Peter Dyer: Nuremberg and Iraq

Monday, 22 September 2008, 11:58 am
Column: Peter Dyer

Nuremberg and Iraq

by Peter Dyer

Sixty-two years ago this month, four judges met to deliberate the fate of the first men ever tried for war crimes in an international court of law.

After Nazi Germany was defeated in 1945, the major victorious allies (the United States, the Soviet Union, Great Britain and France) convened a trial of 21 of the most prominent Nazi government, military and media figures in the Palace of Justice at Nuremberg, the spiritual home of Nazism.

Another German, Martin Bormann, was tried in absentia.

The Allies drew up a charter establishing an International Military Tribunal (IMT) as the legal basis for prosecution of these men for three distinct categories of crimes: crimes against peace, war crimes and crimes against humanity.

The defendants were also charged with “participating in the formulation or execution of a common plan or conspiracy” to commit these crimes.

The bench was made up of one judge from each of the four allied countries. The trial began on 20 November 1945. Nine months later, on 31 August 1946 the trial closed as the defendants made their final statements.

The judges announced their verdicts on 1 October. They found nineteen of the defendants guilty of one, some, or all of these crimes. Twelve, including Martin Bormann, were sentenced to death. One, Herman Goering, Germany’s number two Nazi, committed suicide before his scheduled execution.

Three were acquitted and seven received prison sentences. Ten were hung.

The 1946 trial was the first of a series of four Nuremberg trials which continued until April 1949.

While the Nuremberg trials are, these days, seldom invoked or discussed, they were and still are, in the words of Tribunal President Sir Geoffrey Lawrence, “unique in the history of the jurisprudence of the world”. Among the most groundbreaking aspects was the drive to formally criminalise the three categories of crimes, and to establish responsibility by individuals for these crimes. This was simply unprecedented.

The effort to try the Germans in an international forum was directed in large part by the United States. The chief U.S. prosecutor, U.S. Supreme Court Justice Robert Jackson, opened the prosecution.

Today, when the Nuremberg trials are remembered, they are remembered primarily for the prosecution and punishment of individuals for genocide. Equally important at the time though, especially in the first trial, was the focus on aggressive war.

Thus, the first sentence of Justice Jackson’s opening statement:

“The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility.”

Crimes against peace and the responsibility for them were defined in Article 6, the heart of the Charter of the IMT: “The tribunal…shall have the power to try and punish persons who…whether as individuals or as members of organisations, committed any of the following crimes…for which there shall be individual responsibility: (a) Crimes Against Peace, namely, planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances…”

The desire was not only to punish individuals for crimes but to set an international moral and legal precedent for the future. Indeed, before the end of 1946, the United Nations General Assembly unanimously adopted Resolution 95 (1), affirming “the principles of International Law recognised by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal.”

Founded in the aftermath of World War II, the United Nations invoked in the first sentence of the preamble, the single most fundamental goal: “…to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind…”

To this end the United Nations Charter explicitly forbids armed aggression and violations of the sovereignty of any state by any other state, except in immediate self defense (Article 2, Sec. 4 and Articles 39 and 51).

Invoking the precedent set by the United States and the Allies at Nuremberg, there can be no doubt that the U.S. led invasion of Iraq in 2003 was a war of aggression. There was no imminent threat to American security nor to the security of the world. The invasion violated the U.N. Charter as well as U.N. Security Council Resolution #1441.

As a war of aggression, the invasion falls into the Nuremberg category of Crimes Against Peace. As such, there is individual responsibility for this crime.

Thus, if Americans chose to be bound by the precedent which they helped set and for which they punished leaders of World War II Germany, they would arrest and prosecute those individuals responsible for the invasion of Iraq: George W. Bush, Dick Cheney, Donald Rumsfeld, Colin Powell, Condoleezza Rice and their enablers in government and in the media.

Those who justify the invasion of Iraq, invoking the U.S. self-declared mission to rid the world of evil, would do well to remember the words of Justice Jackson: “Our position is that whatever grievances a nation may have, however objectionable it finds the status quo, aggressive warfare is an illegal means for settling these grievances or for altering these conditions.”

And, for those who have difficulty visualising American leaders as defendants in a criminal trial, Justice Jackson’s words again: “(T)he ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law. And let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn, aggression by any other nations, including those which sit here now in judgment. We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law. This trial represents mankind’s desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world’s peace and to commit aggression against the rights of their neighbours.”

*************

Peter Dyer is a freelance journalist.

Treason: President Illegally Thwarted FBI From Monitoring Chinese Spies

By testing - June 11, 2008, 8:06PM

Rep. Kucinich presented articles of impeachment against the President. There is more news.

Confronting the Domestic Enemy

The New York Times reports the President gave permission to Chinese spies to wander the halls of Guantanamo, enjoying watching illegal POW abuse:

"Chinese interrogators were permitted to go to Guantanamo"

But there's more to the story.

