Law Professor Cohn Highlight’s Bush’s Legal Abuses

Tells Progressive Democrats Her Book “Cowboy Justice” Already Out of Date

by MARK GABRISH CONLAN

Copyright © 2007 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Marjorie Cohn, professor at the Thomas Jefferson School of Law in San Diego and president of the National Lawyers’ Guild, came to Giovanni’s Restaurant in Clairemont Thursday, July 19 to talk about the Bush administration’s crimes and legal abuses and to promote her new book, Cowboy Justice: Six Ways the Bush Gang Has Defied the Law. But she admitted that since her book went to press, so much new information about the administration’s attack on law and justice has come out it’s already out of date — and she said the reason she picked only six Bush legal abuses to highlight was that her book would have ended up “about the size of an unabridged dictionary” if she’d tried to write about them all.

“The reason I wrote the book is to put it all together and summarize all the crimes the Bush administration has committed,” Cohn explained. The six Bush crimes she focused on were the illegal war of aggression against Iraq; the use of torture; assassination and the targeting of civilians in the so-called “war on terror”; maintaining the Gulag-like prison at Guantánamo; spying on Americans; and the issuance of over 1,000 “signing statements” in which Bush states that he’s signing a Congressional bill into law but he’s only going to execute those parts he agrees with or that fit his agenda, and ignore the rest.

According to Cohn, the legal principles Bush, vice-president Dick Cheney and the rest of his administration are so blithely ignoring go to the heart of our Constitution and its guarantees of freedom. “James Madison wrote that the preservation of liberty required that the three departments [the legislative, executive and judicial branches of government] be separate and distinct,” she explained. “The colonists made a revolution because they were responding to a political situation, King George III’s agents would just go into people’s houses and tear them apart looking for ‘evidence.’ That’s why our Founders put the Fourth Amendment into the Constitution. The Framers also charged in the Declaration of Independence that George III ‘refused his assent to laws necessary for the public good.’”

Referring to the “signing statements” issue, Cohn said that under the Constitution, only Congress can pass a law — and when it does so, the President has only two options: sign the bill into law, or veto it. During the 6 1/2 years of his Presidency, Cohn explained, Bush has only vetoed three bills — two to expand federal funding of embryonic stem-cell research and one to set up voluntary timetables for the U.S. withdrawal from Iraq —but he’s effectively gutted other bills through “’signing statements’ that he’ll only enforce the parts he likes.” Cohn conceded that Bush isn’t the first president to issue signing statements, but he’s issued more of them than any other president and they’ve been much more far-reaching.

Among the bills Bush has tried to gut with “signing statements,” Cohn said, are John McCain’s anti-torture bill (which itself was far less sweeping than the mainstream media hype made it seem, she explained); the security provisions added to the USA PATRIOT Act when it was reauthorized to limit its incursions on civil liberties; and three bills Congress passed in a vain attempt to protect servicemembers who’ve suffered disabilities in the war on Iraq. One of the bills Bush stuck a “signing statement” on would have limited the number of days after an injury a servicemember could be returned to combat duty. Another would have obligated the Secretary of Defense to report to Congress on the military’s treatment protocols for post-traumatic stress disorder, and a third would have studied whether soldiers with brain injuries were being treated properly. “That’s how Bush ‘supports the troops,’” Cohn said acidly.

“In an end-run around Congress and the Fourth Amendment, Bush ordered a secret wiretapping program to get out of having to comply with the Foreign Intelligence Surveillance Act [FISA],” Cohn explained. This law, passed in 1978 after the U.S. Supreme Court had ruled Richard Nixon’s secret wiretaps unconstitutional, sought to balance national security and the Constitution by setting up a secret five-judge court to hear requests from the White House or the Justice Department for authority to wiretap foreign nationals. Throughout its history, including during the Bush administration, FISA has granted virtually every executive branch request for an order to wiretap — “but that wasn’t good enough” for President Bush, Cohn said.

