BOOK REVIEW: “Cowboy Republic” (Marjorie Cohn)

BOOK REVIEW: “Cowboy Republic” (Marjorie Cohn)


by Stephen Lendman

Marjorie Cohn is a distinguished law professor at
Thomas Jefferson School of Law in San Diego where
she’s taught since 1991 and is the current president
of the National Lawyers Guild.  She’s also been a
criminal defense attorney at the trial and appellate
levels, is an author, and has written many articles
for professional journals, other publications, and for
noted web sites such as Global Research, ZNet,
CounterPunch, AfterDowning Street, Common Dreams,
AlterNet and others.  Her long record of achievements,
distinctions and awards is broad and varied for her
teaching, writing and her work as a lawyer and
activist for peace, social and economic justice.

Cohn’s latest book just published, and subject of this
review, is titled “Cowboy Republic: Six Ways the Bush
Gang Has Defied the Law.”  It provides a thorough,
impressive and incisive account of the most important
ways the Bush administration defied, defiled and
weakened the rule of law and by so doing hurtled the
nation toward tyranny.  This book is an essential
guide to their lawless record, its threat to the
nation and world, and the desperate need to confront
it, challenge it and remove it from office before it’s
too late.  The stakes couldn’t be greater - the fate
of the republic hangs by a thread as well as all
humanity if people of conscience fail to act and
swiftly.  Cohn’s book lays out the problem clearly.
The rest is up to us.

Richard Falk, Professor Emeritus of International Law
at Princeton University, introduces what’s to follow
in his brief introduction to Cohn’s book. In it, he
states the most important lesson of the disastrous
Iraq war is that “adherence to international law
serves the national (as well as) human interest in
time of war.” More than at any other time, with the
nation at war, US presidents can practically operate
as dictators outside the normally constraining check
and balancing influences of the other two branches of
government, when they choose to use them.

For the past six and a half years, they’ve been
nowhere in sight, and George Bush took full advantage.
He’s defied constitutional and international law with
arrogance and impunity including the Nuremberg
Principles defining what constitutes a war crime.
Falk quotes its chief prosecutor, Justice Robert
Jackson, saying ....“the record on which we judge
these (Nazi) defendants today is the record on which
history will judge us tomorrow.”  Throughout our
history, pre and post-Nuremberg, this nation broke the
“Nuremberg promise….repeatedly” but never to the
degree as under George Bush. That’s the legacy he’ll
pass to future administrations they’ll have to live
with and confront as an obstacle in an attempt to move
ahead. Their job won’t be easy.

Introduction

Cohn begins her book with a definition of “cowboy”
applicable to George Bush - one “who undertakes a
dangerous or sensitive task needlessly.” Other
definitions refer to someone who’s “reckless,
aggressive or irresponsible.”  Those characterizations
pretty much sum up the record of the current President
who won’t go down in history like the legendary heros
who won the West and most dictionaries say are “hired
hands who tend cattle and perform other duties on
horseback” on the range “where the deer and antelope
play.”

Despite our nominal constitutional protections, Cohn
recounts how the history of the country was marked by
abuses of power going back to the Alien and Sedition
Acts under John Adams. They were enacted to stifle
dissent in time of possible war, but, in fact, were
used against Republican opponents to deny them what
Jefferson called “the highest form of patriotism” -
the right to dissent. 

Our reputed greatest President, Abraham Lincoln,
followed in Adams’ tradition during the Civil War.  He
suspended habeas and other civil liberties, instituted
an unfair draft, blatantly abused his power overall
and functioned ad libitum as a virtual dictator.
Woodrow Wilson was no different, and so was Franklin
Roosevelt, both of whom justified their right to set
aside constitutional protections in time of war.  No
evidence suggests doing it helped. There’s plenty,
however, to prove they weakened the republic making it
easier for future Presidents to take even greater
liberties interpreting the law as they wished. Enter
George Bush. Case closed.

Cohn notes that few Americans understand international
law, or the Constitution either, for that matter,
aside from some pro forma words they can recite
perfunctorily but not explain.  They also don’t know
international law is US law as well under the
Supremacy Clause of the Constitution. It states all
treaties “shall be the supreme Law of the Land.” They
include the UN Charter, four Geneva Conventions, the
UN Convention Against Torture banning any form of the
practice at all times for any reason, and all other
treaties the nation signs.  Sadly, Cohn observes,
constitutional and international law “didn’t prevent a
series of executive branch violations in the 1960s
(under Lyndon Johnson mostly) and 1970s (egregiously
under Richard Nixon) when the executive branch”
operated outside the limits of the law they were sworn
to uphold but didn’t.

Cohn then gets into the meat of her important book
recounting George Bush’s six specific appalling abuses
of power still raging unrestrained out of control and
in recent days got even worse as explained below.

A War of Aggression

International law bans premeditated aggressive war
under any conditions.  The UN Charter clearly states a
nation may only use force under two conditions: when
authorized to do it by the Security Council or under
Article 51 that allows the “right of individual or
collective self-defense if an armed attack occurs
against a Member….until the Security Council has
taken measures to maintain international peace and
security.” In other words, self-defense is permissible
but an unprovoked attack on another nation violates
sacred international law and constitutes what the
Nuremberg Charter called “the supreme international
crime against peace.”

Clear evidence exists that the Bush administration
intended to attack Afghanistan and Iraq prior to 9/11.
All that was needed (as laid out in 2000 by the
neoconservative Project for a New American Century -
PNAC) was “some catastrophic and catalyzing event -
like a New Pearl Harbor” to militarize the nation and
wage aggressive war.  On 9/11, the Bush administration
got its wish and “swung into action” by going to war
based on deceit and lies about invalid threats and for
reasons other than stated. 

Former CIA head of counterintelligence, Vincent
Cannistraro, later acknowledged it was based on
“cooked intelligence.”  And CIA analyst Michael
Scheuer said the agency was resigned “that we were
going to war” and no facts or analysis would stop it.
In addition, an August 6 John Conyers-ordered report
found that “members of the Bush administration
misstated, overstated, and manipulated intelligence
with regards to linkages between Iraq and Al Queda;
the acquisition of nuclear weapons” along with other
lies to justify war including so-called WMDs known not
to exist years earlier.

