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LOS ANGELES DAILY JOURNAL
FRIDAY, JULY 13, 2007
 PAGE 6

By Marjorie Cohn
Our Founding Fathers created three separate but co-equal branches of government to check and balance one another so that no one branch would become all-powerful. Indeed, James Madison wrote in the Federalist Papers, “The preservation of liberty requires that the three great departments of power should be separate and distinct.” Madison warned, “The accumulation of all powers, legislative,
executive, and judiciary in the same hands … may justly be pronounced the very definition of tyranny.” The American colonists were reacting against a police state.

 More than 200 years later, we have another King George.  In the last six years, George W. Bush has sought to accumulate all governing powers in the same hands — his. In the Declaration of Independence, the framers charged that the king “refused his Assent to Laws, the most wholesome and necessary for the public good.” Bush has repeatedly violated the Constitution’s command that the president “shall take Care that the Laws be faithfully executed,” by breaking some and refusing to enforce others.

The Constitution grants Congress the power to make laws by passing a bill through both houses. The president can only sign it or veto it. Bush, however, takes a different tack. He has vetoed just three bills, then quietly attached “signing statements” to more than 1,000 congressional laws, indicating his intent to follow only those parts with which he agrees. In an end run around Congress and the courts, Bush secretly authorized the Terrorist Surveillance Program to conduct electronic surveillance without a judicial warrant, in violation of the Foreign Intelligence Surveillance Act and the Fourth Amendment. Although
two judges on a three-judge panel of the 6th U.S. Circuit Court of Appeals ordered the dismissal of a lawsuit challenging the legality of Bush’s spying program for lack of standing, the only two judges ever to rule on the merits declared the program illegal.

The Bush administration lied to Congress to get authority to invade Iraq. Long before the 9/11 terrorist attacks, Bush and his officials were planning to attack Iraq and change its regime. Vice President Dick Cheney’s secret energy task force supposedly drew up maps of Iraq’s oil fields to divvy up the black gold once we occupied that country. It then devised an elaborate scheme to convince the American people that Saddam Hussein posed a threat to the United States, notwithstanding overwhelming intelligence to the contrary.

Since Bush launched “Operation Iraqi Freedom,” more than 3,600 American soldiers and tens of thousands of innocent Iraqis have died; many thousands more have been wounded. This invasion is a war of aggression, which violates the United Nations Charter, because it was neither executed in self defense nor approved by the Security Council.

During the war, U.S. troops have been acting under rules of engagement — free-fire zones — that may have led some to commit war crimes. For instance, the killing, execution-style, of 24 civilians at Haditha, the execution of a disabled man, and the shooting of a wounded, unarmed Iraqi in a mosque
violate the Geneva Conventions, which prohibit willful killing of civilians. Commanders, all the way up the chain to the commander-in-chief, could be convicted of war crimes if they should’ve known their subordinates would commit them and the commanders didn’t stop or prevent it. Bush’s legal eagles, particularly David Addington and John Yoo, concocted elaborate legal arguments to justify the torture of prisoners. Never mind that international and American law forbid torture under all circumstances.

Pursuant to a common plan to violate the Geneva Conventions and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, prisoners in U.S. custody allegedly are being tortured and abused. Prisoners are said to have been subjected to water-boarding, attacks by dogs, sexual humiliation and excruciatingly painful force-feeding.

The Bush administration has secretly rendered prisoners to other countries to be tortured. One former CIA agent observed, “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 — never to see them again — you send them to Egypt.”

Shortly after 9/11, the Bush gang set up a prison camp in Guantánamo Bay, Cuba, intending to create a legal black hole where they could hold prisoners for the rest of their lives without any judicial oversight. But the Supreme Court didn’t buy the administration’s argument that U.S. courts have no jurisdiction over Guantánamo because it’s in Cuba. The court subsequently struck down Bush’s original military commissions since they violated the Uniform Code of Military Justice and the Geneva Conventions. In 1935, the Supreme Court said in Berger v. United States, 295 U.S. 78, that a prosecutor’s job is to see that justice is done, not to politicize justice. But Bush’s Department of Justice, the chief law enforcement agency in the government, has been seriously compromised.

Several U.S. attorneys who refused to bring frivolous charges that would further Bush’s political agenda, or who brought charges that didn’t, were purged. Most recently, Bush commuted Lewis “Scooter” Libby’s 30-month prison sentence. In so doing, Bush signaled his complicity in the obstruction of justice of which Libby was convicted. Cheney and Karl Rove had initiated the smear campaign to punish Ambassador Joseph Wilson and his wife, Valerie Plame, after Wilson publicly debunked the centerpiece of the administration’s lies about weapons of mass destruction in Iraq.

During his trial, Libby subpoenaed Cheney and other top Bush officials to support his defense that he was the fall-guy for his superiors. But Libby ultimately backed down and presented almost no defense to the charges. The only logical explanation is that Bush promised Libby he would never see the inside of a prison cell. The quid pro quo: Libby keeps his mouth shut about Cheney and Rove’s involvement in the conspiracy. With the commutation, Bush made good on his promise.

Why didn’t Bush simply pardon Libby and wipe his record clean? Because then Libby would be precluded from asserting the Fifth Amendment in any future criminal or congressional proceeding, and he would be susceptible to depositions in the Wilson/Plame civil lawsuit. This calculated commutation preserves his appeal rights, and thus his Fifth Amendment claim. It is a continuation of the cover-up.
James Madison warned, “if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty.”

The White House is resisting congressional subpoenas that call for testimonial and documentary evidence about the U.S. attorney firing scandal. The deadline for Bush, Cheney and the Justice Department to produce documents in response to Senate Judiciary Committee subpoenas about the warrantless surveillance is July 18. In 1974, when the House Judiciary Committee passed three articles of impeachment against President Richard Nixon, Article III charged refusal to comply with subpoenas during the Watergate hearings.

Responding to the Libby commutation, House Speaker Nancy Pelosi said Bush “abandoned all sense of fairness when it comes to justice, he has failed to uphold the rule of law, and he has failed to hold his administration accountable.” Maybe now she will put impeachment back on the table.

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Marjorie Cohn is a professor at Thomas Jefferson School of Law in San Diego and President of the National Lawyers Guild. Her new book, “Cowboy Republic: Six Ways the Bush Gang Has Defied the Law,” has recently been published by PoliPointPress.