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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.”
Sunday, July 27, 2008
Massive Economic Disaster Seems Possible -- Will Survivalists Get the Last Laugh?
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By Scott Thill
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
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.
Former "Bush Puppet" Iraqi PM Calls for US Withdrawal
Go to Original
By Maya Schenwar
Dr. Ayad Allawi, the former interim Iraqi prime minister previously referred to even by US Congress members as a "Bush puppet," voiced his strong support for a US withdrawal timeline during a Wednesday Congressional hearing.
By Maya Schenwar
Dr. Ayad Allawi, the former interim Iraqi prime minister previously referred to even by US Congress members as a "Bush puppet," voiced his strong support for a US withdrawal timeline during a Wednesday Congressional hearing.
During his term in office, from June 2004 to April 2005, Allawi endorsed the US’s controversial bombings of Fallujah and echoed Bush’s speeches almost word for word in many of his own statements; The Washington Post reported that Bush administration officials coached Allawi on the content of his public comments. Prior to his involvement in the US-backed, post-invasion Iraqi government, Allawi worked with the CIA.
Yet, on Wednesday, Allawi blatantly called for "a time frame for reduction of US forces," a statement that stands in stark contrast to the hazy, deadline-less "time horizon" recently advocated by President Bush. Allawi stressed that the Iraqi people’s wishes should take precedence in any agreement on the future of the American presence in Iraq.
"Most importantly, [the security agreement] should be transparent and get the approval of the Iraqi Parliament and people," he testified.
He emphasized the need to develop Iraq’s political, military and economic sovereignty. This is of special significance because, since the advent of the occupation, the US has substantially altered Iraq’s economic structures to favor American interests.
"We are concerned about the protection of Iraqi assets from foreign creditors," Allawi said.
He also spoke of the need for Iraq to cooperate closely with powers other than the US, like the Arab League and the United Nations.
According to Raed Jarrar, the Iraq consultant for the American Friends Service Committee, Allawi’s words are not a total surprise: The politician had lately been moving toward a more nationalist approach. This movement is gaining steam, according to Jarrar.
"[Allawi] is forming a political front with other Sunnis, Shiites, seculars and Christians who are against partitioning Iraq and for ending all types of foreign interventions," Jarrar said.
What’s more, Allawi’s turnaround comes as the latest in a series of anti-occupation statements by Bush-backed Iraqi politicians. Even current Prime Minister Nouri al-Maliki recently expressed his hope for a timely US pullout, telling presidential candidate Barack Obama that he favors a 2010 withdrawal date.
"Huge public pressure" is a major factor in the politicians’ changing sentiments, according to Jarrar, especially since election season is nearing in Iraq.
On the American side, despite a largely antiwar public opinion, some prominent political figures are steadfast in their opposition to a deadline. Wednesday’s hearing featured foreign policy experts from both sides of the withdrawal debate, including Danielle Pletka of the neoconservative American Enterprise Institute. Pletka countered Allawi’s call to consider Iraqi public opinion, saying that American commanders should be given full authority to decide the course of the US military presence in the coming years.
"[The] conduct of war and the protection of our national security is not a popularity contest," Pletka said. "Mob rule does not decide how a President deploys troops in his role as commander in chief, nor how the Congress allocates money with its power of the purse."
Yet, despite the influence of conservative think tanks, there’s a growing sentiment among experts that the US must listen to Iraq in determining its future role there. Steven Kull, director of the Program on International Policy Attitudes at the University of Maryland, urged a sense of "respect for the Iraqi government." According to Kull, that means deferring to Iraq’s wishes, whether the Bush administration likes it or not.
"Convincingly sending the message that the US will only be in Iraq as long as the government wants it to be is central," Kull said in testimony on Wednesday. "It is clear that the Iraqi people are quite eager for the US to lighten its military footprint in Iraq. More importantly, it appears that they are eager to regain their sense of sovereignty. As long as they do not have this sense, they are likely to continue to have a fundamentally hostile attitude toward all aspects of the US presence in Iraq."
Tuesday, July 8, 2008
Trailer Graveyards Haunt FEMA, Neighbors
Go to Original
By Pam Fessler
After high formaldehyde levels were found in travel trailers used to house the victims of Hurricane Katrina, the federal government said it would use them again only if it had no other choice.
By Pam Fessler
After high formaldehyde levels were found in travel trailers used to house the victims of Hurricane Katrina, the federal government said it would use them again only if it had no other choice.
Which raises the question — what should be done with the almost 100,000 trailers now sitting idly at sites around the country, at a cost to the government of $130 million a year?
It looks as though most could end up being sold for scrap.
Herd Of White Elephants
Wanda Phillips of Purvis, Miss., wants the trailers gone. Her property is across the road from one of several staging areas that FEMA set up right after Hurricane Katrina almost three years ago. Thousands of empty trailers are still stored there, row after row, baking in the sun.
"There’s trailers, I would say, within 150 feet of my house," says Phillips.
Phillips says the site used to be an open field with a lake and longhorn steer. Now, she says, there’s just a herd of white elephants.
And they’ve caused her plenty of trouble. She says the first problem was traffic — hundreds of large trucks each day delivering and picking up trailers for hurricane victims.
"You couldn’t get in and out. They parked in the front yard, parked on our grass, parked on the root system of our trees," says Phillips.
But that was nothing, she says, compared with what followed — insomnia, headaches, coughs and sinus problems. At first, she thought it was all the dust in the air. So she decided to move temporarily to a plot of land she owns elsewhere in the state.
But Phillips made a mistake. She bought a used FEMA trailer to live in.
"And I got worse. I mean, I really.... I just thought I was sick before. I really got worse," she says.
