filibuster of any bill that contains retroactive immunity" -- "any bill that contains retroactive immunity." The bill before the Senate two weeks ago contained retroactive immunity, by everybody’s account, and yet not only did Senator Obama not adhere to his pledge to support a filibuster of that bill, he voted for closure on the bill, which is the opposite of a filibuster. It’s what enables a vote to occur. And then he voted for the underlying bill itself. So it’s a complete betrayal of the very unequivocal commitment that he made not more than six months ago in response to people who wanted to know his position on this issue in order to decide whether or not to vote for him. That’s number one.

Number two, the idea that this bill is an improvement on civil liberties is equally insulting in terms of how false it is. This is a bill demanded by George Bush and Dick Cheney and opposed by civil libertarians across the board. ACLU is suing. The EFF is vigorously opposed. Russ Feingold and Chris Dodd, the civil libertarians in the Senate, are vehemently opposed to it; they say it’s an evisceration of the Fourth Amendment. The idea that George Bush and Dick Cheney would demand a bill that’s an improvement on civil liberties and judicial oversight is just absurd. This bill vests vast new categories of illegal and/or unconstitutional and warrantless surveillance powers in the President to spy on Americans’ communications without warrants. If you want to say that that’s necessary for the terrorist threat, one should say that. But to say that it’s an improvement on civil liberties is just propaganda.

Goodman: Cass Sunstein?

Sunstein: Well, I appreciate the passion behind that statement. I don’t see it that way. And Morton Halperin, who’s been one of the most aggressive advocates of privacy protections in the last decades, is an enthusiastic supporter of this bill on exactly the ground that I gave. My reading of it, just as a legal matter, is that it ensures exclusivity of the FISA procedure, which the Bush administration strongly resisted, it creates supervision both on the part of the inspector general and the legal system, which the Bush administration had said did not exist previously. So the view that this is an improvement over the Bush administration status quo, I believe, is widely accepted by those who have studied the bill with care.

I do appreciate the concern about retroactive immunity. Senator Obama did oppose that, voted for the opposing bill. But I don’t share the extreme negativity about this compromise that the speaker endorses.

Goodman: Glenn Greenwald?

Greenwald: Well, again, Senator Obama made a promise and then betrayed it. The idea that the bill is an improvement on civil liberties, like I said, is demonstrated by the fact that all civil libertarians, virtually across the board, vigorously oppose it and are suing over it. And I think --

Goodman: Glenn Greenwald, let me move on to another issue, and that is the issue of holding Bush administration officials accountable. This is also an issue, Professor Sunstein, that you addressed this weekend in Austin at the Netroots Nation conference. And on Friday, the House Judiciary Chair John Conyers is going to be holding a hearing around the issue of impeachment, with those for and against impeachment speaking through the day. Your assessment of the whole movement and your thoughts on this, Cass Sunstein?

Sunstein: Well, I speak just for myself and not for Senator Obama on this, but my view is that impeachment is a remedy of last resort, that the consequences of an impeachment process, a serious one now, would be to divide the country in a way that is probably not very helpful. It would result in the presidency of Vice President Cheney, which many people enthusiastic about impeachment probably aren’t that excited about. I think it has an understandable motivation, but I don’t think it’s appropriate at this stage to attempt to impeach two presidents consecutively.

In terms of holding Bush administration officials accountable for illegality, any crime has to be taken quite seriously. We want to make sure there’s a process for investigating and opening up past wrongdoing in a way that doesn’t even have the appearance of partisan retribution. So I’m sure an Obama administration will be very careful both not to turn a blind eye to illegality in the past and to institute a process that has guarantees of independence, so that there isn’t a sense of the kind of retribution we’ve seen at some points in the last decade or two that’s not healthy.

Goodman: I recently spoke to Democratic Senator Russ Feingold of Wisconsin, who’s been a leading congressional voice against the Bush spy program. This is some of what he had to say.