In July, 2002, the New York Times got access to a
highly classified document titled “CentCom Courses of
Action” containing what the Pentagon called a “war
plan” to invade Iraq.  It began in earnest as a secret
air war in May, 2002 that by end of August “had become
a full air offensive,” according to the London Sunday
Times.  British MI 6 chief Richard Dearlove then
revealed the secret contents of the so-called Downing
Street memo based on a July, 2002 Washington meeting
where “the facts (to justify war with Iraq) were being
fixed around the policy.” 

Earlier on September 18, 2001, the administration set
off on the road to war with the joint House-Senate
resolution passage of the Authorization for Use of
Military Force (AUMF).  It authorized “the use of
United States Armed Forces against those responsible
for the recent attacks launched against the United
States.” Then in October, 2002, Congress surrendered
its authority to George Bush by passing the Joint
Resolution to Authorize the Use of United States Armed
Forces Against Iraq to “defend the national security
of the United States against the continuing threat of
Iraq.” Republicans and Democrats acted together
knowing Iraq posed no threat and that its action
violated the UN Charter.

Cohn explains the real motive behind attacking,
invading and occupying Iraq that by now a bright ten
year old understands. Paul Wolfowitz finally admitted
using WMDs as an excuse was “for bureaucratic reasons”
and the one pretext everyone could agree on. He later
had to admit what everyone already knew. The real
issue is oil and the fact that Iraq potentially has
more of the cheap light sweet easily accessible kind
than any other country on earth, including Saudi
Arabia. One Wall Street oil analyst calls the country
“the most valuable real estate on the planet” and the
last of the “low-hanging fruit.”

Solidifying a huge military presence in the region is
also key with the US well-entrenched now on 106 known
sites, including four super bases (with more planned)
as large as small towns and with all their amenities,
and a Vatican-sized largest embassy in the world. The
Middle East is where two-thirds of proved oil reserves
are located, and that fact was never lost on present
and prior US planners.  Notions of WMDs, removing a
dictator, protecting national security, preventive
self-defense, establishing democracy and conducting a
humanitarian mission were all concocted rubbish.
Sadly, it was believed by most people and too many
still do, the result of lots of forced-fed dominant
media hyperventilating help round the clock and on
board with the administration to the bitter end for an
illegal venture gone sour.

Along with so many other violations of international
law, Cohn noted the Bush administration ignored the
International Covenant on Civil and Political Rights
(ICCPR) that’s part of US law “under the Supremacy
Clause of the Constitution.” Article I (1) says: “All
people have the right of self-determination. By virtue
of that right they (can) freely determine their
political status and (can) freely pursue their
economic, social and cultural development.” Cohn
stated the US had no “legal authority to intervene in
the affairs of the Iraqi people and choose their
leadership for them.”

The Bush administration set about doing it in March,
2003.  It followed the secret air war it waged months
earlier as a softening up action for the “shock and
awe” to come that the New York Times praised as
“almost (having) biblical power.”  The entire
corporate media also ignored the use of illegal
weapons like depleted uranium, white phosphorous, and
cluster bombs that keep killing and maiming long after
the end of battle. In addition, experimental weapons
are freely used, some targeting innocent civilians to
inflict terror, and all intended to subdue a
population hostile to a foreign occupier.

These are “weapons of mass destruction,” stated Cohn.
She also cited the Geneva Convention Relative to the
Protection of Civilian Persons in time of War (Geneva
IV). It calls “willfully causing great suffering or
serious injury to body and health” a grave breach of
law.  The Bush administration deliberately flouts the
law and “is committing war crimes with its use of
these weapons.”  The result since March, 2003 alone
has been mass deaths in appallingly high numbers,
immeasurable human misery and suffering, and
destruction on an enormous scale - all of which is
still ongoing daily with innocent civilians afflicted
most.

Has it made the US and world safer? Hardly, by any
measure and quite the opposite, in fact, according to
an April, 2006 National Intelligence Estimate Cohn
quoted.  It stated the Iraq conflict became “a ‘cause
celebre’ for jihadists, breeding deep resentment
(against the US) in the Muslim world (and) shaping a
new generation of terrorist leaders and operatives.”
In committing “the supreme international crime against
peace” against two nations, the US has become “the
greatest menace of our times,” quoting Nuremberg chief
Justice Robert Jackson’s reference to the crime of
aggression and by implication any nation committing
it.

The Torture of Prisoners

Post-9/11, “the gloves came off” said former CIA
Counterterrorism Center chief, Cofer Black, now part
of the paramilitary mercenary operation at Blackwater,
USA operating freely outside the law as thuggish hired
guns in Iraq, New Orleans and coming soon to a
neighborhood near you. Cohn noted “Soon after 9/11,
senior administration lawyers wrote memoranda to
redefine and justify torture” along with most
everything else they planned outside domestic and
international law. George Bush announced Geneva
Conventions didn’t apply to Guantanamo prisoners, and
Alberto Gonzales (as White House legal council)
sweepingly called them “quaint” and “obsolete” in
2002.  What they had in mind is anything goes and that
includes torture even though it’s widely known not to
elicit useful information. It’s also known as an
effective terror weapon and a useful means of social
control. 

The practice is also abhorrent and violates at least
two US laws - the 1996 War Crimes Act and 1994 Torture
Statute. That’s along with numerous widely accepted
international ones, even though all too frequently
many countries, including so-called “civilized” ones,
don’t observe them.  We all know what happened since
from the appalling abuses at Guantanamo, Abu Ghraib
and at secret CIA and Pentagon ‘black sites” around
the world. They’re in countries known to use torture
and are now in league with US agencies doing it for
whatever favors they’re getting in return.