So Phillips decided that if she was going to be sick anyway, she might as well move back home.
And then she recalls sitting on the living room floor one day when her husband tossed her the newspaper and said "Look at this."
"I reached and picked it up off the carpet and I looked at it, and I said, ’Oh my God,’ " she remembers. "I said, ’There’s formaldehyde in those trailers. What is formaldehyde?’ "
And that was just the start.
Since then, Phillips has spent months collecting documents and government reports and making her own stink in an effort to get rid of the trailers. She has joined thousands of Gulf Coast residents who have complained about formaldehyde fumes and are suing the federal government.
Cool, Dry, Clean
FEMA has acknowledged that formaldehyde can be a health problem for people living in some trailers, but it has not said the same for people living near storage sites.
The agency says the ongoing litigation has stalled its efforts to dispose of the more than 94,000 travel trailers it now has sitting — empty and unused — around the country.
Almost a third are in Mississippi.
For Mike Miller, FEMA’s field coordinator in Mississippi, the trailers offered a solution to a problem.
"When some folks look at these trailers, they see formaldehyde. When I look at them, I see a cool, dry, clean place for a family to live until they can get established," he says.
Miller drives along a dirt road that cuts through the staging area right across from Phillips’ yard. Most of the trailers stored here look as though they’re in fairly good shape, although there are several burned-out units, the remnants of household — and meth lab — accidents.
Miller says the trailers served their purpose in the hectic days after Hurricane Katrina, housing more than 120,000 families. But now, he says, he’d be as happy as anyone — if not more so — to see them gone.
"Our job out here in the field is to work ourselves out of a job. But, right now, that’s not taking place, so we’re in caretaker status and making sure we have good security and a good program to maintain the grounds and the units here," he says.
Millions Of Dollars
Taking care of the empty trailers costs money — $28 million a year, just in Mississippi.
FEMA had been selling the trailers but stopped last year because of the concerns about formaldehyde.
Miller says he’s heard a lot of jokes since about what to do with the trailers, such as using them to build a border fence with Mexico. But he thinks taxpayers — who spent about $3 billion to buy trailers and mobile homes after Hurricane Katrina — would be better served if the sales resumed.
He says those who want to buy the trailers aren’t worried about formaldehyde, because most of them want them for part-time recreational use.
"We got folks, hundreds of folks that are calling us wanting us to buy these units. And over the months, probably thousands of folks," he says. "We had one gentleman come in. He wanted to buy 10,000."
Miller’s not sure why, but he suspects it was to house oil field or construction workers.
But what might make sense on the front lines doesn’t always make sense at headquarters.
"What we don’t want to do is provide travel trailers that have high formaldehyde values and sell that to somebody who may end up living in that unit. We’ve decided that we’re not going to take that chance," says David Garrett, FEMA’s deputy assistant administrator for disaster assistance. "We think the safest thing to do is to dispose of these things in a way that may not be a danger to anybody in the future."
And that means selling them for scrap. Garrett says some units might still be sold to individuals, but only after they’ve been tested to see if they’re safe.
Meanwhile, the Centers for Disease Control and Prevention is also looking at whether air filters or something else can be used to make the trailers safe.
MIT FEMA Trailer Challenge
Besides the thousands of units still occupied or sold to individuals, over 7,000 trailers were donated as government surplus to states and nonprofits to be used as police mobile command centers or other temporary facilities.
One of those surplus trailers has ended up in a small lot on the campus of MIT in Cambridge, Mass.
Lecturer Jae Rhim Lee plans to use this trailer for a course she’s teaching this fall. And for a campuswide competition called the MIT FEMA Trailer Challenge.
"People will develop solutions to what do you do with these thousands of surplus trailers," she says.
Lee is reluctant to prejudge the outcome of the competition. She doesn’t want to stifle anyone’s creativity. But, she says, the trailers could be used as mobile health centers or environmental testing labs — something to help people such as Wanda Phillips and others who think they got the raw end of the trailer deal.
Lee says she plans to present the winning ideas to FEMA, hopefully before all the other trailers have been sold for scrap.
Maliki Stunner: He Wants US Pullout Timetable
Go to Original
By Robert Dreyfuss
The long-running showdown over the proposed US-Iraq treaty, aimed at legitimizing the American occupation of Iraq, is coming to a head, and it doesn't look good for the United States.
Prime Minister Nouri al-Maliki tossed a bombshell today. In a news conference about the still-secret US-Iraqi talks, which began in March, Maliki for the first time said that the chances of securing the pact are just about nil, and instead he said Iraq will seek a limited, ad hoc renewal of the US authority to remain in Iraq, rather than a broad-based accord.
More important, Maliki and his top security adviser, Mouwaffak al-Rubaie added that Iraq intends to link even a limited accord to a timetable for the withdrawal of US forces. Reports the Sydney Morning Herald:
Iraqi Prime Minister Nuri al-Maliki raised the prospect of setting a timetable for the withdrawal of US troops as part of negotiations over a new security agreement with Washington.
It was the first time the US-backed Shi'ite-led government has floated the idea of a timetable for the removal of American forces from Iraq. The Bush administration has always opposed such a move, saying it would benefit militant groups.
[UPDATE July 8: Rubaie was even stronger today: "There should not be any permanent bases in Iraq unless these bases are under Iraqi control. ... We would not accept any memorandum of understanding with (the US) side that has no obvious and specific dates for the foreign troops' withdrawal from Iraq."]
Here's the quote from Maliki:
"The current trend is to reach an agreement on a memorandum of understanding either for the departure of the forces or a memorandum of understanding to put a timetable on their withdrawal."