Thwarting Enforcement

The NYT reports the FBI's General Counsel, when reviewing this illegal torture at Guantanamo, was not given access to critical information, indirectly connected with the Chinese spies.

When the FBI General counsel "asked to read classified legal opinions on torture in 2004, she was refused access, and still has not seen them."

This President illegally thwarted this FBI from monitoring the Chinese spies in Guantanamo, or from seeing what policies and procedures the Chinese observed.

The President refused to allow the FBI's senior legal counsel to see those memos, thwarting
the FBI from ensuring our nation is free from foreign spies, or understanding what they were watching.

Lawyers can't get access. Foreign spies can.

These issues raise important issues not raised in the articles of impeachment against the President. Treason is defined:

18 USC 2381

"whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States."

Illegal Orders Cannot Be Obeyed

The treasonous acts of this President must be immediately confronted. Until we learn more, all his orders must be presumed illegal. The Secretary of Defense must issue stand-down orders to the military. The nation must proceed with caution. We are being mis-led by an illegal tyrant.

The President must be confronted through an impeachment investigation and removed from office. Until this President is removed from office, the public must discuss the Nuremberg Trials and new oversight for the United States.

Impeachment as a Legal Strategy

Contrary to some claims, impeachment is a tool to enforce the laws of war, and punish leaders. It is a legislative tool for the Congress to use when the President, as now, refuses to permit law enforcement to prosecute. It is not correct to label impeachment exclusively as a political tool. Impeachment is a legal weapon to put to the throat of tyrants.

Nowhere does the Constitution nowhere say anyone must follow the Congress when the Congress joins the President in a rebellion; or refuses to challenge tyranny. Impeachment is a lawful assault against tyranny. It must be led. This Congress refuses.

Legal Requirement To Impeach

Some incorrectly believe there is no requirement to impeach. Nuremberg was very clear on this point: A civilized nation must either prosecute or impeach. When impeachment is not used to enforce the law, prosecutions must be used, and vice versa:

"Under any civilized judicial system he could have been impeached and removed from office or convicted of malfeasance"

The oath of office is to the Supreme Law, including the Geneva Conventions. The promise is to enforce the laws of war, and keep faith with the lessons of Nuremberg.

Where there is no prosecution, impeachment is required. With neither, we
cannot call ourselves part of the family of civilized nations. Accordingly, we are not obliged to follow this Congress; nor embrace
the fiction a legal challenge is merely a partisan exercise. With this list of abuses, Congressional inaction obliges prosecutions of a sitting President.


State Inaction, Complicity



The requirement is to enforce the Constitution. However, the State legislatures have refused to pass proclamations asking for Congress to investigate. The State attorney generals have refused to prosecute this sitting President, as required under Nuremberg precedents.

The State's leaders, with this Congress and President , are in illegal rebellion, against the Constitution. Where prosecutions and impeachment are thwarted -- as now -- we must discuss new leadership, and new oversight.

No More Abuse

It is irrelevant that there is "not much time" until the President's term is over. This President has committed multiple war crimes, and will not allow the United States to review his illegal activity. Each day he remains in office is one more day of tyranny.

Who supports following this traitor? His loyalty is not with the Constitution. Our loyalty is to neither party: Their loyalty is with tyranny. We cannot choose between the same, nor continue down this path. This must end.

The prize is the Constitution. The illusion is whether partisan gain should justify inaction. It cannot. This President must be arrested. He must be jailed. He must be prosecuted for war crimes. Now.

All foreign powers must revoke their promises to this President to provide any assistance in avoiding a war crimes trial. Foreign powers must end their cooperation with this traitor.

What may or may not happen next week or in an election is unrelated to the legal obligations each of us have to defend this Constitution. Now.

Confront the Senate

The Senate must be forced to confront the evidence, and put their name to their decision whether to remove or not remove this President. The Senators must be required to commit to a decision to side with this traitor; or side with the Constitution. The Senators must be forced to decide. Then commit.

Anyone arguing that Cheney "might" become President makes a frivolous excuse. You cannot use the fear of success in removing a tyrant as an excuse to justify defeat and inaction. That defies reason.

You are implicitly arguing that the Senate might remove the President -- This is only possible if there is evidence warranting removal. Then let the Senate see that evidence and make their decision. Then, the voters can decide whether the Senators should be removed. In an election. As the Framers intended.

If there is evidence warranting Presidential removal and the Senate removes the President, then the same evidence would justify the removal of the Vice President. The Senate will have two chances to prove it remains loyal to tyranny.

Leadership to Confront Tyranny

The substantial work behind the investigations will build on what some have started. The problem is not a lack of evidence, but a lack of leadership to present this evidence to the Senate.