Cohn reviewed some of the laws banning torture
including the 1994 Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or
Punishment than bans mistreatment as well as torture.
The US is also “party to the International Covenant on
Civil and Political Rights (ICCPR)” that guarantees
the right to life and prohibits cruel, inhuman and
degrading treatment. She then notes “the most famous
anti-torture treaties are the four Geneva Conventions
(of 1949). The first two provide for the protection of
sick and wounded (forces in battle).” The third one
defines who is a prisoner of war “and establishes
minimum standards” for POW treatment.  The fourth
convention applies to civilians and affords them
protections during war that require they be treated
humanely.

All four conventions have a common thread called
Common Article Three. “It requires that persons taking
no active part in hostilities (including the detained)
be treated humanely at all times.”  War crimes are
grave breaches under Geneva, and the 1996 War Crimes
Act provides up to life imprisonment or the death
penalty for persons convicted of committing war crimes
within or outside the US.  Administration memos from
officials like Gonzales as well as John Yoo and Jay
Bybee (writing for the DOJ Office of Legal Council)
advised Al-Queda and Taliban interrogators were exempt
from these laws “under the President’s
commander-in-chief powers.” Cohn explained “the
Torture Convention permits no such exemption, even
during wartime.” 

As bad or worse was narrowing and distorting
definitions with Yoo and Bybee writing psychological
harm must last “months or even years” to be torture.
Cohn noted Yoo was the architect of the repressive
Patriot Act and domestic surveillance program.  Bybee
was later appointed to the US Court of Appeals for the
Ninth Circuit proving lawlessness is rewarded as long
as lawbreakers have friends in high places.

Cohn reviewed how torture was authorized at the
highest level with damning evidence from human rights
organizations like Human Rights Watch, Amnesty
International and the International Committee of the
Red Cross (ICRC). They’ve shown how widespread it’s
been in Iraq, Guantanamo and at all secret “black
sites.” Human Rights Watch also documented that its
use is “systematic” and known “at varying levels of
command” with explicit testimony proving it.

The human consequences are devastating and widespread
with the ICRC saying as many as 90% of persons
detained were arrested by mistake.  Seton Hall
University Law School professor Mark Denebeaux and
others analyzed unclassified government data gotten
through FOIA requests, basing their report on
evidentiary summaries from 2004 military hearings.
They learned the majority of Afghan prisoners at
Guantanamo weren’t accused of hostile acts and 95% of
them were seized by Afghan bounty hunters who “sold”
them to US forces for $5000 per claimed Taliban and
$25,000 for supposed Al-Queda members.

What they endure as a result is horrific with Cohn
detailing how they’re treated that’s reminiscent of
the Spanish Inquisition or the worst abuses under the
Nazis.  They amount to a menu of “sadistic, blatant,
and wanton criminal” acts against innocent people,
including women and children. 

One particularly appalling procedure is force-feeding
applied to as many as one-third of Guantanamo
detainees and an unknown number of prisoners
elsewhere. The practice is so violent, it amounts to
torture. Tubes, at times the thickness of fingers, are
inserted in the nose and thrust all the way down
throats and into stomachs causing extreme pain,
vomiting up blood, and even greater pain when tubes
are removed with blood gushing out in the process.

One victim of this practice described the pain as
“unbearable,” and attorney Julia Tarver
(representating Guantanamo clients) explained
physicians violated their Hippocratic Oath to do no
harm by being a part of it. The 53-nation UN Human
Rights Commission also confirmed in 2006 that “doctors
and other health professionals are participating in
force-feeing detainees” by this method that amounts to
horrific torture.

Cohn noted an August, 2004 Independent Panel to Review
Department of the Defense Detention Operations report
called the Schlesinger Report.  It concluded “Policies
approved for use on al Queda and Taliban detainees
(who never got Geneva protection but should
have)....(are also) applied to detainees who did fall
under” Geneva.  Another August, 2004 Army report
indicated the most extreme abuses “are, without
question criminal.”

They’re also done “by proxy” at “black sites” and
through the illegal practice of “extraordinary
rendition” with victims secretly sent to other
countries where they disappear into torture-prison
hellholes, out of sight and mind.  The Convention
against Torture prohibits what’s called “refoulement -
expelling, returning, or extraditing a person to
another country where there are substantial grounds to
believe he would be in danger of being tortured.”
Popular sites include Egypt, Syria, Saudi Arabia,
Jordan, Pakistan, Uzbekistan, Morocco, Ethiopia and
other repressive countries.  Cohn quoted a former CIA
agent saying: “If you want a serious interrogation,
you send a prisoner to Jordan. If you want them to be
tortured, you send them to Syria.  If you want someone
to disappear….you send them to Egypt.” 

With the Bush administration earmarking $63 billion in
arms sales or giveaways to client Middle East
countries like Israel, Saudi Arabia, Egypt and others,
things are guaranteed to get worse and may become
explosive and out of control.  Increased violence will
follow deliveries and with it abusive torture and much
more.

On July 19, 2007, after the publication of Cohn’s
book, George Bush’s arrogance, contempt for the law
and hypocrisy were on display again in one package
contained in another sweeping executive order (EO).
According to AP, he “breathed new life into the CIA’s
terror interrogation program (aka no holds barred
torture) that would allow harsh questioning of
suspects limited in public only by a vaguely worded
ban (signifying none whatever) on cruel and inhuman
treatment.” 

The order pretends to prohibit some practices, “to
quell international criticism,” describes them only
vaguely, and doesn’t say what practices are still
allowed.  The Bush administration insists its
interrogation operation is one of its most important
tools in the “war on terrorism.” Bottom line - ugly
business as usual will continue unchanged and
unchecked, except for the doublespeak language
signifying only deception from a President exposed as
a serial liar.

Summary Execution and Willful Killing

Summary executions, or extra-judicial murders, have
long been practiced by past US governments with rogue
agencies like CIA masters of the black art and skilled
at covering its tracks.  The Bush regime cares little
about subtleties, so its operatives wantonly and
openly engage in this simple way of removing
adversaries even though Cohn stated: “Willful killing
is a grave breach of the Geneva Conventions (and)
punishable as a war crime under the US War Crimes
Act.”