Don't think for a minute that Maliki, or his Shiite allies, want the US forces to leave. But they are under a lot of pressure. First of all, they are under pressure from Iran, whose regime remains the chief ally of the ruling alliance of Shiites, including Maliki's Dawa party and the powerful Islamic Supreme Council of Iraq (ISCI), led by Abdel Aziz al-Hakim. Iran's goal is to neutralize Iraq as a possible threat to Iran, and Iran's leaders are pressuring Maliki and Hakim to loosen their reliance on the United States. Interestingly, Maliki reportedly told President Bush personally, in a video teleconference on Friday, that the United States cannot use Iraqi territory to attack Iran, and he added that "fomenting tension in the region and pushing for military action against Tehran could wreak havoc on the entire region, including Iraq."
Maliki is also under pressure from a broad coalition of Iraqi nationalists, from angry, disenfranchised Sunnis to Muqtada al-Sadr's movement.
But Maliki's statement is a big deal. At a minimum, it presents an enormous problem for Bush and John McCain, who are arguing for an indefinite US stay in Iraq til "victory," and who oppose a timetable. True, Maliki seems to be linking his timetable to Iraqi military success, which is not too different from the Bush-McCain formula. But inside Iraq, the pressure is building day by day for a US withdrawal, and Maliki is by no means in control of the process. The fact that both Iran and Sunni nationalists, who are on a collision course, agree that US forces need to leave Iraq, only means that pro- and anti-Iranian factions will settle their differences (either by peaceful diplomacy or by violence) once the United States is gone.
Another factor is that Maliki, who is visiting the United Arab Emirates, is working hard to gain the support of the Sunni-led Arab regimes for his shaky coalition. The UAE and Jordan have both announced that they will be sending ambassadors to Baghdad, and King Abdullah of Jordan will himself make a visit to Baghdad soon, the first by an Arab head of state since the US invasion.
Despite US bungling, it seems increasingly likely that Iran and Saudi Arabia are working behind the scenes to negotiate a Shiite-Sunni accord in Iraq, but both Tehran and Riyadh will want it conditioned on a US withdrawal.
By Robert Dreyfuss
The long-running showdown over the proposed US-Iraq treaty, aimed at legitimizing the American occupation of Iraq, is coming to a head, and it doesn't look good for the United States.
Prime Minister Nouri al-Maliki tossed a bombshell today. In a news conference about the still-secret US-Iraqi talks, which began in March, Maliki for the first time said that the chances of securing the pact are just about nil, and instead he said Iraq will seek a limited, ad hoc renewal of the US authority to remain in Iraq, rather than a broad-based accord.
More important, Maliki and his top security adviser, Mouwaffak al-Rubaie added that Iraq intends to link even a limited accord to a timetable for the withdrawal of US forces. Reports the Sydney Morning Herald:
Iraqi Prime Minister Nuri al-Maliki raised the prospect of setting a timetable for the withdrawal of US troops as part of negotiations over a new security agreement with Washington.
It was the first time the US-backed Shi'ite-led government has floated the idea of a timetable for the removal of American forces from Iraq. The Bush administration has always opposed such a move, saying it would benefit militant groups.
[UPDATE July 8: Rubaie was even stronger today: "There should not be any permanent bases in Iraq unless these bases are under Iraqi control. ... We would not accept any memorandum of understanding with (the US) side that has no obvious and specific dates for the foreign troops' withdrawal from Iraq."]
Here's the quote from Maliki:
"The current trend is to reach an agreement on a memorandum of understanding either for the departure of the forces or a memorandum of understanding to put a timetable on their withdrawal."
Don't think for a minute that Maliki, or his Shiite allies, want the US forces to leave. But they are under a lot of pressure. First of all, they are under pressure from Iran, whose regime remains the chief ally of the ruling alliance of Shiites, including Maliki's Dawa party and the powerful Islamic Supreme Council of Iraq (ISCI), led by Abdel Aziz al-Hakim. Iran's goal is to neutralize Iraq as a possible threat to Iran, and Iran's leaders are pressuring Maliki and Hakim to loosen their reliance on the United States. Interestingly, Maliki reportedly told President Bush personally, in a video teleconference on Friday, that the United States cannot use Iraqi territory to attack Iran, and he added that "fomenting tension in the region and pushing for military action against Tehran could wreak havoc on the entire region, including Iraq."
Maliki is also under pressure from a broad coalition of Iraqi nationalists, from angry, disenfranchised Sunnis to Muqtada al-Sadr's movement.
But Maliki's statement is a big deal. At a minimum, it presents an enormous problem for Bush and John McCain, who are arguing for an indefinite US stay in Iraq til "victory," and who oppose a timetable. True, Maliki seems to be linking his timetable to Iraqi military success, which is not too different from the Bush-McCain formula. But inside Iraq, the pressure is building day by day for a US withdrawal, and Maliki is by no means in control of the process. The fact that both Iran and Sunni nationalists, who are on a collision course, agree that US forces need to leave Iraq, only means that pro- and anti-Iranian factions will settle their differences (either by peaceful diplomacy or by violence) once the United States is gone.
Another factor is that Maliki, who is visiting the United Arab Emirates, is working hard to gain the support of the Sunni-led Arab regimes for his shaky coalition. The UAE and Jordan have both announced that they will be sending ambassadors to Baghdad, and King Abdullah of Jordan will himself make a visit to Baghdad soon, the first by an Arab head of state since the US invasion.
Despite US bungling, it seems increasingly likely that Iran and Saudi Arabia are working behind the scenes to negotiate a Shiite-Sunni accord in Iraq, but both Tehran and Riyadh will want it conditioned on a US withdrawal.
