Could the Press Grow a Spine?

The constitution was intact until Bush was elected.

Arthur Kramer

OK, Art. Put up. What part of the Constitution is no longer intact?
What has been fractured and by what specific Bush action?

Bush usurped the Constitution.

I was speaking from memory a bit earlier.

From the News Hour last night (6/23):

EUGENE FIDELL: I think there were some aspects to the original memoranda that
were extremely disturbing; specifically the notion that the president, as
commander in chief, was essentially above the law.

And I think that, if anything, that set off a firestorm of controversy here.
What I see is a lot of government time... lawyer time being expended on a
subject that most people I think would consider off limits in any event.

RAY SUAREZ: Were you comforted, reassured, by the tone of some of the
communications in response to those original memos -- not affirming their
findings?

EUGENE FIDELL: No, I was dismayed, as a matter of fact, because this sort of
dialogue that had been going on, conversation within the executive branch,
continued on and on within terms of reference that I thought were very, very
surprising. I was shocked by the whole conversation, actually.

RAY SUAREZ: Professor Wedgwood, I ask you the same question. What did you
conclude from watching this evolving communication between the White House and
its lawyers?

RUTH WEDGWOOD: There were a lot of memos that got released in the last couple
of days and I think we are all digesting them still.

I think what bothered a lot of people, including me, about the original way
that the memos were framed is it seemed to be worrying as much about potential
criminal liability as what should be the standards that we choose to govern
ourselves by or that we're committed to govern ourselves by, by international
law, i.e., the relevant question is not simply is there a felony that attaches
to conduct but rather what should we do, which is why I took some comfort today
from the president reiterating again in the most imperative terms that the
standard has to be humane conduct.

RAY SUAREZ: In the written communications, do you have that same reassurance?
Do you think the government came down in the right place?

RUTH WEDGWOOD: The office of legal counsel has always had a function that is
much like a court because there are questions that the executive branch has to
address that may never get to court.

So OLC, which is an entirely obscure agency in justice, has always been seen as
quite dispassionate or at one step removed from the fray, not operational.

So I suppose my first critique is that they should have apprised the president
more thoroughly of the differences, of the view that others were likely to
take.

One can propose an idiosyncratic view, a dumbed down view of torture that is
only organ failure, but if 97 percent of the world does not agree with you or
99, you should apprise the president of that so he can make an informed
judgment about how he will fulfill the American duty to be humane.


Conditions of prisoner abuse

RAY SUAREZ: There was still a lot of conditional declarations, weren't there,
that laid out a case and then said but, on the other hand, here's this case,
where conventions may not apply, where the detainees are not like ordinary
POW's, that still reserve the right to use the harshest physical treatment?

RUTH WEDGWOOD: There are a lot of different both treaties and standards of
customary law that can apply here. Most of the law of armed conflict is not
written down – it's customary law -- but it is still real law.

One of the arguments I did not like in the early January memo is the claim that
because customary law may not be part of domestic law, that therefore it is not
worth considering. It is still international law.

Other countries have the right of so-called diplomatic protection of their
nationals and how they're treated. So we have to be mindful surely of
international standards, whether or not Congress has translated them into
domestic law.

RAY SUAREZ: Eugene Fidell, though the administration has rejected many of the
early legal opinions, didn't they, at the same time reserve for themselves the
ability to in the final analysis to use harsh physical measures that Geneva
Conventions might consider torture if they feel it's necessary?

EUGENE FIDELL: That's exactly right. That's one of the things that's very
disturbing. What you get if you read all of the memos, you come away with a
sense that all options remain open; that one of the objectives being served is
to effectively immunize U.S. personnel against prosecution for misconduct. This
is one of the things that's most disturbing. Can I give you an illustration?

RAY SUAREZ: Sure.

EUGENE FIDELL: There is a legal memorandum that was prepared by the judge staff
advocate for the U.S. Southern command that says this: regarding the uniform
code of military justice, the proposal to grab, poke in the chest, push
lightly, and place a wet towel or hood over the detainee's head would
constitute a per se violation of the assault statute, military statue.

Threatening a detainee with death may also constitute a violation of that
statute or the statute on communicating a threat -- "it would be advisable to
have permission or immunity in advance from the convening authority," the
military commander, "for military members utilizing these methods."

What this is is a road map for permitting, condoning criminal conduct. And to
see this in a legal memorandum, I have to say, I almost fell out of my chair
when I read that.

RAY SUAREZ: Ruth Wedgwood?

RUTH WEDGWOOD: Well, I think some of these have a certain macabre quality. I do
think that the centerpiece of attention ultimately after they rescind the memos
because it is unprecedented act that the administration took yesterday of
rescinding an office of legal counsel memo – to my knowledge, it has never
happened before.