In the wake of the Vietnam war and Watergate, Gerald
Ford (because of necessity, not conviction) issued an
executive order banning assassinations, but George
Bush revoked it secretly in December, 2001. He
established a “special-access program” authorizing
“clandestine Special Forces to snatch or assassinate
anyone considered a ‘high value’ al-Queda operative,
anywhere in the world.” 

George Bush, with roguish intent, turned a blind eye
to willful murder, opening the door to mass,
indiscriminate slaughter in Iraq, Afghanistan or
anywhere in the world he chooses, including targets at
home.  In occupied countries, it’s allowed the
military to operate in so-called “free-fire zones”
with orders to shoot anything that moves.  It
sanctioned the use of terror weapons against
resistance and civilian targets with casualties in the
latter instance brushed off as “collateral damage.”

All Iraq is a “free-fire zone” even though the Fourth
Geneva Convention bans collective punishment against
an occupied people.  The results have been horrific
with cities like Fallujah suffering most. The US
November, 2004 attack there killed as many as 6000
civilians, the result of vengeful indiscriminate
assaults against defenseless people who just happened
to live there. In November, 2005 a smaller massacre
took place in Haditha where US Marines slaughtered 24
unarmed civilians “execution-style.”

Authorizations for these and other banned practices
come right from the top with troops in the field
likely believing they’re licensed to kill by their
commander-in-chief, DOD boss and top Pentagon brass.
They’re right. 

Cohn noted allegations are that “US troops have
engaged in (routine) summary executions and willful
killing (across the country in cities like) Qaim, Abu
Ghraib, Taal Al Jal, Mukaradeeb, Mahmudiya,
Hamdaniyah, Samarra, Salahuddin and Ishaqi” along with
British forces doing the same thing in Basra and
southern Iraq where they’re based.  It’s so simple and
common a practice that one US soldier described it as
easy as “squashing an ant” with no greater price to
pay for it. The Bush administration and military
command are contemptuous of Iraqis and show it by the
huge numbers of innocent people they slaughter daily.
In so doing, they commit the worst kinds of war crimes
along with torture, abuse and neglect discussed above.

The Guantanamo Gulag

Cohn noted that Amnesty International described this
hellhole as “the gulag of our times.”  Already
discussed is the fact that most people sent there, and
still held, were innocent bystanders snatched in
Afghanistan by bounty hunters able to cash in on a
huge payday at the cost of an innocent human being’s
freedom.

Cohn explained that holding detainees at Guantanamo
violates US and international law, and the prison camp
itself is illegal.  She recounted how “the Gitmo story
start(ed) in 1903, when the US Army occupied Cuba
after its war of independence against Spain.” The
Platt Amendment, authorizing US intervention, “was
included in the Cuban Constitution as a prerequisite
for the withdrawal of US troops from the rest of
Cuba.” However, it only allowed for the right to use
Guantanamo Bay “as coaling or naval stations, and for
no other purpose.”  Franklin Roosevelt then signed a
new treaty with the island state in 1934 for the same
purpose with no provision to use the territory as an
offshore prison camp or military base.  Franklin
Roosevelt never met George Bush.

Cohn explained it’s “no accident that the Bush gang”
chose this spot for its gulag, one of many offshore.
All along, the administration “maintained that
Guantanamo Bay is not a US territory” so US courts and
US law have no jurisdiction there.  The result is what
Cohn called “indescribable torture,” and she listed
some of the barbaric methods used.

She also discussed “due process” the Bush
administration denied all Guantanamo detainees with
the Supreme Court disageeing in Rasul v. Bush. In the
decision, the Court “settled the jurisdictional
question” saying the US exercises “complete
jurisdiction and control” at the base with all aliens
held there “entitled to invoke the federal courts’
authority” under their habeas rights.  The Court also
rebuked the Bush administration in Hamdi (a US
citizen) v. Rumsfeld with Justice O’Conner saying “a
state of war is not a blank check for the President
when it comes to rights of the Nation’s citizens.”

In response, the administration established Combatant
Status Review Tribunals (CSRT) “ostensibly to comply”
with Rasul. They do not as prisoners under them were
only entitled to a “personal representative,” not a
trained attorney able to defend their due process
rights. Detainees were also only allowed to see
summaries of unsubstantiated classified evidence
against them, requests for witnesses were rarely
granted, and their “representatives” ill-served them
in tribunal hearings. As a result, they got no
justice. 

Cohn quoted attorney Joseph Margulies saying: “The
CSRT is the first time in US history in which the
lawfulness of a person’s detention is based on
evidence secured by torture that’s not shared with the
prisoner, that he has the burden to rebut and without
the assistance of council.”  Cohn then added: “CSRT
violates the International Covenant on Civil and
Political Rights which prohibits arbitrary detention
and guarantees a detainee the right to be informed of
the reason for his detention,” the right to council,
to examine witnesses, to call witnesses, and “the
right to the presumption of innocence.”

Shamefully, the Republican-led Congress backed the
administration by passing the Detainee Treatment Act
(DTA) in December, 2005.  It prevents US courts from
hearing habeas petitions filed after the date of DTA.
Cohn explained “the Supreme Court (then) stepped in
again in Hamdan v. Rumsfeld after the Bush
administration charged this man (supposedly bin
Laden’s driver) with one count of conspiracy “to
commit….offenses triable by military commission.”
It held that Congress didn’t intend to deny detainees
like Hamdan their right to federal court jurisdiction,
and that Geneva Conventions do apply.

Cohn then reviewed the outrageous Military Commissions
Act (MCA) of 2006, aka “the torture authorization
act.”  It grants the administration extraordinary
unconstitutional powers to detain, interrogate and
prosecute alleged terror suspects and anyone claimed
to be their supporters.  In addition, it allows the
President the right to call anyone anywhere in the
world an “unlawful enemy combatant” and empowers him
to arrest and incarcerate those accused indefinitely
in military prisons without corroborating evidence
proving guilt.

It also annuls habeas for anyone charged, lets the
President decide what constitutes torture, grants US
officials retroactive immunity from past crimes,
prohibits detainees from invoking Geneva rights,
allows “unlawful enemy combatants” and civilians to be
tried by military commissions that can impose death
sentences with no right of appeal, makes
torture-extracted and hearsay evidence permissible,
sanctions indefinite and secret detentions and more. 
   