Not only did the administration set up a proposal to spy on people without court supervision, Cohn said, they lowered the threshold for spying from “probable cause” — the legal standard of the Fourth Amendment for authoring searches and seizures — to “reasonable suspicion” and allowed Justice Department functionaries, not judges, to issue the actual warrants. What’s more, Cohn said, the administration “admitted that they’ve spied on some people in error” — and they tried to keep this entire program secret. The only reason we know about it is the New York Times received a story about it based on a leak.

“Then there are the lies the Bush administration used to get us into the war with Iraq,” Cohn said. “They knew Saddam Hussein was no threat to the U.S. and had no weapons of mass destruction and no love for al-Qaeda.” Cohn said that, contrary to the mainstream media — which in 2002 and 2003 parroted the false claims of the Bush administration and now refer to the Iraq war as a “mistake” that was not fought “competently” — the Bush administration in general and Vice-President Cheney in particular had long wanted to go to war against Iraq and topple Saddam Hussein’s regime.

Cohn ran through her familiar arguments that the war was illegal because according to the United Nations Charter — which, as a treaty signed by the U.S., is equivalent to the Constitution itself, she argued — the only legitimate reasons for a U.N. member to go to war are self-defense or under the authorization of the U.N. Security Council. “There was no possible justification of self-defense, and the Security Council never agreed,” Cohn explained. “Therefore, the war is an illegal war, a war of aggression, the kind that was called at the Nuremberg trials ‘a crime against peace.’”

According to Cohn, the real reasons the U.S. went to war against Iraq were oil and bases. She cited retired UCSD professor Chalmers Johnson’s argument that the U.S. projects imperial power across the world not by ruling other countries directly, but by building giant military bases from which we project power and bend other sovereign governments to our will — and according to Cohn, that practice is happening in Iraq on a bigger scale than anywhere else in the world. “The U.S. has built huge military bases in Iraq, including the so-called ‘Embassy’ in Baghdad, which cost $600 million and is a self-contained city with no need for Iraqi electricity, food or water,” she said.

Cohn also noted that even before taking office as vice-president, in 2000 Cheney commissioned a report from the Right-wing Project for a New American Century (PNAC) which reported that “the need for a substantial American force presence in the [Persian] Gulf transcends the issue of the regime of Saddam Hussein. Another report involving Cheney — a document produced by his secret task force on energy policy in March 2001, six months before the 9/11 attack, that “included a map of Iraqi oilfields, pipelines, refineries, charts detailing Iraqi oil and gas projects, and a list of ‘Foreign Suitors for Iraqi Oil Contracts’.”

According to Cohn, the so-called oil “reform” law both the Bush administration and the Democratic Congress are pressuring Iraq to pass would turn over most of Iraq’s oil to U.S. and multinational oil companies. The force in Iraq that’s holding it up is the oil workers’ union, which has called at least one strike that shut down the Iraqi oil industry altogether — and more than once has got the government of prime minister Nouri al-Maliki to cave on the oil law. Right now, Cohn said, the oil workers’ union has persuaded the government to block implementation of a new oil law until at least October to give the workers a chance to propose alternatives.

The union’s general secretary, Faleh Abood Umara, has told a U.S. journalist that if the oil law the U.S. wants is passed, “it will undermine the sovereignty of Iraq and our people … If the law is ratified, there will be no reconstruction. The U.S. will keep its hegemony over Iraq.” According to Cohn, Iraqi labor leaders have joined a nationalist coalition containing Sunni and Shi’a Arabs and Kurds to demand an end to the U.S. occupation, curtailment of al-Qaeda in Iraq (which, Cohn said, contrary to Bush administration propaganda is a local group that appropriated the name and has nothing to do with Osama bin Laden’s al-Qaeda) and an end to Iran’s growing influence in Iraq. It’s groups like that, Cohn said — not continued U.S. occupation — that hold out Iraq’s best hope for avoiding a bloody civil war.