If it will take time, then let us start now. It may take 17 GOP Senators to break ranks. It may also take 300 million Americans to break ranks with the Senate, and support a new system of oversight. We outnumber the rebels in the Senate.

The Constitution remains our only requirement. The speculative outcome of an election has no bearing on our legal obligation today. The voters must have the information:

Are the leaders willing to stand against tyranny with the Constitution; or must the voters discuss a new solution which will compel the leadership to stand against tyranny, as this Constitution and oath require.

It is speculation that there will be nothing else that might go wrong. We have yet to see leadership to confront what is wrong, nor a path to to what is right.

The Framers provided us with the roadmap: The Constitution, and the rule of law over tyrants. Impeachment is a power of Congress; and the Framers reserved the prosecution power to the States.

All powers not delegated are reserved. The Congressional decision on impeachment is not a final decision on confronting this tyrant. That decision of inaction is evidence which can be used against Members of Congress: Malfeasance.

Partisan Gains For Tyrants At Expense of Constitution

The GOP has deluded the DNC to believe inaction against tyranny is good for the election goals of the leadership. No, their factional political goals serve the lesser beast of tyranny; the higher prize is the Constitution, which requires our unwavering loyalty.

The attorneys in office must now explain why the refuse to prosecute. They see the problem. A call to impeach must be matched by a parallel effort to prosecute. We see neither. The Congress cannot be sure it will see our continued support for their illegal rebellion.

The moral high ground demands we start. The excuses not to start today -- on the speculative promise of what may happen tomorrow -- is magical thinking, not leadership nor statesmanship. The Constitution requires something other than magic: Resolve in the pursuit of justice, and the lawful assault on tyranny.

The certainty is the abuse. What is uncertain is why the excuses carry any weight. They are illegal excuses to put something other than the Constitution first, and avoid confronting this Presidents illegal defiance of the Supreme Law.

No one has credibly justified any excuse to avoid finding facts. The House cannot reasonably avoid an investigation on the speculation of what the Senators may or may not do. This would ask that we avoid breathing because the air might be stale. The former is required; the latter is speculative.

The voters will observe whether the Senators -- when confronted with the evidence -- have or have not acted reasonably to protect the Constitution. No one can credibly argue the voters should be abused twice: First with the original treason; then with the excuses not to confront that treason. We are Americans with rights to assert, not slaves cowering in fear. The Framers expect nothing less.

Waning Congressional Relevance

Perhaps you believe something else should be done, believing the Congress has no role. Then make the case the Congress should continue in its present form: Irrelevance. That defies reason. One cannot credibly argue for disorder as if it were speculative. That disorder is Congress and certain. Our job is to confront the Congress. Make the Congress act, otherwise, inspiring us to lead the Congress to a new solution.

Chasing A Lesser Prize At Expense of The Prize

Some suggest "nothing" can be done by way of investigations for the next six months. Indeed, Congress remains in session because they put other things before their primary loyalty to the Constitution. That is an illegal decision. Their agenda is tyranny and a smokescreen to the Constitution.

The Prize is not the White House, but the Constitution. The former is a political goal; the latter a legal requirement. McCellan shows the former has trumped the latter. That must end. Now. To argue otherwise parrots the political excuses of these tyrants. That is not change nor a prize, but tyranny.

Congressional Complicity With Illegal Policies

Our system of government divides power. Congress is part of the policy making. Nuremberg is the precedent to prosecute Members of Congress for refusing to support either impeachment or prosecutions; and for their actively thwarting both. Illegal policies can be adjudicated as war crimes. Note the language in the Nuremberg indictment assigning responsibility to policy makers:

"They were organized according to the Leadership Principle and were
charged with planning, developing and imposing upon their followers the
policies of the Nazi Party."

Congress has sole power through Article 1 Section 8 to raise and support an army and establish rules and policies. They have the power to end funding when the President will not cooperate with oversight. Congress refused.

Illegally.

Congress shares the responsibility for the war crimes and the illegal policies. They were part of the planning, they did develop strategies, and they imposed their decisions on the American public. They were part of the reviews. Working hand-in-glove with the President. McClellan well outlines what this President did. The Congressional inaction on these offenses binds the DNC leadership with the GOP and this President. They are different peas in the same pod of tyranny.

Some have suggested we've seen this before; or that this tyranny will continue; and that nothing will end this. That is not certain. The Framers rejected the status quo because it could not continue. As today. This tyranny must end. Or this US government must be subjected to new oversight. The Framers saw the vision: Free people can protect rights and constrain power. This Congress has lost that vision. It attacks rights and abuses power. We will not silently agree with this tyranny. It shall be confronted. Now.

The power you need to prevail over this tyranny exists. It is inside of you. You have the power to prevail. You have the wisdom to choose between tyranny and freedom; between traitors and leaders; between the rule of law and rule of man. You are free to choose. Reward goes with one; punishment with the other.