Cohn asked: “So how unconstitutional is the Military
Commissions Act? Let us count the ways. MCA violates
the Suspensions Clause of the Constitution by denying
non-US citizens (and citizens, too) any meaningful
opportunity to challenge the legality of their
detention.” It also violates Geneva plus the Fifth and
Sixth Amendments.  Above all, it violates the spirit
and letter of the law and a nation claiming a
tradition of respecting it. No longer under George
Bush, who flouts the law openly, but it happened often
earlier as well whenever past Presidents like Adams,
Lincoln, Wilson, Franklin Roosevelt, Nixon, Johnson,
Reagan and others ignored or twisted the law for
political purposes.  None, however, did it as
brazenly, openly and systematically as George Bush who
as chief executive believes the law is what he says it
is.  And never before was Congress and the courts as
willing to go along with him as now.

Cohn quoted a former military linguist saying “A
stench of despair hangs over Guantanamo,” and one
detainee told his lawyer he’d rather die than stay
there.  Many have tried taking their lives and a few
succeeded. The National Lawyers Guild, Association of
American Jurists, Amnesty International and other
human rights organizations all agree that Guantanamo
(and all “black site” and other torture-prison
hellholes) are a blight on the soul of America, they
should be closed, and all detainees held at them
released or charged with criminal offenses “in
accordance with international legal norms.”

Spying on Americans                  

Cohn recounted how on December 16, 2005, the New York
Times “unleashed a bombshell” its editors knew about a
year earlier but suppressed at the request of the
administration. It reported “George W. Bush had been
secretly spying on Americans without warrants since
late 2001. The next day, Bush confirmed that he had
authorized the National Security Agency (NSA) ‘to
intercept the international communications of people
with known links to al Queda’ and related terrorist
organizations.”  The operation was called the
“Terrorist Surveillance Program.” 

Cohn noted “wiretapping without probable cause or
judicial oversight violates both the Foreign
Intelligence Surveillance Act (FISA) and the Fourth
Amendment.” Thousands have been affected by it, and
Cohn believes the administration used the program to
target its critics.  It’s a throwback to “the bad old
days of FBI Director J. Edgar Hoover” and his domestic
spying programs begun in the 1940s or earlier.  It was
used then, later and now to monitor, threaten and
silence Americans (or anyone else) with “unorthodox
political views” meaning they disagreed with
government policies like McCarthy witch-hunts, racial
abuse, the Vietnam war and most everything George Bush
does.

The FBI began its COINTELPRO (counterintelligence
program) in 1956 to “expose, disrupt, misdirect,
discredit and otherwise neutralize” political and
activist groups like the American Indian Movement,
Black Panthers, Martin Luther King, and Vietnam war
protesters. Richard Nixon later used national security
wiretaps and illegal break-ins to target his political
enemies.  He had a long list of them.

Congress responded in 1978 to stop these practices
with the Foreign Intelligence Surveillance Act (FISA)
“to regulate electronic surveillance (while also)
protecting national security.” The law established the
Foreign Intelligence Surveillance Court (FISC). Its
judges are appointed by the Chief Justice of the
Supreme Court.  They meet in secret “to consider
applications for wiretap orders” when government must
convince a judge probable cause exists to believe the
target in question is a foreign power or its agent.
FISA wiretap limitations don’t apply for foreign
nationals abroad. “Its restrictions are triggered only
when the surveillance targets a US citizen or
permanent resident or when the surveillance is
obtained from a wiretap physically located within the
United States.  Also, FISA specifically covers
warrantless wiretaps during wartime,” only for the
first 15 days after war is declared, and can’t be used
against US citizens.

Nothing deters George Bush, his Justice Department and
compliant spy agencies.  As Cohn put it, he made “and
end run around FISA” and now can do it “legally” as of
August 5 with more on that below.  Earlier in late
2001, he sidelined FISC with a secret executive order
establishing his Terrorist Surveillance Program.  It
authorized NSA to monitor phone and computer
communications of Americans in the US at NSA’s
discretion - in other words, illegal warrantless
spying on domestic communications of anyone for any
reason, law or no law. Cohn noted Bush (as far as we
know) is the first President to defy FISA since its
1978 enactment. He’s now set a shameless precedent for
others later on.

He also ignores the Fourth Amendment’s protection
against unreasonable searches and seizure to protect
against police state practices. Cohn explained the
Supreme Court “consistently declared that a judge must
determine whether probable cause exists.” George Bush
flouts this ruling with impudence and arrogance.  It’s
of no concern to him that the American Bar Association
and the National Lawyers Guild declared his
warrantless surveillance program violates the law of
the land. He believes he’s the law and can do what he
pleases.

Alberto Gonzales is a war criminal marching in
lockstep with his boss and continues to shame the
Justice Department he heads.  He falsely and
criminally maintains Congress’ Authorization for the
Use of Military Force (AUMF) in September, 2001
provided legal justification for warrentless
surveillance outside of FISA.  Former Senator Gary
Hart called such actions “a repeat of the Nixon
years.”  Back then, he justified it because of civil
unrest in protest against the Vietnam war.  Today,
it’s the phony “war on terrorism” and raging ones in
Iraq and Afghanistan. Cohn emphasized “Bush has
already gone far beyond what the Constitution
authorizes, and FISA makes it a crime.” At least that
was so until August 5.

The Terrorist Surveillance Program isn’t the only
secret spying the Bush administration authorized, but
now it’s got a Congress-sanctioned warrantless open
field to do it without court oversight at the
discretion of the Attorney General (AG) and/or
Director of National Intelligence (DNI). Prior to its
August recess, Democrats and Republicans cravenly
caved to the politics of fear and hastily passed the
White House crafted Protect America Act 2007 amending
FISA in doublespeak language Orwell would love.

