But Bush has lost his audacity. No longer does he claim that Iraq was involved in 9/11 (unlike Cheney), nor does he say that renditions and torture are necessary tools in the war on terror (well he did say that interrogators had success with alternative techniques with certain detainees), and now he is asking Congress to bestow a Regal privilege upon him ï ¿ ½ retroactive immunity. How surprising given Bush's history and ambivalence about holding supreme power.
- G. W. Bush (1998)
Going Retro
Why does Bush want retroactive immunity and for protection against what crimes? The simple answer is that he does not want to go to prison, or be sentenced to death for violating the War Crimes Act of 1996 (WCA) or the Foreign Intelligence Surveillance Act (FISA).
The US War Crimes Act of 1996 makes it a felony to commit grave violations of the Geneva Conventions. Because of the strict language of the 1996 War Crimes Act, then White House counsel, Alberto Gonzales wrote the infamous "torture memo" of 2002. There Gonzales advised Bush to declare that the Geneva Conventions did not apply to people that the United States captured under the rubric of the War on Terror in order to "reduced the threat of domestic criminal prosecution under the War Crimes Act."[4]
While attorneys from the Center for Constitutional Rights and others have complained vociferously about the abuses suffered by their clients in Guantanamo Bay, Bagram Air Force Base, and other hell holes, Bush was relatively safe and secure ï ¿ ½ having abrogated U.S. treaty obligations by fiat. But a problem for Bush sprang up more recently when in June 2006 the Supreme Court ruled in Hamdan,[5] that the Geneva Conventions apply for all detainees. Thus the court ruled, in effect, that Bush committed war crimes and violated the War Crimes Act.[6] To preempt any prosecution, or grounds for articles of impeachment, Bush's team is working with members of Congress, proposing amendments to the WCA that includes language to grant retroactive immunity.[7, 8]
The Bush Administration is circulating draft legislation to eliminate crucial parts of the War Crimes Act that would otherwise hold Bush and American officials liable under the WCA.[9] One section of the draft but does not contain the prohibitions from Article 3 of the Geneva Conventions against "outrages upon personal dignity," covering "humiliating and degrading treatment." Another section of the Bush proposal applies the legislation retroactively.[10] The administration plans to slip these amendments through Congress while there still is a Republican majority, as part of the military appropriations bill, or the proposals for Guantï ¿ ½namo tribunals, or in some new "anti-terrorism" package.[11]
Bush is now also trying to obtain retroactive immunity for his legal liability in implementing his illegal NSA spying programs.[12] No more than a few weeks after Federal District Court Judge, Anna Diggs Taylor, ruled that the NSA warrantless wiretapping of international phone calls to and from the United States was unconstitutional. She held that Bush's program violated the Fourth Amendment, which prohibits searches without a warrant, and the First Amendment, because of its chilling effect on free speech.[13]
So Bush is "calling on the Congress to promptly pass legislation providing additional authority for the Terrorist Surveillance Program along with broader reforms in the Foreign Intelligence Surveillance Act."[14] The Bush administration wants Congress to preempt court challenges by retroactively legalizing the spying and removing the subject entirely from judicial review by declaring that the surveillance to be an exercise of the president's executive authority as commander in chief.[15] Now that is what we call Moxie, Bush is going to ask that Congress make him a dictator ï ¿ ½ so subtle, did Hitler do did that?
Sticks and stones will break my bones, but the new rules will KILL me!
In addition to these quasi-dictatorial efforts, team Bush has drafted new rules about torture. (Again, in conjunction with long-standing practices of executive orders, that is legislation from the executive rather than a deliberative body, what the executive says goes!) On 6 September 2006, the Department of Defense issued a new Army Field Manual on intelligence interrogation, specifying the list of approved and disallowed interrogation techniques. Rather than continue to criminalize mistreatment that the Defense Department had itself forbade, the new manual redefines the meaning of Common Article 3 of the Geneva Convention to protect civilian officials and CIA interrogators.[16] The new rules forbidding waterboarding, stress positions and other cruel and degrading treatment do not apply to the CIA or those who approve of or engage in cruel and inhumane interrogation techniques.[17] In fact this language circumvents federal laws against abusive detainee treatment by authorizing the CIA to detain and abuse suspects in the future.[18]
On the same day the Army claimed that it would stop doing torture (for reals, even though the manual forbade the very torture now prohibited), the administration proposed legislation to authorize military trials for "terrorist detainees." Human Rights Watch complains that the plan violates almost all of the basic norms of fair justice highlighted by the Supreme Court in Hamdan.[19] If passed into law, a defendant could be convicted and executed with evidence extracted via torture, that the defendant and his attorney never see, and can never challenge. And the only automatic right of appeal would be to another military commission, with all of the judges appointed by and under the chain of command of the Secretary of Defense.[20]
Under the proposed law, the administration could accuse any non-citizen of supporting terrorist activity, anywhere, and force them into this second-class system of justice. Under this legislation, the proverbial old lady in Switzerland who gave money to a charitable arm of a "terrorist organization" could be declared an "unlawful enemy combatant," placed in military custody, and convicted by a military commission and executed for providing "material support to terrorism."[21] That is how any good Roman Prefect would have done it or maybe a panel of Spanish Inquisitors.
Bush wants legal authority to detain and punish people in secret, by executive fiat, wants to order others to torture, wants to dispel with the need to get court authorization to spy on Americans, and be relieved from criminal liability. This is what it means to move toward a dictatorship, a fascist state.