They have promised to review them all, vis-Ã*-vis interrogation standards. But
I think the important question going forward is to look at what is acceptable
and not acceptable given our values, given our law, given what we want to be
seen as in the world in interrogation methods.

There are people involved in this process who I think are moral human beings.
They intend to be. They face a difficult situation where it seems to have been
case in the fall of 2002.

They thought there was an intelligence spike and they worry that the two
alleged al-Qaida guys at Guantanamo might be the key to preventing those
attack. So one can't deny that there are exquisite moral dilemmas here but I
think the key is to resolve them in a way that we are proud of.


The legal issues associated with the memos

RAY SUAREZ: Well, I don't want to get into how many angels can dance on the
head of a pin kind of arguments but I do want to understand the mechanics. You
talk about rescinding the memos -- does that mean the administration says, by
doing so that it rejects all the reasonings, or is there kind of a laundry
list, things that they may think are still true in there like powers that in
here in the commander and chief -- the ability to decide whether prisoners are
covered by the Geneva Conventions or not -- that they still may find valid
although they reject the overall conclusion of the memo.

RUTH WEDGWOOD: Well, that they have been rescinded subject to rewriting and
reconsideration and promised that all issues be reconsidered.

If I had to be a book maker, I would guess that one that is likeliest to
disappear is the claim that the president has an absolute power that can never
be touched by Congress, that even if Congress passed the statute, that they use
the "P" word, the president nor his employees may do the following kinds of
acts.

The claim that he was immune from that statute, that Congress didn't have the
power to reach that act, even though Congress's power under Article 1 of the
Constitution gives them the right to prescribe rules for the governance of the
armed forces. That was an audacious claim. It's not part of this necessary
conversation. And I think some things like that will disappear.

RAY SUAREZ: Is it unusual for you as a lawyer to be able to see the evolution
of a policy debate in documents like this?

EUGENE FIDELL: It's very unusual. Internal government legal memoranda are
typically not made public.

On the other hand, in this case, we have a number of effectively opinions of
the attorney general and I remember when the whole question of prisoner of war
status for Taliban and al-Qaida came up, thinking, gee, I bet there is an
opinion of the attorney general floating out there. It never came out or never
came out until over two years later.

My personal view, Ray, is that on matters that so close to the nation's
interest, every possible document that can be made public ought to be made
public.

Some of this is not going to make much sense to laypersons but it's important
that lawyers in our society, the lawmakers in our society, the legal academy,
be able to bring their critical skills to bear. You can't do that if you don't
have the hard copy.

I think there is an issue, it's not just the question of moving forward in
terms of how particular policies of interrogation play out, as well by the way
as who should be punished for what here because there are cases, as we all
know, pending in the pipeline for Abu Ghraib.

But it also has to do with policy towards transparency and the government's
legal apparatus. We can't allow every bit of legal advice that every official
decision maker, including the chief executive receives to become, you know,
public the next day necessarily.

But I certainly think that policy on that question of transparency has to be
revisited. Incidentally, there is a similar question in the U.K., the United
Kingdom , where the British government has resisted making public some legal
advice received from Lord Goldsmith, the attorney general there.


Â* Should the government release more documents?

Â* RAY SUAREZ: Well, much of it is out but by common consent, not all of
it. Do you think all of it needs to be released, professor?

RUTH WEDGWOOD: Well, the argument you hear on the other side is if you tell
al-Qaida or whoever that exactly what they should expect, even within certainly
the boundaries of humaneness, it is easier for them to train against the
techniques.

So I think what happened in the last day or two is really quite an
extraordinary event in the sense that administration understands that after Abu
Ghraib, people are so troubled, they're troubled.

They want to know where it came from, that you have to have a transparency that
really is probably unprecedented.

I do think and here I surely agree with Gene, is that the on issues of this
gravity, you want this kind of discussion to be one that's taken with more
advice, perhaps, than one had in the very small inside loop.

There are checks and balances in the government. It's wonderful to see how
uniform guys, even with careers in front of them, are duty bound and not afraid
to speak their mind and Secretary Rumsfeld reconsidered things when the JAGS,
the Judge Advocates General complained. That's a healthy check and balances.

The Congress is going to want to be involved in this now. I think it is going
to be a much broader conversation and frankly after Abu Ghraib, which even DOD
I think wonders how it happened. It is probably inevitable.

RAY SUAREZ: Thank you both.