The JFK Assassination and 9/11: the Designated Suspects in Both Cases
Go to Original
By Peter Dale Scott
The Consequences of the CIA’s Withholding of Evidence
The CIA, Oswald, and Al-Mihdar: Suppression of Vital Records
Conclusion
By Peter Dale Scott
Global Research recently published my essay entitled 9/11, Deep State Violence and the Hope of Internet Politics In this article, I argue that 9/11 should be analyzed as a deep event (an event not fully aired or understood because of its intelligence connections) and above all as one of a series of deep events which from time to time have frustrated peace initiatives or become pretexts for war.
In support of this overall thesis I pointed to features of 9/11 which recalled similar deep events: the still not fully understood outbreak of the Korean War in 1950, the JFK assassination, and the so-called Second Tonkin Gulf Incident of 1964 (an alleged attack on U.S. destroyers which we now know never happened).
The similarities between these deep events which have disturbed American history since World War Two suggest that they are not just a sequence of unrelated external accidents, but at least in part the product of some on-going deep indigenous force not yet adequately understood.
In this series of deep events, perhaps the most striking similarities are between the JFK assassination (henceforward referred to as "JFK") and 9/11. Earlier talks and articles I have delivered on this topic are developed even further in my forthcoming much expanded reissue of my early book, The War Conspiracy. As The War Conspiracy: JFK, 9/11, and the Deep Politics of War, it is due to be published by the Mary Ferrell Foundation Press in August 2008.
The following essay is the concluding section of the new book, and has never hitherto been published.]
I wish to summarize again the first striking similarity between 11/22/63 and of 9/11/01: the dubious detective work on those two days. Less than fifteen minutes after the President’s assassination, the height and weight of Kennedy’s alleged killer was posted.
In the case of Oswald, within fifteen minutes of the assassination and long before Oswald was picked up in the Texas Theater, Inspector Sawyer of the Dallas police put out on the police radio network, and possibly other networks, a description of the killer – "About 30, 5’10", 165 pounds."
3 As noted, this height and weight exactly matched the measurements attributed to Lee Harvey Oswald in Oswald’s FBI file, and also in CIA documents about him.4The announced height and weight were however different from Oswald’s actual measurements, as recorded by the Dallas police after his arrest: 5’9 1/2", 131 pounds.
5 More importantly, there is no credible source for the posted measurements from any witness in Dallas. (The witness said to have spotted him, Howard Brennan, failed to identify Oswald in a line-up.)6 This leaves the possibility that the measurements were taken from existing files on Oswald, rather than from any observations in Dallas on November 22. If so, someone with access to those files may have already designated Oswald as the culprit, before there was any evidence to connect him to the crime.A similar situation pertains to the alleged hijackers on 9/11. For example, shortly afterwards men in Saudi Arabia complained that "the hijackers’ `personal details’" released by the FBI -- "including name, place, date of birth and occupation -- matched their own."
7 One of them, Saeed al-Ghamdi, claimed further that an alleged photograph shown on CNN (of an alleged Flight 93 hijacker with the same name) was in fact a photograph of himself. He speculated "that CNN had probably got the picture from the Flight Safety flying school he attended in Florida."8If the above information is accurate, then the details posted by the FBI and CNN about the alleged hijackers cannot have derived from the events of 9/11, with which the survivors in Saudi Arabia would appear to have been uninvolved. Once again this leaves the strong possibility that the details were taken from existing files, rather than from empirical observations on September 11.
9And some of the hijackers, like Lee Harvey Oswald, may have been in CIA files for a special reason: because the CIA had an operational interest in them.
Internal CIA Evidence of Operational Interest in Oswald and the Hijackers
I have speculated that Oswald, like the al-Qaeda trainer Ali Mohamed, might have been a double agent reporting to the FBI about the terrorist group (Alpha 66) with which some law enforcement officers associated him.
I would like now to discuss more unequivocal evidence, from internal CIA records, about an operational
CIA interest in first Oswald and later two of the alleged al-Qaeda hijackers, Nawaz al-Hazmi and Khalid al-Mihdar. In 2001 as in 1963 the CIA inexplicably withheld information about the subjects from the FBI, which ought categorically to have received it. The anomalies are extreme.This is now easy to show in the case of Oswald. On October 10, 1963, six
weeks before the assassination of John F. Kennedy, CIA Headquarters sent out two messages about Oswald, a teletype to the FBI, State, and Navy, and a cable to the chief of the CIA’s Mexico City station. Both messages contained false and mutually contradictory statements, and also withheld known facts of great potential importance.
10 The teletype to the FBI withheld the obviously significant information that Oswald had reportedly met in Mexico City with a Soviet Vice-Consul, Valeriy Kostikov, who was believed by CIA officers to be an officer of the KGB.11One CIA officer, Jane Roman, helped draft both messages. In 1995 she was confronted by two interviewers with irrefutable evidence that she had signed off on erroneous information about Oswald in the CIA cable to Mexico City. After much questioning, she finally admitted, "I’m signing off on something I know isn’t true." One of the interviewers, John Newman, then asked her, "‘Is this indicative of some sort of operational interest in Oswald’s file?’ ‘Yes,’ Roman replied. ‘To me it’s indicative of a keen interest in Oswald held very closely on the need-to-know basis.’" She later repeated, "I would think there was definitely some operational reason to withhold it [the information at CIA headquarters on Oswald], if it was not sheer administrative error, when you see all the people who signed off on it."
12Other CIA officers withheld important information from the FBI in January 2000, with respect to Khalid al-Mihdar, who would later be identified as one of the al-Qaeda hijackers on September 11, 2001. The NSA overheard on a Yemeni telephone about a meeting in Malaysia which al-Mihdar would attend, along with Tewfiq bin Attash, the mastermind of the fatal attack on the USS Cole.