You don't get everything you want. A dictatorship would be a lot easier... So long as I'm the dictator.
- G. W. Bush (1998)
I told all four [Congressional leaders] that there are going to be [times when] we don't agree ... but that's okay. If this were a dictatorship, it would be a heck of a lot easier. Just so long as I'm the dictator.
- G. W. Bush (18 December 2000)
"A dictatorship would be a heck of a lot easier. There's no question about it."
- G. W. Bush (27 July2001)
Why does Bush want retroactive immunity and for protection against what crimes? The simple answer is that he does not want to go to prison, or be sentenced to death for violating the War Crimes Act of 1996 (WCA) or the Foreign Intelligence Surveillance Act (FISA).
The US War Crimes Act of 1996 makes it a felony to commit grave violations of the Geneva Conventions. Because of the strict language of the 1996 War Crimes Act, then White House counsel, Alberto Gonzales wrote the infamous "torture memo" of 2002. There Gonzales advised Bush to declare that the Geneva Conventions did not apply to people that the United States captured under the rubric of the War on Terror in order to "reduced the threat of domestic criminal prosecution under the War Crimes Act."[4]
While attorneys from the Center for Constitutional Rights and others have complained vociferously about the abuses suffered by their clients in Guantanamo Bay, Bagram Air Force Base, and other hell holes, Bush was relatively safe and secure ï ¿ ½ having abrogated U.S. treaty obligations by fiat. But a problem for Bush sprang up more recently when in June 2006 the Supreme Court ruled in Hamdan,[5] that the Geneva Conventions apply for all detainees. Thus the court ruled, in effect, that Bush committed war crimes and violated the War Crimes Act.[6] To preempt any prosecution, or grounds for articles of impeachment, Bush's team is working with members of Congress, proposing amendments to the WCA that includes language to grant retroactive immunity.[7, 8]
The Bush Administration is circulating draft legislation to eliminate crucial parts of the War Crimes Act that would otherwise hold Bush and American officials liable under the WCA.[9] One section of the draft but does not contain the prohibitions from Article 3 of the Geneva Conventions against "outrages upon personal dignity," covering "humiliating and degrading treatment." Another section of the Bush proposal applies the legislation retroactively.[10] The administration plans to slip these amendments through Congress while there still is a Republican majority, as part of the military appropriations bill, or the proposals for Guantï ¿ ½namo tribunals, or in some new "anti-terrorism" package.[11]
Bush is now also trying to obtain retroactive immunity for his legal liability in implementing his illegal NSA spying programs.[12] No more than a few weeks after Federal District Court Judge, Anna Diggs Taylor, ruled that the NSA warrantless wiretapping of international phone calls to and from the United States was unconstitutional. She held that Bush's program violated the Fourth Amendment, which prohibits searches without a warrant, and the First Amendment, because of its chilling effect on free speech.[13]
So Bush is "calling on the Congress to promptly pass legislation providing additional authority for the Terrorist Surveillance Program along with broader reforms in the Foreign Intelligence Surveillance Act."[14] The Bush administration wants Congress to preempt court challenges by retroactively legalizing the spying and removing the subject entirely from judicial review by declaring that the surveillance to be an exercise of the president's executive authority as commander in chief.[15] Now that is what we call Moxie, Bush is going to ask that Congress make him a dictator ï ¿ ½ so subtle, did Hitler do did that?
Sticks and stones will break my bones, but the new rules will KILL me!
In addition to these quasi-dictatorial efforts, team Bush has drafted new rules about torture. (Again, in conjunction with long-standing practices of executive orders, that is legislation from the executive rather than a deliberative body, what the executive says goes!) On 6 September 2006, the Department of Defense issued a new Army Field Manual on intelligence interrogation, specifying the list of approved and disallowed interrogation techniques. Rather than continue to criminalize mistreatment that the Defense Department had itself forbade, the new manual redefines the meaning of Common Article 3 of the Geneva Convention to protect civilian officials and CIA interrogators.[16] The new rules forbidding waterboarding, stress positions and other cruel and degrading treatment do not apply to the CIA or those who approve of or engage in cruel and inhumane interrogation techniques.[17] In fact this language circumvents federal laws against abusive detainee treatment by authorizing the CIA to detain and abuse suspects in the future.[18]
On the same day the Army claimed that it would stop doing torture (for reals, even though the manual forbade the very torture now prohibited), the administration proposed legislation to authorize military trials for "terrorist detainees." Human Rights Watch complains that the plan violates almost all of the basic norms of fair justice highlighted by the Supreme Court in Hamdan.[19] If passed into law, a defendant could be convicted and executed with evidence extracted via torture, that the defendant and his attorney never see, and can never challenge. And the only automatic right of appeal would be to another military commission, with all of the judges appointed by and under the chain of command of the Secretary of Defense.[20]
Under the proposed law, the administration could accuse any non-citizen of supporting terrorist activity, anywhere, and force them into this second-class system of justice. Under this legislation, the proverbial old lady in Switzerland who gave money to a charitable arm of a "terrorist organization" could be declared an "unlawful enemy combatant," placed in military custody, and convicted by a military commission and executed for providing "material support to terrorism."[21] That is how any good Roman Prefect would have done it or maybe a panel of Spanish Inquisitors.
Bush wants legal authority to detain and punish people in secret, by executive fiat, wants to order others to torture, wants to dispel with the need to get court authorization to spy on Americans, and be relieved from criminal liability. This is what it means to move toward a dictatorship, a fascist state.
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