You Are Key To Defending the Constitution

You, reading this now, are important in this struggle against tyranny. Never forget that. You have the wisdom to see the wrong; the sense of know the injustice; and the tenacity to see the connection between Nuremberg and this President's rebellion. It cannot go unchallenged. Not by this Congress, nor by anyone. But they have chosen rebellion. He and this Congress are the threats to this Constitution.

Impeachment Investigation Important For Voters

It is premature for the voters to make an informed voting decision. The voters must see leadership gather facts, in public, and convince us they are serious about leadership. Even if the leadership does nothing, that indecision is important. The Congress cannot pretend we didn't do our best. This Congress has not yet done its worst.

The voters have been reminded -- repeatedly -- this crew is not serious. We are not obliged to remain loyal to their rebellion. Our loyalty must be with solutions. The facts will help us understand what is wrong; then evaluate which of the two Senators -- Obama or McCain -- are best poised to confront the facts, and lead us to a solution.

Let the Candidates' Actions Speak Volumes

The Senators must go on the record. They cannot lead us to what is right until they confront what is wrong. They must demonstrate -- now -- as Senators they can embrace the facts, and build to what must be done. Until they show they can lead in the Senate to confront reality, no one should be deluded -- on assertion alone -- to believe either is qualified to lead change. They must demonstrate in the Senate what they would promise as President: Leadership to confront facts and decide what to do.

The voters must see how the two Senators confront these war crimes. Do they stand up for the Constitution and Geneva Conventions; do they attempt leadership; do they discuss solutions and reforms they -- as President -- would be willing to support.

Or do the voters get something else: Excuses not to commit. Vague promises without a commitment. Empty statements about change, but no effort to know what is wrong. The Senators must confront the facts. The House must remove Pelosi. The public must see the Senators wrestle with this problem they have let get out of control: Tyranny.

Changes Has Arrived: The Leadership Must Provide it, or Have It Lawfully Imposed

It is June 2008. This tyranny has continued for too long, and it should never have been given any green light. The voters see the leadership problem. They sense a solution is possible. The question is whether we will work to understand what is wrong, and stand up for what is right. The voters need to know before they are asked to vote. We must find out now, then give the voters time to digest the facts. If they need more time or more information, we will know. The voters have not been silent. They will continue their resounding rejection of this tyranny.

Even if the Congress refuses to impeach, the States' Attorney Generals must explain their decision not to prosecute this sitting President and his enablers in Congress. Where the Congress refuses to act, the States are not obliged to follow that illegal rebellion. The Federal Government has the power to pass laws to compel compliance with the law. It has no legal power to compel any of us -- anyone -- to join in their rebellion against the same.

If it is a foregone conclusion that there will be no impeachment hearings, then we need not wait for Congress. Our job must be to discuss what will be a solution. Either you commit to removing Pelosi and supporting an impeachment investigation; or you agree that the oversight must be changed; or you agree to remain complicit, through inaction, with this traitor.

Choose wisely.

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Back to John Yoo and exclusivity ..

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By David Kurtz - May 23, 2008, 11:54AM

It all depends on what your definition of "exclusive" is.

At the heart of the debate over warrantless wiretapping is whether FISA, by its own terms, is the exclusive means for the government to undertake electronic surveillance in counterespionage and counterterrorism cases.

The plain language of the FISA statute seems clear, stating that FISA is the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted."

But nothing is ever that simple with the Bush Administration.

This week Sens. Sheldon Whitehouse (D-RI) and Dianne Feinstein (D-CA) released a declassified sentence from one of John Yoo's notorious memos, written while he was serving in the Justice Department's Office of Legal Counsel. In it, Yoo managed to rationalize away the exclusivity provision of FISA in order to justify a warrantless wiretapping program outside of the FISA framework, without judicial oversight or regular reports to Congress:

"Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading."

Poof! Just like that, exclusivity disappeared and the Bush Administration was free to pursue warrantless wiretaping with the official blessing of the OLC. (Former OLC attorney Jack Goldsmith has described his office's memos as "advance pardons").

The Bush Administration says it no longer relies on the Yoo memo as the legal underpinning for warrantless wiretapping, pointing instead to perhaps an even weaker rationale, the post-9/11 AUMF:

The Justice Department told the senators it no longer relies on Yoo's FISA memo. "The 2001 statement addressing FISA does not reflect the current analysis of the department," wrote Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs.

He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.

When Congress approved the Authorization for Use of Military Force of Sept. 18, 2001, it "confirmed and supplemented the President's Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States," Benczkowski said.

Exclusivity remains a key sticking point in passage of a new FISA law. Democrats are demanding language that erases whatever doubt there might be (although in fact there is none). The White House is balking.

Comments (21)

Does this mean that unless the law explicitly says this law applies to (fill in your own name), it is okay to commit the crimes of your choice?