EUGENE FIDELL: Thank you, Ray.



http://www.pbs.org/newshour/bb/white...ners_6-23.html

Walt

"WalterM140" wrote:

These legal experts all agreed that they had never seen anything like this
before. One of them said he "almost fell out of his chair" when reading
these
documents recently released.

He almost fell out of his chair because someone suggested it was legal "poke
in the chest, push lightly...." a detainee?

"WalterM140" wrote

[.]

There are checks and balances in the government. It's wonderful to see how
uniform guys, even with careers in front of them, are duty bound and not
afraid
to speak their mind and Secretary Rumsfeld reconsidered things when the
JAGS,
the Judge Advocates General complained. That's a healthy check and
balances.

Your reference says "healthy check and balances" - so what part of the
Constitution is no longer intact?

lease. The last thing the left wants is Constitutional government.

I could not find anything in US Constitution that allows Pentagon Generals to
plan and execute PSYOPs aganist their own civilian superiors in Washington or
aganist Sayered Duvdevan in Iraq.

If you could find something please let me know.

Cheers

Is he still "highly decorated" if he threw his awards away?


Yes, and still wounded three times.

What it shows when people condemn Kerry and support Bush s that they:

Have an agenda

Or:

Don't understad what's going on.

Bush has a 16 month break reflected in his chronilogical record of service.

Kerry has a Silver Star, a Bronze Star, and three purple hearts.

When people attack Kerry on his integrity, backbone, spine, whatever you want
to call it -- think about Bush's record.

Walt

Ed Rasimus wrote:

As I regularly tell students, political questions are complex and
nuanced. They usually exhibit two opposing positions with deeply held
convictions. The hard part is to rise above the pig-wrestling and
listen to the other side's argument, demand that both sides offer fact
and reason, then make objective rather than subjective choices.

Ain't easy.

Has it *ever* actually been that way though?

I'm reading a bio of Ben Franklin (for months now) and am at
the point where he loses his seat in the PA Assembly due to
efforts of "The Proprietors" to oust him.

The Proprietors were basically the Penn family that owned
PA, ran estates there exempt from taxes, etc, etc, etc.

A pamphlet war against Franklin made outrageous claims
(some based on seeds of truth) that put modern political
debate and especially ads to shame.

This sort of character assassination in the guise of
political debate was common political currency from the
founding of the US right up to the late 1800s when electioneering
seemed to become more civil (though still filled with the
smoke filled, back room wheeling and dealing). Washington,
Adams, Jefferson and Jackson seemed especially victimized
by this sort of politically driven, savage personal attack.

Sitting back and coolly considering the evidence for a
decision seems more the realm of scientific method and
even that gets nasty at times.


SMH

I've got an SSM and five DFC's, but no PH.

George Bush has neither SSM, DFC or PH.

In fact, his chronolgical record of service has a 16 month gap.

-He- has no right to denigrate the service of a highly decorated WIA
veteran
like Senator Kerry, or to have his surrogates do it.

Walt

Show me ONE case where Bush did that. The only people who consitantly bring
up
military service are on the Kerry side.

I don't have a source, but the Bushies got someone, I believe a Navy corpsman,
to come forward and say that Kerry's third wound was just a scratch.

And I know they've had people come forward and belittle the fact that he took
the third wound reassignment option.

But Bush -- Bush has a 16 month gap in his chronilogical record of service.
And the 10/01/73 entry is just adminstrative. Bush can't prove he was present
for duty for a two year period.

He and his surrogates have no right to belittle the service of a decorated WIA
veteran.

It's working though. There are decorated verterans on this NG that will
belittle the hero and support the shirker.

Maybe the reason Art's generation is called "the Greatest Generation" is
because he sees through Bush's bull**** screen.

Walt

Please come up with logical arguments if you can.

It's all just personal attacks, isn't it?

The record sure won't support you.

There's a 16 month break in Bush's service from 5/26/72 to 10/01/73:

http://users.cis.net/coldfeet/doc10.gif

Kerry is a bona fide hero. Bush is and was a shirker. I cal him a shirker now
because he has refused (or perhaps he's incapable) to admit a single mistake.

Walt

"Pete" wrote in message
...

"WalterM140" wrote in message
...

(Snip)

Is he still "highly decorated" if he threw his awards away?

In a word, "yes". The only way anyone can say "no" is if they can produce a
bona fide special or general order that rescinds or revokes the original award.

George Z.

"WalterM140" wrote in message
...

(Snip)

What part of separation of powers escapes you?

The founding fathers were very concerned about usurpation of power by the
executive branch.

Bush has usurped the Constitution and he has to go.

He doesn't need to have usurped Constitutional powers to justify turning him
out.....lying to the Congress and to the public to justify starting a war ought
to be enough by itself.

George Z.