It will supposedly close so-called “communication
gaps” but will allow virtual unrestricted mass
data-mining monitoring and intercept of domestic and
foreign internet, cell phones and other new technology
as well as transit international phone call traffic
and emails. The Act claims to restrict surveillance to
foreign nationals “reasonably believed to be outside
the United States” and will sunset in six months
unless renewed. In fact, the new law targets everyone
including US citizens inside the country if the AG or
DNI claim they pose a potential terrorist or national
security threat, and no evidence is needed to prove
it. Further, in an election year, renewal is
absolutely guaranteed, possibly with even harsher
provisions added. 

In point of fact, this law allows virtual unrestricted
warrantless spying targeting anyone for any claimed
national security reason. It thus renders any notion
of illegal searches and privacy rights null and void.
This hellish Act effectively legalizes illegality by
Fourth Amendment standards that Patriot Act provisions
pretty much swept away earlier. This is how things
work in a police state where laws render privacy
issues (and all other freedoms) null and void and
everyone is under constant surveillance and stripped
of their rights.

Even without the new law, however, the administration
had in place a menu of past and current programs that
combined amount to “big brother” writ large and now is
getting larger. In May, 2006, it was learned Verizon
Communications, AT & T, and BellSouth provided NSA
with telephone and internet communications flowing
into and out of the country having nothing to do with
national security. Cohn quoted the New York Times
reporting a senior government official saying the
program confirmed NSA was able to access most all
phone calls in the country. It means everyone is being
listened to illegally so the spy agency knows
everything about us from the health of our family to
what toppings we like on our takeout pizza.

Data mining violates the 1986 Stored Communications
Act, but there’s lots more. The “Bush gang” secretly
collects our most personal information from an
operation called the Terrorist Finance Tracking
System.  With no court-approved authorization, they’ve
been accessing records from a huge international
database to examine the banking, credit card and other
financial transactions of many thousands of Americans
in the country. It amounts to a secret end run around
bank privacy laws requiring the government to show
cause for why these records are relevant to an
investigation.

Still more civil liberties have been lost the result
of Patriot act justice. It targets anti-war protesters
and political activists hostile to Bush administration
policies. The new law makes their actions crimes of
domestic terrorism when they’re only, in fact,
expressions of constitutionally guaranteed freedoms,
including our most sacred First amendment ones.

Post-9/11, other unconstitutional speech-related
monitoring began as well, including the short-lived
Terrorism Information and Prevention System (Operation
TIPS). The idea was to use civilian informers like
postal employees to report “unusual” neighborhood
activities, police-state style. The scheme flopped
when the postal service refused to be spies.

Then, there was the Pentagon’s Total Information
Awareness (TIA) renamed Terrorism Information
Awareness to monitor anything about anyone under the
spurious cover of it relating to “terrorism.” TIA came
under considerable congressional flack but some or all
of its activities continue under new names relating to
other Pentagon projects and initiatives so illegal
military spying continues unabated.

One such program is called the Threat and Local
Observation Notice (TALON) to collect domestic
intelligence by amassing a huge database, again
spuriously related to “terrorism.” It focuses on war
protesters targeted by police state monitoring of
their constitutional right to freely oppose the
nation’s illegal wars of aggression the Bush
administration says are justified to protect against
threats to national security. The Pentagon had second
thoughts about it after drawing flack for illegally
targeting peace activists. Its spokesperson called the
program’s results disappointing and doesn’t warrant
being continued as currently constituted in light of
its image in Congress and the media as of last spring.

What’s likely is that TALON’s activities are now
rebranded and continuing like all the other illegal
intrusive spying known about or still secret.  They
include those run by the Pentagon now authorized to
operate freely on US soil in the aftermath of last
year’s Defense Authorization Act revising the 1807
Insurrection Act and 1887 Posse Comitas. The change
gives the President the right to deploy the military
on US soil in the name of national security or “war on
terrorism.” It means, for the first time ever, federal
troops can legally operate inside the country any time
George Bush gives the order.

It gets even worse. On May 30, 2002, John Ashcroft and
FBI Director Robert Mueller revealed sweeping new
surveillance powers for this agency with a wide
latitude to spy more effectively on law-abiding US
citizens. The new “diktat” lets the FBI conduct
investigations up to a year without having to show
suspicion of criminal activity. They can target anyone
they choose, peering anywhere they wish into our
personal lives, that’s none of their business, to
document trips we take, books and publications we
read, internet sites visited, political and charitable
contributions made, meetings attended and more. Anyone
seen criticizing the government is fair game,
especially if it relates to the Iraq and Afghan wars.

Another new data mining program is being used by
police and federal authorities in some states.  It’s
called MATRIX standing for the Multistate
Anti-Terrorism Exchange Program. An ACLU 2004 White
Paper explained “it involves not the attempt to learn
more facts about known suspects, but (is a form of)
mass scrutiny of the lives and activities of innocent
people…. to see whether each of them shows any signs
of being a terrorist or other (type) criminal.”

MATRIX creates a “terrorism quotient” or High
Terrorist Factor (HTF) measuring the likelihood
individuals in the database are terrorists. The ACLU
believes the program is “an effort to recreate the
discredited Total Information Awareness (TIA) data
mining program at the state level.” It shows the
federal authorities are deep into efforts at all
levels to spy on US citizens. MATRIX is another
unprecedented effort to do it within or outside the
law and constitutes a massive invasion of privacy and
violation of our rights in a free society, along with
all other post-9/11 unconstitutional spying invasions
by any of the nation’s 16 spy agencies. 

The Constitution doesn’t specifically mention a right
to privacy, but Supreme Court decisions affirmed it
over the years as a fundamental human right.  As such,
it’s protected under the Ninth Amendment as well as
the Third prohibiting the quartering of troops in
homes, the Fourth affording protection from
unreasonable searches and seizures, and the Fifth
protecting against self-incrimination. MATRIX and
other intrusions enhance Patriot Act powers allowing
them to persist outside of congressional oversight and
judicial review. It’s another part of the overall
scheme to subvert the rule of law under George Bush
police state justice.