The sad fact is... these crimes will go unpunished simply because these are important people beyond the control of our rule of law.

All these folks... Republicans and Democrats alike are just "more equal" than the rest of us farm animals...

Too bad so few are willing to change this fact... the demise of a democracy is sad indeed...

Comment:

There is no doubt.

The issue is that Bush/Cheney through Yoo have decided that whenever Little Georgie puts on his "Commander In Chief" hat he doesn't have to obey ANY law. In the interest of "national security" there is nothing that can impede Little Georgie from doing anything he decides is necessary.

Get it?

He's not above the law. He's beyond the law.

But that's just their say-so. No one else believes such inane misinterpretation of the Constitution and the law. Clearly, Little Georgie has been authorizing quite illegal operations that constitute gross abuse of governmental powers. i.e. he's committed High Crimes & Misdemeanors. Can we Impeach him now?

ITMFA (impeach the motherfucker already)

Posted by

Wiretapping up. Prosecutions down. Is there any doubt about what the wiretapping is REALLY for? Getting Rove's permanent GOP majority.

Posted by

The single best part of this story is that former U.S. Attorney Senator Sheldon Whitehouse is on the case. He is extraordinary. Addington/Yoo/Bybee & Co. have met their match in this gentleman.

America looks just a little more like Putin's Russia everyday. Or, am I being too nice? .... a USSR or a Stalinistic regime? Rule are made to be broken, a controlled media, spying, torture, more and more jails, purging of authorneys, politized trials with trumped up charges, the haves and the have nots, and constricted military personel trapped in a dieing profession.
Where is America headed? And why with all the ourtage is there nothing being done about it?
Americans must love how it is being treated.

DOJ Reliance Continues

The issue is: What Other programs have relied on this (incorrect) assertion the statutes and Constitution do not apply. It is meaningless for DoJ/AG to argue it "no longer" relies on the Yoo memo. Sure it does. AG said explicitly that he would not enforce any laws DOJ OLC said did not apply: Geneva, FISA. What other standards have been cast to the winds with other DOJ OLC memos?

Yoo's Convoluted Logic

FISA was written, in part, to authorize lawful violations of the Constitution. Once the President claims FISA does not apply -- in either granting an exception to the warrant requirement, or in having "no role as a standard" -- then the President must comply with the Constitution.

Yoo's Construction would have us believe FISA does not apply, but he fails to explain why the President can ignore Constitutional requirements in the 4th Amendment. Youngstown shows the President's power is constrained by the Constitution, and law. Even if Yoo's assertion is correct -- that the FISA does not apply because Congress did not expressly say it applied to a specific situation -- Yoo has not addressed the Constitutional requirements.

Evenif FISA does not apply, Yoo fails to address the Constitution Violations or Constrain Other Programs

Yoo's argument has not adequately addressed the implications of his argument: Once FISA is ignored, or does not apply, or Congress did not expressly say it applied to a narrow situation -- the President is only left with the Constitution which prohibits all warrantless surveillance. Yoo's asked us to believe the law does not apply; but fails to explain why the President, as a creature of the Constitution, has any authority from the document Yoo also says does not apply.

Exception to Privilege

It appears Yoo's written this after the illegal activity started: The President, as with Geneva violations, was stuck with a legal issue, and hoped to "rely on" DOJ OLC memos to "legalize" what had already started. These memos do not appear to be deliberative/pre-decisional, but post-decisional, also not protected given the crime-fraud exception to attorney client privilege.

Posted by

Illegal Wiretapping
Illegal Torture
Illegal Propaganda Program
All admitted by the administration.
Approval ratings in the toilet.
No impeachment proceedings?
The Senate is just as guilty as the administration. Throw the "outraged"-stern-letter-writing bums out.

Posted by

It's a shame that Dianne Feinstein voted in committee to pass the Senate bill that grants retroactive immunity to the telecoms who assisted the administration in spying on Americans without a FISA warrant (thus flouting the clear and plain "exclusive means" clause of the 1979 FISA law quoted above).

Because every other means of legal discovery and review of this illegal program has been closed off by the Bush Administration on standing grounds or through claims of executive privilege, the telecom lawsuits are the last, best way for the American people to finally learn what laws were broken in their name and what violations of their personal privacy occurred without their knowledge or consent. They're also the last best way to hold those lawbreakers (in both the corporate and private sector) accountable for their lawbreaking, and to disincentivize such flagrant illegalities in the future.

Unfortunately, Dianne Feinstein's pro-immunity vote in committee made the pursuit of justice and accountability infinitely harder. Again, that's a shame. And it's an even bigger shame that she cast that pro-immunity vote, to the great benefit of her largest contributors such as AT&T, in direct opposition to the overwhelming balance of her own constituent contact with regard to the bill, which, per her own staffers' admission, was almost exclusively anti-immunity.