13 It notified the CIA but not the FBI. In consequence[Khalid al-Mihdar’s] Saudi passport – which contained a visa for travel to the United States – was photocopied [in Qatar] and forwarded to CIA headquarters. The information was not shared with FBI headquarters until August 2001. An FBI agent detailed to the Bin Ladin unit at the CIA attempted to share this information with colleagues at FBI Headquarters. A CIA desk officer instructed him not to send the cable with this information. Several hours later, this same desk officer drafted a cable distributed solely within CIA alleging that the visa documents had been shared with the FBI.
14Lawrence Wright, reviewing this and other significant anomalies, reported in
The Looming Tower the belief among FBI agents following bin Laden "that the agency was protecting Mihdar and [his companion, the alleged 9/11 hijacker Nawaz al-] Hazmi because it hoped to recruit them," or alternatively that "the CIA was running a joint venture with Saudi intelligence" using al-Mihdhar and al-Hazmi.15 Wright himself speculated in a companion essay he wrote for The New Yorker that "The CIA may also have been protecting an overseas operation and was afraid that the F.B.I. would expose it."16The Consequences of the CIA’s Withholding of Evidence
As just noted, the CIA, in its teletype to the FBI of October 10, 1963, withheld the information that Oswald had reportedly met with a KGB officer, Valeriy Kostikov. Former FBI Director Clarence Kelley in his memoir later complained that this failure to inform the FBI was the major reason why Oswald was not put under surveillance on November 22, 1963.
17 In other words, the withholding enabled Oswald to play whatever role he played on that fateful day, even if it was only to become a designated patsy.FBI officials are even more bitter about the consequences of the withholding of information about al-Mihdar:
They didn’t want the bureau meddling in their business – that’s why they didn’t tell the FBI….They purposely hid from the FBI, purposely refused to tell the bureau that they were following a man in Malaysia who had a visa to come to America….And that’s why September 11 happened. That is why it happened….They have blood on their hands. They have three thousand deaths on their hands.
18But the CIA withheld information from the FBI about bin Attash (already the subject of a criminal investigation) as well, even when asked by an FBI agent, Ali Soufan, about bin Attash and the Malaysia meeting. According to Wright,
The agency did not respond to his clearly stated request. The fact that the CIA withheld information about the mastermind of the
Cole bombing and the meeting in Malaysia, when directly asked by the FBI, amounted to obstruction of justice in the death of the seventeen American sailors."19In late August 2001, only days before 9/11, FBI agent Steve Bongardt, complaining about the CIA’s withholding of information about al-Mihdar, correctly predicted in an angry email to the CIA’s bin Laden unit that "someday someone will die."
20
The CIA’s Dishonest Efforts to Cover-Up
From the moment Congress, in the 1970s, began to evince an interest in the Kennedy assassination, former CIA officer David Phillips became a vigorous defender of the CIA’s performance. With respect to false information about Oswald in CIA cables both to and from Mexico City (where Phillips was in charge of Cuban affairs for the CIA station), Phillips’s first response was to dismiss Oswald as "a blip" of no interest.
21A similar defense of the CIA’s failure to act on al-Mihdar was offered to the Congressional Joint Inquiry into 9/11 by the Director of the CIA’s Counterterrorism Center, Cofer Black: "I think that month we watchlisted about 150 people."
22 The same defense was offered by Dale Watson, the FBI’s former counterterrorism chief:There were a lot of red flags prior to 9/11….So it’s a mass of information and it’s a sea of threats, and it’s like working against a maze. If you know where the end point of a maze is, it’s certainly easier to work your way back to the starting point than trying to go through the maze and sort out all the red flags.
23The problem with this excuse is that both Oswald and al-Mihdar were singled out for special CIA attention, not left floating in a sea of red flags. The cable to Mexico City which Jane Roman signed off on was not handled routinely, it was sent for signature to the CIA’s Assistant Deputy Director for Plans, Thomas Karamessines. And in the case of al-Mihdar in Malaysia, back in 2000
CIA leaders were so convinced about the potential significance of the al Qaeda meeting in Malaysia, they not only set up surveillance of it, but provided regular updates to the FBI director [Louis Freeh], the head of the CIA [George Tenet], and the national security advisor [Samuel Berger].
24That Freeh and Berger were being notified at the top about the Malaysia meeting (at the same time that the regular FBI bureaucracy was being cut out) is confirmed in accounts by Terry McDermott and Philip Shenon.
25CIA officials testified falsely to congressional committees with respect to both Oswald and al-Mihdar. James Angleton was asked by the staff of the House Select Committee on Assassinations about a memoir written by the CIA’s station chief in Mexico City, Win Scott, and later personally retrieved for the Agency after Scott’s death by Angleton himself. Angleton testified that Scott’s "manuscript was fictional and did not include a chapter on Oswald." In fact, according to Jefferson Morley, "The only surviving manuscript is clearly nonfictional and does have a chapter on Oswald."
26Both George Tenet and Cofer Black testified before the Congressional Joint Inquiry into 9/11 that the FBI
had been granted access to the information linking al-Mihdar and Tewfiq bin Attash (alias Khallad), the mastermind of the Cole bombing. The 9/11 Commission, after a lengthy review of the matter, concluded "this was not the case."27The CIA, Oswald, and Al-Mihdar: Suppression of Vital Records
That the CIA regards its relationship to the suspects Oswald and al-Mihdar as sensitive is further illustrated by its suppression of vital evidence with respect to both. Although in the 1990s all government agencies were required by law to submit their Oswald-related documents to the Assassination Records Review Board, the CIA has been vigorously resisting pressure to do this in the case of former CIA officer George Joannides. In 1963 Joannides was the case officer for AMSPELL, the CIA’s operation in support of the Cuban exile group DRE (Directorio Revolucionario Estudiantil). In August 1963 the DRE was in contact with Oswald and participated with him in a radio broadcast which was later distributed with CIA help throughout Latin America.