Sen. Russ Feingold: The President takes the position that under Article II of the Constitution he can ignore the Foreign Intelligence Surveillance Act. We believe that that’s absolutely wrong. I have pointed out that I think it is not only against the law, but I think it’s a pretty plain impeachable offense that the President created this program, and yet this immunity provision may have the effect not only of giving immunity to the telephone companies, but it may also allow the administration to block legal accountability for this crime, which I believe it is.

Goodman: Cass Sunstein?

Cass Sunstein: Well, there has been a big debate among law professors and within the Supreme Court about the President’s adherent authority to wiretap people. And while I agree with Senator Feingold that the President’s position is wrong and the Supreme Court has recently, indirectly at least, given a very strong signal that the Supreme Court itself has rejected the Bush position, the idea that it’s an impeachable offense to adopt an incorrect interpretation of the President’s power, that, I think, is too far-reaching. There are people in the Clinton administration who share Bush’s view with respect to foreign surveillance. There are past attorney generals who suggested that the Bush administration position is right. So, I do think the Bush administration is wrong -- let’s be very clear on that -- but the notion that it’s an impeachable offense seems to me to distort the notion of what an impeachable offense is. That’s high crimes and misdemeanors. And an incorrect, even a badly incorrect, interpretation of the law is not impeachable.

Goodman: Glenn Greenwald?

Glenn Greenwald: You know, I think this mentality that we’re hearing is really one of the principal reasons why our government has become so lawless and so distorted over the past thirty years. You know, if you go into any courtroom where there is a criminal on trial for any kind of a crime, they’ll have lawyers there who stand up and offer all sorts of legal and factual justifications or defenses for what they did. You know, going back all the way to the pardon of Nixon, you know, you have members of the political elite and law professors standing up and saying, "Oh, there’s good faith reasons not to impeach or to criminally prosecute." And then you go to the Iran-Contra scandal, where the members of the Beltway class stood up and said the same things Professor Sunstein is saying: we need to look to the future, it’s important that we not criminalize policy debates. You know, you look at Lewis Libby being spared from prison.

And now you have an administration that -- we have a law in this country that says it is a felony offense, punishable by up to five years in prison and a $10,000 fine, to spy on Americans without the warrants required by law. We have a president who got caught doing that, who admits that he did that. And yet, you have people saying, "Well, there may be legal excuses as to why he did that." Or you have a president who admits ordering, in the White House, planning with his top aides, interrogation policies that the International Red Cross says are categorically torture, which are also felony offenses in the United States. And you have people saying, "Well, we can’t criminalize policy disputes."

And what this has really done is it’s created a two-tiered system of government, where government leaders know that they are free to break our laws, and they’ll have members of the pundit class and the political class and law professors standing up and saying, "Well, these are important intellectual issues that we need to grapple with, and it’s really not fair to put them inside of a courtroom or talk about prison." And so, we’ve incentivized lawlessness in this country. I mean, the laws are clear that it’s criminal to do these things. The President has done them, and he -- there’s no reason to treat him differently than any other citizen who breaks our laws.

Goodman: You’ve also, Glenn Greenwald, written about the President possibly granting preemptive pardons to officials involved in controversial counterterrorism programs.

Greenwald: Yeah, I think that’s right. And you already see members of the right -- the New York Times reported about a week ago that certain right-wing legal analysts were already demanding that he issue a full-scale pardon of all members -- of all participants in these illegal detention and surveillance programs. And that’s one of the interesting parts about what Senator Obama just did in supporting telecom amnesty, is that those lawsuits that exist, I mean, that were proceeding along, were really our only real avenue for finding out what the government did.

I think one critical thing here is that, you know, last year, James Comey, who was the number two person at the Justice Department, testified before Congress that they discovered that certain surveillance activities that the administration was engaged in, not what we end up knowing about, but other activities, were so patently illegal that the entire top level of the Justice Department had threatened to resign en masse unless it stopped immediately. And President Bush ordered that it continue for another forty-five days, even once he was told that, and it went on for two-and-a-half years.