What’s more, Cohn is convinced that if the Bush administration is allowed to serve out its term, the U.S. will be at war with Iran within a year. She attributes that to the influence of Vice-President Cheney over Bush. She quoted former Watergate conspirator John Dean’s comment that “Cheney lets Bush believe he’s really President” and cited a Washington Post series on Cheney that argued that whenever there’s been an internal conflict within the Bush administration, Cheney’s side has won.

While other figures within the administration, including secretary of state Condoleeza Rice, favor diplomacy over war as a means of dealing with Iran’s nuclear program, Cheney is determined to attack — and, lacking spare ground troops because they’re tied down in Iraq, Cohn said the war against Iran is likely to be fought from the air. Already, she said, the U.S. has sent three aircraft carrier battle groups to the Persian Gulf; and Cohn suspects “there’s going to be an ‘incident,’ like the Gulf of Tonkin, and we will ‘have’ to attack Iran in ‘self-defense.’”

Cohn also reviewed her familiar arguments against torture, pointing out that the Geneva Conventions do not allow it under any circumstances — even the “ticking time-bomb” scenarios beloved of the administration and its defenders — and also mentioned that the Military Commissions Act passed by Congress last year gives the principals in the Bush administration blanket “amnesty” from prosecution under U.S. laws against war crimes. She talked briefly about the attempts to get other countries to threaten prosecution of Bush administration officials under the concept of “universal jurisdiction” — the idea that some crimes are so horrible, any country in the world can punish them even if their nationals were not directly victimized.

This isn’t a new theory; Israel used it to capture, try and execute Adolf Eichmann for his involvement in the Holocaust, and both Britain and Spain used it to seek prosecution of former Chilean dictator Augusto Pinochet. But so far, Cohn explained, the U.S. has been able to pressure countries like Belgium and Germany to back down on invoking “universal jurisdiction” against U.S. government officials, and has signed a broad network of bilateral immunity agreements, mostly with developing nations dependent on U.S. trade for economic survival, to make sure Americans can never be prosecuted in the International Criminal Court — from which Bush unilaterally withdrew the U.S. in 2002, becoming the first president to rescind the U.S.’s signature on a treaty.

On Guantánamo, Cohn said, “Bush is truing to keep the Guantánamo detainees from ever seeing a judicial process. Many people there have no hope at all. It’s a place of incredible sadness and despair. Two hundred detainees have started a hunger strike and three have already died.” In order to stop the hunger strike, the U.S. has enlisted doctors to force-feed the prisoners, itself a breach of medical ethics. Cohn gave a gruesome description of the force-feeding process, in which a tube is inserted through a person’s mouth into their stomach. When this is done at Guantánamo, no anaesthetic is used and the tube isn’t even sterilized or cleaned between uses, “so each prisoner gets to see the blood and bile of the prisoner who was force-fed before him,” Cohn said.

Cohn also said that Bush has become the first president since Nixon to assert the “right” to assassinate any person anywhere in the world, rescinding the executive order banning targeted assassinations issued by Gerald Ford and renewed by every president since. “Then there are the extraordinary renditions, sending people to other countries to be tortured,” Cohn said. “Oftentimes CIA agents go along, so that after they’re tortured they can ask them questions. … There’s an interesting quote from a former CIA agent that said, ‘If you want a serious interrogation, you send the prisoner to Jordan. If you want them tortured, you send them to Syria. If you want someone to disappear and never be seen again, you send them to Egypt.’ It’s like a checklist.”

Summing up at the end of her lecture — at the point where it’s customary for a speaker to tell us what we should be doing about the evils she’s described — Cohn said, “Impeachment is a no-brainer. Bush’s picture is right next to the words ‘high crimes and misdemeanors’ in the Constitution. But it’s not just about impeachment. It’s also about holding them accountable in criminal law, and there’s also universal jurisdiction. We’ll have to figure out a way to get around the amnesty Congress gave Bush and his gang, but hope springs eternal. That’s what I see here tonight, that’s what I saw when I attended the World Social Forum, and that’s what I’m seeing from the unions in Iraq.”