28According to Jefferson Morley, "four decades after the fact, the most important AMSPELL records are missing from CIA archives – perhaps intentionally." Monthly reports on DRE activities were filed by CIA case officers Ross Crozier and William Kent, and these records were declassified by the ARRB for the periods September 1960-November 1962 and after May 1964.
But the board was unable to locate any monthly AMSPELL reports from December 1962 to April 1964. There was a seventeen-month gap in the AMSPELL records, which coincided exactly with the period in which George Joannides handled the group.
29With respect to 9/11, all that is known about suppression so far has to do with the public record. Here it is striking that the Report of the Joint Inquiry by Congress into 9/11 has one glaring redaction of twenty-eight pages, dealing with "sources of foreign support for some of the September 11
th hijackers while they were in the United States." Press reports have specified that this refers to Saudi money which reached al-Mihdar and al-Hazmi in 2000 while they were in San Diego. According to committee cochair Senator Bob Graham,The draft contained a twenty-eight page passage that detailed evidence that Saudis in the United States – Saudi government "spies," Graham called them – had provided financial and logistical support to [al-Mihdar and al-Hazmi] while they lived in Southern California.
30Similarly the 9/11 Commission failed to deal with the information on an FBI "hijacker timeline" that al-Mihdar and al-Hazmi were met at the airport on their first arrival in the United States by Omar al-Bayoumi, the transmitter of the Saudi funds, whom Graham claimed was obviously "a low-ranking Saudi intelligence agent."
31 The FBI findings were leaked in an early story in Newsweek:At the airport, they were swept up by a gregarious fellow Saudi, Omar al-Bayoumi, who had been living in the United States for several years. Al-Bayoumi drove the two men to San Diego, threw a welcoming party and arranged for the visitors to get an apartment next to his. He guaranteed the lease, and plunked down $1,550 in cash to cover the first two months’ rent.
32One month later, "In January 2003, Graham and the other members of the committee were …the focus of a criminal investigation by the FBI into whether someone on the panel had leaked classified information."
33The 9/11 Commission avoided this sensitive area. It cited the FBI Chronology a total of 52 times in its footnotes, for example at 493n55, concerning al-Mihdar’s travel from Yemen to the Malaysian meeting. But it suppressed the FBI’s report that al-Bayoumi met al-Mihdar and al-Hazmi on their arrival; and it substituted what Shenon calls an "improbable tale" supplied by al-Bayoumi himself: namely, that he had run into the two men two weeks later by accident "at a halal food restaurant" near Los Angeles.
34It is clear that two members of the 9/11 Commission staff who redacted this part of the report – Dietrich Snell and Philip Zelikow – were concerned to tone down what junior staffers considered to be "explosive material" on the Saudis.
35 Shenon tells how this section of the 9/11 report was rewritten by Snell and Zelikow, until the text "removed all of the most serious allegations against the Saudis."36But Snell and Zelikow may have been protecting the CIA as well as the Saudis. We have already noted how Lawrence Wright, looking at the extraordinary CIA record on withholding information about al-Mihdar and al-Hazmi, concluded, "It is also possible, as some FBI investigators suspect, the CIA was running a joint venture with Saudi intelligence."
37Conclusion
It is clear, as everyone who has studied these matters closely and impartially concurs, that there have been cover-ups of the CIA’s relationships to first Oswald and later al-Mihdar – cover-ups which in both cases have not yet been adequately resolved.
A reasonable conclusion from the available evidence is that the cover-ups were in order to conceal prior CIA operational interest in the designated subjects, just as in the case of Ali Mohamed in the early 1990s. It could of course be a coincidence that people of operational interest to the CIA became designated subjects in the deep events of JFK and 9/11. Another, more disturbing possibility is that those responsible for these events knew of the CIA’s operational interest, and exploited it in such a way as to ensure that the government would be embarrassed into covering up what really happened on those days.
A lot of books about 9/11, including my own, have focused on the roles played by Bush, Cheney, and Rumsfeld on that day. But it is clear that 9/11 involved a USG connection to at least one figure (Ali Mohamed) so sensitive that it had been covered up from the time of the Nosair murder in 1990 and the first World Trade Center bombing in 1993. It is probable that Oswald’s covert USG connections also dated back to the time of his strange release from the U.S. Marine Corps in 1959, enabling him to travel to the Soviet Union.
38In short there is a substratum of covert operations underlying both events that antedates the presidencies in which they occurred. Thus one should not expect the cover-up of 9/11 in the G.W. Bush administration to dissipate simply because the Democrats take over the White House, just as the Johnson administration’s cover-up of the Kennedy assassination did not dissipate with the election of Richard Nixon.
39This is said not out of despair, but out of belief in the ultimate resilience and good sense of the American people. The analysis in this book is that America’s involvement in two disastrous wars – first Vietnam and later Iraq – was not an outcome of the people’s will, but rather in large part because of deep events that were used to manipulate that will. Thus this analysis is not an attack on America, but on that manipulative mindset that has twice succeeded in maneuvering America into war.
This dominant mindset is not restricted to intelligence agencies, though it is largely rooted there. Over time it has spread into other parts of government, and has also corrupted large sections of the media and even universities. That the mindset is widespread does not however make it either omnipotent or invincible.
It is important to identify the dominant mindset clearly, if we are ever going to displace it. It is important also to recognize that the dark topics discussed in this book are not representative of America as a whole. In the half century since the CIA’s first adventures in Burma and Laos, America has continued to be, as in the two centuries before it, a source of life-enhancing innovations, such as the computer and the internet.