We don’t know what that is. Those lawsuits are really the only way that we would have found out and that there would have been a legal accountability, but because of telecom immunity, those lawsuits are now going to terminate, those crimes are likely to be covered up, and President Bush can simply issue pardons that would prevent any future administrations, Senator Obama’s or anyone else’s, from investigating it and vindicating the rule of law in this country. And that’s what made it such a corrupt measure.

Goodman: Professor Sunstein, your response to Glenn Greenwald on the whole accountability issue? Also, one of the things you[’ve] raised [is that] going after the Bush administration could start a cycle of criminalizing public service.

Sunstein: Right. We’re talking about some pretty serious issues here, and I think it’s good to distinguish among various ones. So, are we in favor of immunizing people who worked in the White House in the last eight years from accountability for criminal acts? I don’t think anyone should be in favor of that. We’re in agreement on the need to hold people accountable for criminal wrongdoing.

Then there’s a second question, which is the impeachment question, which is analytically very different.

Then there’s a third issue, which involves pardons. For the President to issue a preemptive pardon of all illegality on the part of those involved in his administration would be intolerable, and the political retribution for that should be extreme. I expect the President won’t do that.

With respect to holding people accountable, the first things that’s needed is sunlight. Justice Brandeis, the Supreme Court justice, said sunlight is the best of disinfectants. So I agree very much that we want clarity with respect to what’s been done. It’s important to think, not in a fussy way, but in a way that ensures the kind of fairness our system calls for. It’s important to distinguish various processes by which we can produce accountability. I don’t believe the courtroom is the exclusive route. Congress is our national lawmaker, and there are processes there that could have a bipartisan quality. There are also commissions that can be created, commissions that can try to figure out what’s happened, what’s gone wrong and how can we make this better.

When I talk about a fear of criminalizing political disagreement, I don’t mean to suggest that we shouldn’t criminalize crimes. Crimes are against the law, and if there’s been egregious wrongdoing in violation of the law, then it’s not right to put a blind eye to that. So I guess I’m saying that emotions play an important role in thinking about what the legal system should be doing. But under our constitutional order, we go back and forth between the emotions and the legal requirements, and that’s a way of guaranteeing fairness. And as I say, very important to have a degree of bipartisanship with respect to subsequent investigations.

Goodman: You’re cited as the most often cited legal scholar in the country. Yesterday, the military commissions trial began at Guantanamo, first time since World War II. Your take?

Sunstein: Well, I’d be honored but surprised if the military commissions cite some of my academic articles. In terms of military commissions, there’s traditional nervousness in our system about holding people criminally to be tried in a not-an-ordinary tribunal, so there’s reason for nervousness about that. I think any military commission, the first requirement is to ensure that the fundamental ingredients of American justice are included -- that is, a right to a lawyer, a right to an impartial tribunal, a right to confront contrary evidence. We don’t want any convictions that don’t fit with all of our fundamentals.

Goodman: We’re going to come back to talk about your book Nudge , but I want to give Glenn Greenwald a final comment on this issue.

Greenwald: You know, it’s interesting, about the military commissions, yesterday a military judge presiding over the military commission of the individual accused of being Osama bin Laden’s driver, Salim Hamdan, ruled that certain evidence was inadmissible, because it was obtained by what he called, quote, "highly coercive conditions" while he was captive in Afghanistan. And so, you know, we don’t need to say things like "if there was serious wrongdoing." We know that there was serious wrongdoing and serious illegality on the part of the Bush administration. But Congress, unfortunately, hasn’t done its duty to investigate or oversight; what they’ve done instead is immunize the law-breaking and protect it and retroactively legalize it. And that’s why courtrooms, unfortunately, are the only place where real judicial accountability can occur. That’s where criminals are tried under a system of rule of law, is in a courtroom. And there’s no reason to exempt the political class from that critical principle.