It advanced another step on July 17, after “Cowboy
Republic” was published, when George Bush issued
another of his many presidential “one-man” decrees.
It was titled “Executive Order: Blocking Property of
Certain Persons Who Threaten Stabilization Efforts in
Iraq.”  This unconstitutional action effectively
criminalizes dissent and shifts the nation another
perilous step closer to tyranny.  It targets the
anti-war movement in an effort to further weaken and
defuse it. It also adds another unconstitutional layer
onto the repressive Patriot Act author, analyst and
activist Jennifer Van Bergen says has been built on to
“establish a permanent framework for repression of
free speech and dissent.” All “activists (now) =
terrorists” as the administration cracks down hard to
control, suppress and remove all opposition.

In his important and revealing 1980 book “Cracks in
the Constitution,” Ferdinand Lundberg stated the US
Constitution “nowhere implicitly or explicitly gives
the President (the) power (to make) new law” by
issuing “one-man”, often far-reaching” executive order
decrees.  But, Lundberg explained “the President in
the American constitutional system is very much a de
facto king….(he is) by far the most powerful
formally constituted political officer on earth.” He
has “vast power (and) stands in a position midway
between a collective executive (like in the UK) and an
absolute dictator.” 

George Bush proves Lundberg was right and then some.
He’s taken full advantage, within and outside the law,
of what Lundberg called the “essence of presidential
power….in a single (vaguely worded) sentence.”
Specifically, Article II, Section 1 reads: “The
executive power shall be vested in a President of the
United States of America.” That simple statement,
easily passed over and misunderstood, means the
near-limitless power of this office is “concentrated
in the hands of one man” free to abuse it if he
chooses.  Article II, Section 3 then almost
nonchalantly adds: “The President shall take care that
the laws be faithfully executed” while not saying
Presidents are virtually empowered to make laws as
well as execute them although nothing in the
Constitution permits this practice.

Presidents also have no authority to stifle dissent,
but that hasn’t deterred George Bush. Post-9/11,
former press secretary Ari Fleischer laid out the new
“war on terrorism” rules of engagement saying
Americans “need to watch what they say, watch what
they do.”  It includes showing up for anti-war rallies
and protesting military recruitment. They’re now
considered “political terrorist activit(ies).” We’re
being watched if we go and subject to future
recrimination at the whim of a rogue President and
criminal administration meting out police state
justice.

Refusing to Execute the Law

Cohn quoted James Madison from the Federalist Papers
writing: “The preservation of liberty requires that
the three great departments of power should be
separate and distinct. The accumulation of all powers,
legislative, executive and judiciary, in the same
hands… may justly be pronounced the very definition
of tyranny.” George Bush proves the truth of Madison’s
words. Since taking office, he systematically sought
to usurp all governing powers in his hands under his
unconstitutional notion of a “unitary executive” with
the right to claim the law is what he says it is. It
isn’t, never was, and never will be under a system of
constitutional law George Bush doesn’t recognize in
his continued efforts to flout it recklessly.

Cohn stated: George Bush “has….asserted unparalleled
executive power by putting his stamp of supremacy on
more than one thousand provisions of law (more than
all past Presidents combined) enacted by Congress.”
He “quietly attached 147 ‘signing statements’ to 1132
(law provisions) passed by Congress” even though
nothing in the Constitution permits this practice, and
the Supreme Court banned line-item vetoes.  He abused
his power to rewrite laws to conform to administration
policies and wishes, and Congress and the courts have
done nothing to stop him.

Cohn gave some examples of this practice.  “He issued
his most notorious one” in December, 2005 after
signing the Detainee Treatment Act that prohibits
subjecting prisoners to cruel, inhuman and degrading
treatment and punishment. The statement attached
declared the administration would interpret the law
“in a manner consistent with the constitutional
authority of the President (as a “unitary executive”)
and as Commander in Chief and consistent with the
constitutional limitations on the judicial power.”
Cohn’s translation: George Bush will do as he pleases,
law or no law.  He kept his word in spite of the
Supreme Court’s ruling in Hamdan v. Rumsfeld affirming
habeas petitions of Guantanamo detainees. “His gang
continues” torturing prisoners in violation of the
Detainee Treatment Act and High Court ruling.

Another egregious example followed Patriot Act II (the
renewal of the Patriot Act in even harsher form in
spite of several new provisions regarding
congressional oversight).  George Bush’s signing
statement reserved for him the right to refuse to give
Congress reports it mandated just as he did regarding
previous laws.  Contempt for the law, arrogance and
extreme secrecy have been hallmarks of his
administration. This is one of the many ways he shows
it.

Another one came after Congress enacted a 2003 law
requiring the Inspector General in Iraq inform
Congress whenever officials won’t cooperate with its
investigations. Bush’s signing statement said the IG
had no obligation to keep Congress informed. Other
signing statements flouted laws that:

—Ban US combat troops being used against Colombian
rebels,

—Forbid uses of military intelligence that violate
the Fourth Amendment,

—Require retraining prison guards under Geneva
Convention standards of humane treatment,

—Mandate Iraq civil contractors undergo background
checks,

—Prohibit firing or punishing DOE and NRC
whistle-blowers,

—Require more minorities be recruited for Foreign
Service and Civil Service jobs, and much more.

Cohn noted that the Task Force on Presidential Signing
Statements and the Separation of Powers Doctrine of
the American Bar Association (ABA) condemned the
administration’s use of signing statements as
“contrary to the rule of law and our constitutional
system of separation of powers.”  ABA president
Michael Greco added: “We will be close to a
constitutional crisis if this issue….is left
unchecked.”  Wharton School of the University of
Pennsylvania professor emeritus Edward Herman warned
about the same thing saying: “The brazeness of Bush’s
use of (this practice) is remarkable. But even more
remarkable (is that) it fails to elicit sustained
criticism and outrage (anywhere, and as a result) We
are in deep trouble (and getting increasingly
deeper).”