As Amy Chua has written in her book
Day of Empire,If America can rediscover the path that has been the secret to its success since its founding and avoid the temptations of empire building, it could remain the world’s hyperpower in the decades to come – not a hyperpower of coercion and military force, but a hyperpower of opportunity, dynamism, and moral force.
40I have tried to suggest in this book that the key to this rediscovery is the
identification and displacement of the manipulative forces that have maneuvered America, almost unsuspectingly, into two unnecessary and disastrous wars.
If there is any merit to my analysis, then, to isolate those forces, we must press for the truth about both the Kennedy assassination and 9/11.
NOTES
1
Transcript of Dallas Police Channel Two, 12:44 PM; cf. Channel One 12:45 PM,http://mcadams.posc.mu.edu/dpdtapes/; Warren Report 5, 17 Warren Commission Hearings 397, 23 Warren Commission Hearings 916.
2
Clarke, Against All Enemies, 13-14. The list of 19 names, accepted without question by the 9/11 Commission Report, was given by the FBI to the press on September 14, 2001 (Daily Telegraph, September 15, 2001,http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2001/09/15/whunt15.xml).
3
Transcript of Dallas Police Channel Two, 12:44 PM; cf. Channel One 12:45 PM,http://mcadams.posc.mu.edu/dpdtapes/; Warren Report 5, 17 Warren Commission Hearings 397.
4
E.g. Dallas FBI Report from John Fain, May 12, 1960, 17 Warren Commission Hearings 704, NARA 157-10006-10213 ("Height: 5’10" Weight: 165 lbs." [inaccurate description supplied by Marguerite Oswald]); CIA HQ Cable DIR 74830 to Mexico City, 10 Oct 1963, NARA 104-10015-10048, reproduced in John Newman, Oswald and the CIA (New York: Carroll & Graf, 1995), 512 ("five feet ten inches, one hundred sixty five pounds").5
Fingerprint card dated "11-25-63," 17 Warren Commission Hearings 308.6
Warren Report 5, 144; Sylvia Meagher, Accessories After the Fact (Mary Ferrell Foundation Press, 2006), 10-13, 78n. After seeing Oswald twice on television, Brennan picked out Oswald in a second lineup (Warren Report, 143).7
Daily Telegraph, September 23, 2001,http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2001/09/23/widen23.xml.
Cf.
Guardian, September 21 2001,http://www.guardian.co.uk/world/2001/sep/21/afghanistan.september112 :" Abdulaziz
Al-Omari has also come forward to say he was not on the flight from Boston that crashed into the north tower of the World Trade Centre. An electrical engineer who works in Saudi Arabia, Mr Al-Omari said he was a student in Denver during the mid-1990s, and that his passport and other papers were stolen in a burglary in the US five years ago. … `The name is my name and the birth date is the same as mine,’ he told Asharq al-Aswat, a London-based Arabic newspaper. `But I am not the one who bombed the World Trade Centre in New York.’"
8
Daily Telegraph, September 23, 2001,http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2001/09/23/widen23.xml.
9
On October 4, 2001, the FBI issued a press release showing what appeared to be photos from surveillance videotape of two hijackers, Mohammed Atta and Abdulaziz Al-Omari, entering Portland Jetport on the morning of September 11, 2001 (FBI Press Release, October 4, 2001,http://www.fbi.gov/pressrel/pressrel01/100401picts.htm ). If valid, these would constitute evidence from the event itself. However the photos are anomalous, in that they show two time superimposed stamps, one showing 5:45, the other showing 5:53. The photos are not cited as evidence in the 9/11 Commission Report. On July 22, 2004, the date of the release of the 9/11 Commission Report, CNN aired what they said was surveillance videotape of two hijackers, Majed Moqed and Khalid al-Mihdar. entering "at one of the security screening points at Dulles International" (CNN, http://transcripts.cnn.com/TRANSCRIPTS/0407/22/lad.04.html ). The authenticity of the videotape has been challenged, however, because it lacks the time and date and location identification normally burned into a surveillance video image (Rowland Morgan and Ian Henshall,
9/11 Revealed: The Unanswered Questions [New York: Carroll and Graf, 2005], 117-19).10
I have argued that the conflicting messages were part of a so-called "marked card" or "barium meal" test to determine if and where leaks of sensitive information were occurring. This was a familiar technique, and was the responsibility of the CI/SIG or Counterintelligence Special Intelligence Group which drafted the two cables. See Peter Dale Scott, Deep Politics II: The New Revelations in U.S. Government Files,1994-1999 (Ipswich, MA: Mary Ferrell Foundation Press, 2007), 17-18, 92; also Peter Dale Scott, "Oswald and the Hunt for Popov’s Mole," The Fourth Decade, III, 3 (March 1996), 3;www.maryferrell.org/mffweb/archive/viewer/showDoc.do?absPageId=519798.