But then, why the hell should she care what we constituents think? We're only her stupid constituents.

Patrick Meighan
Culver City, CA

Posted by

President Delegated No Power To Violate the Constitution

DOJ OLC views surveillance as lawful unless the Congress or Constitution expressly prohibits that activity. However, the 10th Amendment does the opposite: Unless a power -- for the President to violate the Constitutin -- has been delegated, that power is reserved to the States and People.

DoJ OLC Separates 4th Amendment

Part 1 of 4th Amendment

The problem with the 4th Amendment, in light of DOJ OLC memos, is that they look at the 4th Amendment as two separate clauses. DoJ OLC views electronic surveillance as reasonable during wartime:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,

Part 2 of 4th Amendment

DoJ OLC argues that warrants are not always required. When they are required, the standard is probable cause:

"and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

By splitting the 4th Amendment into two, DOJ OLC is arguing the President-DOJ OLC-AG alone, outside the court, can determine that Presidential power is not constrained by the Warrant requirement. They've invented a new exceptions to the Constitution: The President, his decisions, and any action taken in the name of a nebulous objective.

This is the definition of tyranny.

Posted by

By splitting the 4th Amendment into two, DOJ OLC is arguing the President-DOJ OLC-AG alone, outside the court, can determine that Presidential power is not constrained by the Warrant requirement.

they got the right to argue that

and if a court don't buy it, they got the right to go to jail

Posted by

Well the thig that I always point back to when talking to friends about this white house and many of their supporters is that in essence they consider themsleves conservative. I have always felt that many of the people which define themselves as conservative cared about government abuse, goverment spending and the nature of balance between government responsibility tempered against personal/civc responsability. If that were the case then how under any interpretation of conservatism can you have this interpretation of a legal statute? At a bare minimum their interpretation is quite liberal or I should say creative, but definitely not a conservative approach nor a conservative conclusion? Don't you guys agree? If the status quo was A and you have people asking for B, then it needs to be seen as exactly that, not A but B. A change! Therefore the white house has changed its policies so that those policies reflect what they feel represents conservatism, not that they are conservatism, but that their goals are conservative and their methods are anything but. So essentially these guys have hijacked conservatism because they felt that was the only way to get America the way that they wanted! So we get back to feeling the way most of the people who have had a problem with their methods over the last couple of years which is namely that their methods have been bad for US perception abroad, they have been bad for your average American, who makes less than 75 thousand a year or a family that makes less than a 100 thousand a year, they have been bad for our education policies in many ways by creating a top down structure which puts the burden on teachers rather who have little power in terms of teaching guidelines and even less when it comes to classroom discipline, you have ever increasing health care cost, while thousands of americans continue to be added to the list of uninsured, etc! They have failed in getting the results which they beleived they could accomplish but have been successful at changing the language and spirit of those working in Washington. Now we have a goverment in which those at the top are both responseable for much of the policy but then places the ultimate critique not on those policies but on how well those underneath the top performed them. This allows the Kings/high-goverment officials the pleasure of never being accountable for their action or the policies they support. I know I am oversimplifying but this is a large picture of how I see things moving. It is going to take the best and the brightest to create a new spirit in Washington and a new spirit around this country which better reflects how the majority messures up to the first paragraph of the preamble.

Posted by

Dude, there's this thing called the 'Enter' key that makes your posts more readable. I don't know if you had a point. I don't care. Think paragraphs....

Posted by

And even when this program supported by legal garbage is hopefully dismantled by Obama what happens? If there is no consequence for Bush Co., then won't the same programs and be put back in place by the next tyrannical administration...

I imagine the administration plans to put programs in "sleeper" mode. I dislike conspiracy thinking, but it fits the trend/pattern of facts that are ever so slowly emerging every month. Our only hope is the whistle blowers with any sense of decency.

Posted by

DoJ has not made the case that something other than FISA governs electronic surveillance; or that non-FISA procedures apply to this surveillance. DOJ cannot reasonably expect Congress to comply with this non-sense request:

He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.From

The 2001 statement must be considered without regard to whether the statutes, policies, or programs did or did not change after the DOJ OLC statement. Today's debate is related to the illegal activity before the FISA changes. DoJ cannot ask Congress to examine one set of violations under statutes which were changed later. We still don't know what's been going on before the changes.

The "current position" is to pretend there's been compliance with standards they've ignored, but not prosecute the violations. That's not a position or policy. It's a decision to not enforce the Constitution. How that illegal activity, unlawful use of information, and surveillance relates to war crimes against POWs is a relevant discussion.