The law of the land means nothing to George Bush and
his band of rogues. He keeps finding new ways to
subvert it such as unilaterally abrogating treaties
and “courting nuclear disaster.”  Cohn noted he
“thumbed his nose at our obligations under the 1970
Nuclear Non-Proliferation Treaty (NPT)” that’s the
“supreme law of the land under the Supremacy Clause of
the Constitution.” His abuses of power also include:

—claiming the right to develop new type nuclear
weapons,

—refusing to eliminate present ones,

—reserving the right to test new nuclear weapons
that will release radiation into the atmosphere,

—abrogating the Anti-Ballistic Missile Treaty,

—rescinding the subverting the Biological and Toxic
Weapons Convention,

—refusing to consider a Fissile Material Cutoff
Treaty that would prevent more nuclear bombs being
added to present stockpiles,

—provokingly challenging Russia and China by
planning to situate misnamed missile defense systems
(intended for offense, not defense) near their borders
to give the US a nuclear first-strike advantage,

—spending more on the military than all other
nations combined with more large increases planned,

—being the only nation opposed to the 2001 UN
Agreement to Curb the International Flow of Small
Arms,

—Refusing to join 155 other countries as of
February, 2007 in signing the 1997 Land Mine Treaty,

—supplying rogue states with sophisticated weapons
likely to be used aggressively (and $63 billion more
of them earmarked for selected Middle East ones), and

—claiming the unilateral right to wage preventive
wars of aggression under the Orwellian doctrine of
“anticipatory self-defense” using first-strike nuclear
weapons.

These are the reckless acts of a rogue President
claiming to be above the law. Cohn has other ideas
stating “The Constitution is unequivocal. It is George
W. Bush’s job to enforce, not to rewrite, the laws
Congress has passed.”  Thomas Jefferson was also
unequivocal in what he wrote in the Declaration of
Independence:
“That to secure these (unalienable) rights (of Life,
Liberty and the Pursuit of Happiness) Governments are
instituted among Men, deriving their powers from the
consent of the governed, - That whenever any Form of
Government becomes destructive of these ends, it is
the Right of the People to alter or to abolish it, and
to institute new Government (for) their Safety and
Happiness.” 

Conclusion

In response to growing public opposition to the Iraq
war, George Bush committed 50,000 more troops with no
set timetable for their drawdown or withdrawal. Even
worse, he stepped up rhetoric against Iran, pointing
to a possible enlargement of the Middle East conflict
that will be catastrophic for the region and US if it
happens.

The Iraq war alone is an illegal act of aggression and
supreme international crime against peace. Along with
growing numbers in the public, those serving in the
military have a duty to disobey orders that violate
international and constitutional law. In addition, the
Democrat-led Congress is obligated to “convene a
nonpartisan independent inquiry” to investigate prewar
manipulated and distorted intelligence. Cohn believes
high government officials should be held to account up
to and especially George Bush and Dick Cheney.

She noted that DOJ regulations “call for the
appointment of an outside special counsel when (1) a
criminal investigation of a person or matter is
warranted, (2) the investigation or prosecution of
that person or matter (within DOJ) would present a
conflict of interest for the Department,” and (3) it’s
in the public interest to appoint an outside Special
Counsel because a criminal investigation of the
administration is essential.

From what’s already known, the evidence pointing to
criminal wrongdoing (recounted above) is overwhelming
and demands action even though leading Democrats are
conspiratorially involved and should be held to
account as well. Those found guilty (in both
parties)should be prosecuted. If US courts opt out,
the International Criminal Court (ICC) in the Hague
should step in and act as it’s mandated to do.
Although the US is not a signatory, it should move
ahead anyway in the name of humanity and grave threat
it faces if it won’t. That’s the current condition and
danger. The world can’t wait for niceties or hoped for
change that won’t happen unless forced.

The ICC was established in 2002 (by the 1998 Rome
Statute) as a permanent world tribunal to prosecute
individuals for genocide, war crimes and crimes
against humanity.  They were defined by the 1945
Nuremberg Charter drafted by the US and its main WW II
victorious allies to try Nazi war criminals. The court
was mandated to step in and adjudicate in the kinds of
high US officials’ law violations now in question,
demanding redress.  With world approval, it should act
in defiance of the American Servicemembers Protection
Act of 2002 - aka the Hague Invasion Act authorizing
the President to send in the Marines to rescue any
American the ICC detains. He’ll be hard-pressed to do
it if he and Dick Cheney are shackled inside ICC cells
where they belong, and not a moment too soon.

Cohn mentioned other prosecutorial options as well.
Under the principle of “universal jurisdiction,” every
country has the authority to charge and prosecute
anyone committing grievous crimes of war or against
humanity. None so far have acted, it’s unlikely a
single one will be so bold, and that’s why the ICC was
established to act for them.

The shameless Democrat-led 110th Congress has defied
the electorate and ignored its call for action as
well. The public demands what it has constitutional
authority to do - cut off all funding for two illegal
wars of aggression and end them. In defiance, Congress
continues funding open-ended wars with only
disingenuous lip service paid to troop drawdowns and
withdrawals. Further, the Bush administration
continues building a case for war against Iran, with
no just cause or legal standing for it, and Democrats
are rolling over in support shamelessly and
dangerously.

Cohn ends her important book with an impassioned plea
to “stop the Cowboy Republicans” while there’s still
time. She points out what’s needed and clear.  In the
1970s, Congress only ended the Vietnam war after “tens
of thousands of people marched in the streets” against
it, and a near-insurrection was seen possible inside
the conscript military. The anti-war movement today is
large but tepid by comparison, and the military is
all-volunteer making the job harder.

Nonetheless, the need is urgent as the fate of a shaky
republic and all humanity hang in the balance. “Bush’s
hubris affects us all,” Cohn noted ominously. A way
must be found “to demand truth, justice, and
accountability from the Cowboy
Republicans….insisting the Bush gang be held to
account for its high crimes and misdemeanors.” People
must demand an end to war and occupation and act to
prevent another one. What better reason is there than
“Our lives….those of our children (and all humanity)
depend on it.”

Stephen Lendman lives in Chicago lives in Chicago and
can be reached at .(JavaScript must be enabled to view this email address).

Also, visit his blog site at sjlendman.blogspot.com
and listen to the Steve Lendman News and Information
Hour on TheMicroEffect.com Saturdays at noon US
central time.

 


Google