11
Peter Dale Scott, Deep Politics II, 30-33.12
Jefferson Morley, Our Man in Mexico: Winston Scott and the Hidden History of the CIA (Lawrence, KA: University Press of Kansas, 2008), 196-98. See Peter Dale Scott, Deep Politics II, 30-33.13
Lawrence Wright, The Looming Tower: Al-Qaeda and the Road to 9/11 (New York: Knopf, 2006), 310.14
9/11 Commission Report, 502n44.15
Wright, The Looming Tower, 312, 313.16
Lawrence Wright, "The Agent," New Yorker, July 10 and 17, 2006, 68.17
Clarence M. Kelley, Kelley: The Story of an FBI Director (Kansas City: Andrews, McMeel, & Parker, 1987), 268.18
James Bamford, A Pretext for War: 9/11, Iraq, and the Abuse of America’s Intelligence Agencies (New York: Doubleday, 2004), 224.19
Wright, The Looming Tower, 329. In his New Yorker story (p. 70), Wright wrote that "By withholding the picture of Khallad [bin Attash]…the C.I.A. may in effect have allowed the September 11th plot to proceed."20
9/11 Commission Report, 271; Wright, The Looming Tower, 353-54.21
David Atlee Phillips, Nightwatch, 139; quoted in Morley, Our Man in Mexico, 184. Morley observes that in the 1970s Phillips offered a total of "four not entirely consistent versions of the story of Oswald’s visit to Mexico City."22
J. Cofer Black testimony before 9/11 Congressional Joint Inquiry, 107th Cong., 2nd Sess., July 24, 2003.23
Dale Watson testimony before Joint Inquiry, 107th Cong., 2nd Sess., September 26, 2002.24
Amy B. Zegart, Flying Blind: The CIA, the FBI, and the Origins of 9/11(Princeton, NJ: Princeton UP, 2007), 117.25
Terry McDermott, Perfect Soldiers: The Hijackers: Who They Were, Why TheyDid It (New York: HarperCollins, 20050, 294n45; Philip Shenon, The Commission: The Uncensored History of the 9/11 Investigation (New York: Twelve/Hachette, 2008), 141.26
Morley, Our Man in Mexico, 7, 294.27
9/11 Commission Report, 267.28
Peter Dale Scott, Deep Politics and the Death of JFK (Berkeley: University of California Press, 1998), 81-86; Morley, Our Man in Mexico, 170-77.29
Morley, Our Man in Mexico, 177.30
Shenon, The Commission, 50-51.31
Larisa Alexandrovna, "FBI documents contradict 9/11 Commission report," RawStory, February 28, 2008, http://rawstory.com/news/2008/FBI_documents_contradict_Sept._11_Commission_0228.html (met at the airport); Shenon, The Commission, 52 (al-Bayoumi). Al-Bayoumi "apparently did work for Dallah Avco, an aviation-services company with extensive contracts with the Saudi Ministry of Defense and Aviation, headed by Prince Sultan, the father of the Saudi ambassador to the United States, Prince Bandar" ("The Saudi Money Trail," Newsweek, December 2, 2002, http://www.newsweek.com/id/66665).32
"The Saudi Money Trail," Newsweek, December 2, 2002. The FBI "hijacker timeline" was released by the FBI on February 4, 2008. See Larisa Alexandrovna, "FBI documents contradict 9/11 Commission report, Rawstory.com, February 28, 2008,http://rawstory.com/news/2008/FBI_documents_contradict_Sept._11_Commission_0228.html.
33
Shenon, The Commission, 54.34
9/11 Commission Report, 217; Shenon, The Commission, 52-53.35
Shenon, The Commission, 398.36
Shenon, The Commission, 398.37
Wright, The Looming Tower, 313. Looking at the same evidence, Christopher Ketcham has raised an alternative possibility, that "the CIA may have subcontracted to Mossad, given that the agency was both prohibited by law from conducting intelligence operations on U.S. soil, and lacked a pool of competent Arabic-fluent field officers. In such a scenario, the CIA would either have worked actively with the Israelis or quietly abetted an independent operation on U.S. soil…. When in the spring of 2002 the scenario of CIA’s domestic subcontracting to foreign intelligencewas posed to the veteran CIA/NSA intelligence operative, with whom I spoke extensively, the operative didn’t reject it out of hand" (Christopher Ketcham, "Cheering Movers and Art Student Spies: What Did Israel Know in Advance of the 9/11 Attacks?" CounterPunch, February 7, 2007,
http://www.conspiracyplanet.com/channel.cfm?channelid=73&contentid=4253&page=2 ).
38
Oswald requested a dependency discharge from the Marines in August 1959, "on the ground that his mother needed his support" (Warren Report, 688). Accordingly Marine Lt. A.G. Ayers, Jr. signed a document for Oswald’s release to inactive duty on September 11, 1959 (19 WH 679, cf. 17 WH 762) "by reason of hardship (19 WH 678). However Lt. Ayers should have known that Oswald had no intention of staying in Texas to support his mother; he had already, on September 4, 1959, signed an affidavit in support of Oswald’s passport application "to attend the College of A. Schweitzer, Chur, Switzerland and the Univ of Turku, Turku, Finland" (22 WH 77-79). (It is a sign of some covert intrigue that the language of instruction at the University of Turku was Finnish, a language Oswald did not know.)39
A significant symptom of this enduring substratum has been the Bush Administration’s protection of Samuel Berger, Clinton’s national security advisor. Berger pleaded guilty in April 2005 to having stolen 9/11 documents from the National Archives (Shenon, The Commission, 414). A condition of his plea bargain was to submit to a Justice Department polygraph test, to determine what documents had been stolen. Republican Congressman Dana Rohrabacher, a long-time critic of CIA operations in Afghanistan, revealed to the House in February 2008 that he had written to the Bush Justice Department, demanding that it administer the polygraph test, and that the Justice Department had rejected his demand (Congressional Record, February 26, 2008, House, pp. H1065-H1072). We have already seen that Berger when in office was receiving regular reports from the CIA about the presence of al-Mihdar and al-Hamzi at the Kuala Lumpur meeting (Zegart, Flying Blind, 117). It is possible that these were the reports he was stealing from the Archives, and that the Justice Department refusal to administer the polygraph test is part of a cover-up to protect the CIA’s relationship to the two Saudis.40
Amy Chua, Day of Empire: How Hyperpowers Rise to Global Dominance – and Why They Fall (New York: Doubleday, 2007), 342.
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