"Choosing non-FISA procedures" does not mean also ignoring the Constitution. Once the AG departs FISA, the AG cannot reasonably justify warrantless activity directed at American civilians. The exceptions do not apply. The ruse is to pretend Americans -- on accusation alone -- "Might be" disguised terrorists. ( Here Is Yoo's article on Katz highlights to waffling possition on the warrant requirements. )

Posted by

It is a misreading to suggest the concern with preventing an attack. The President and legal counsel were concerned with thhe opposite: If tehre was a second attack, could they go to the American people and say, "We did all we could">

Senator Specter, in reminding the AG the AUMF did not change FISA as the exclusive means to conduct warrantless surveillance, expressly rejected this assertion when Gonzalez testified Feb 2006 before the Senate Judiciary:

When Congress approved the Authorization for Use of Military Force of Sept. 18, 2001, it "confirmed and supplemented the President's Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States," Benczkowski said.

Wrong, Benchowski. The AUMF in no way said the FISA was anything; nor did the AUMF say the FISA was something other than the exclusive means to conduct warrantless surveillance.

Illegal Changes To Constitution

The Congress has no power to "complement" the Constitution; nor can Congress through an Act delegate any power to the President. It's a mis-reading of the Constitution to pretend that an Article I declaration of war (which never happened) grants the President any new powers. It is absurd for Benchowski to misconstrue the AUMF as any Congressional comment about how the President may ignore FISA, bypass the Constitution, or use "new" authorities which Congress has "not" expressly prevented or assigned.

Using the Yoo-Benchowski construction, they would have us believe that the AUMF was an act of Congress that delegated to the President new authorities; but they contradict themselves arguing the Congress was silent in constraining that authority. That defies reason: How can the Congress both speak and not speak at the same time? The DOJ OLC would have us believe in quantum-speech-specificity: At the same time, Congressional language "is clear" and "isn't clear".

Even if true and there was any grant of new authority under the AUMF (which never happened), the President may not assert any power that illegally violates the Constitution unless the People agree. That never happened, as evidenced by the continued refusal to grant immunity for FISA violations; and the State AG efforts to enforce existing state-level contract requirements on the telecoms. Congress has no power to mediate contract disputes between the States and businesses. That is judicial power.

Posted by testing

Well, in a sense, the AUMF did exactly what Benczkowski said: the president has exactly zero authority to conduct domestic warrantless wiretaps under Article II, and after the passage of the AUMF he still had exactly zero authority. Multiply zero by any number, you still get zero.

Posted by paulw

To the rare reader, following along - Below is a comment that smacks of legal idiocy.

If the were put on this blog (in the future) it would be taken off.
Attacks on posters posting on the topic who are the telling the TRUTH would not be tolerated.
Someday, SOME day when people "get" the real value of this blog, such BS will NOT be tolerated.
I am leaving it on here, just to show future readers of this blog on DVD *and that will come* just how disinformation actually works ..

"testing" is as full of pseduo-law BS as they come --

"Yoo's argument has not adequately addressed the implications of his argument: Once FISA is ignored, or does not apply, or Congress did not expressly say it applied to a narrow situation -- the President is only left with the Constitution which prohibits all warrantless surveillance. Yoo's asked us to believe the law does not apply; but fails to explain why the President, as a creature of the Constitution, has any authority from the document Yoo also says does not apply."

That was addressed in the various (bogus) assertions that Bushit, when acting as Commander-in-Chief, is exempt from ALL legal constraints INCLUDING THE CONSTITUTION, fool.

And that "covers" the illegal domestic wiretapping based upon the (equally bogus) assertion -- by the "Commander-in-Chief" -- that the "War on Terror" includes the US as a battlefield.

Problem in the latter case: Congress has not passed a Decaration of War against the US. Only the Bushit criminal enterprise has done that.

He is unconstitutionally claiming the powers of military dictator, without the uniform to give that fact away "too much".

As for your "legal" "theorizing": you haven't the least clue as to what law is and isn't, let alone how it works.

Posted by

There are nagging doubts that anything will come of this or any of the other extra-Constitutional scams Bush has run on this country. Congress will yammer protests, the White House will quibble over lawyerly details... and the matter will die. Congress has become the Administration's lapdog, spayed of output and neutered of energy.

The troublesome fact is that future Presidents will see unlimited wiretap privilege as a political tool too valuable to surrender. If they feel no compunction to reveal who they're bugging, what's to keep them from bugging their political opponents? And if there's no official sanction to keep them from doing so, they will. That's been the "Rovian" aspect of the wiretap case from the beginning - national security be damned...

Posted by

If Yoo is subpoenaed and found to be as lacking as Gonzales, will Bolt Hall continue keeping him on faculty? Is his tenure sealed in stone? I just find this utterly so disturbing. It is not as if he taught at Ken Starr U (Pepperdine) or Condy U (Stanford). That would be bad enough, but we are talking about Berkeley! If one of my kids went to school there, I would be raising hell!

Posted by

The 4th amendment is very clear and unequivocal. What all of these interpretations indicate is that there is a need for many new laws in 2009 to make sure the conservatively-stacked courts have no more opportunities to nullify the existing law. The judges specifically responsible for nullifying these laws should be impeached and disbarred, because they have violated their oaths to support a right-wing extremist political agenda intent on dismantling the Constitution in favor of a police state. These fanatics are a cancer in the government and must be removed if our form of government is to survive another century.

Here is the print version of the links above - to ease printing problems:

Sentence in Memo Discounted FISA

By Robert Barnes
Washington Post Staff Writer
Friday, May 23, 2008; A15

What does "exclusive" mean?

The answer was at the heart of a highly sensitive memo by the Justice Department's Office of Legal Counsel in 2001, when Bush administration officials were keen to institute warrantless domestic surveillance after the Sept. 11, 2001, attacks.

A 1978 law appeared at first glance to be an impediment to using new procedures for such surveillance. It stated that the Foreign Intelligence Surveillance Act (FISA) provided the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted."

But the administration did not want to follow FISA, because the law requires court approval. The administration has said that law could be a cumbersome obstacle in real-time efforts to intercept intelligence.

This created a quandary that then-Justice Department lawyer John C. Yoo resolved in the OLC memo. Until this week, members of the public did not know exactly what the memo said. But two Democratic senators who had read the classified version asked that a sentence in the memo be declassified, and this week they released the result:

The passage states that "[u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading."

In short, in this context exclusive does not mean exclusive because Congress did not specifically rule out the alternative approach sought by the administration.

But Democratic Sens. Sheldon Whitehouse (R.I.) and Dianne Feinstein (Calif.) said the memo provided the legal underpinnings for the Bush administration to ignore FISA's clear language.

"I cannot reconcile the plain language of FISA that it is the exclusive procedure for electronic surveillance of Americans with the OLC opinion saying Congress didn't say that," Whitehouse said in a statement. "Once again, behind the veil of secrecy, OLC appears to have cooked up extravagant or misguided legal theories which would never survive the light of day."

The context of Yoo's statement is unclear, because the rest of the memo remains classified. Yoo, now a law professor at the University of California at Berkeley, also wrote a controversial memo from August 2002 that narrowly defined torture; the department later rescinded it.

The Justice Department told the senators it no longer relies on Yoo's FISA memo. "The 2001 statement addressing FISA does not reflect the current analysis of the department," wrote Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs.

He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.

When Congress approved the Authorization for Use of Military Force of Sept. 18, 2001, it "confirmed and supplemented the President's Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States," Benczkowski said.

Whether such surveillance can be authorized outside of the legal requirements of FISA is one of the most contentious points in negotiations between Congress and the administration as it attempts to revise the statute -- a matter on which lawmakers will have the last word.

Feinstein said in a statement: "The declassified OLC opinion claimed that FISA didn't restrain the President's authorities. The OLC was wrong, and new FISA legislation must have strong exclusivity language to make clear that we cannot have such abuses again in the future."

Sentence in Memo Discounted FISA

By Robert Barnes
Washington Post Staff Writer
Friday, May 23, 2008; A15

What does "exclusive" mean?

The answer was at the heart of a highly sensitive memo by the Justice Department's Office of Legal Counsel in 2001, when Bush administration officials were keen to institute warrantless domestic surveillance after the Sept. 11, 2001, attacks.

A 1978 law appeared at first glance to be an impediment to using new procedures for such surveillance. It stated that the Foreign Intelligence Surveillance Act (FISA) provided the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted."

But the administration did not want to follow FISA, because the law requires court approval. The administration has said that law could be a cumbersome obstacle in real-time efforts to intercept intelligence.

This created a quandary that then-Justice Department lawyer John C. Yoo resolved in the OLC memo. Until this week, members of the public did not know exactly what the memo said. But two Democratic senators who had read the classified version asked that a sentence in the memo be declassified, and this week they released the result:

The passage states that "[u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading."

In short, in this context exclusive does not mean exclusive because Congress did not specifically rule out the alternative approach sought by the administration.

But Democratic Sens. Sheldon Whitehouse (R.I.) and Dianne Feinstein (Calif.) said the memo provided the legal underpinnings for the Bush administration to ignore FISA's clear language.

"I cannot reconcile the plain language of FISA that it is the exclusive procedure for electronic surveillance of Americans with the OLC opinion saying Congress didn't say that," Whitehouse said in a statement. "Once again, behind the veil of secrecy, OLC appears to have cooked up extravagant or misguided legal theories which would never survive the light of day."

The context of Yoo's statement is unclear, because the rest of the memo remains classified. Yoo, now a law professor at the University of California at Berkeley, also wrote a controversial memo from August 2002 that narrowly defined torture; the department later rescinded it.

The Justice Department told the senators it no longer relies on Yoo's FISA memo. "The 2001 statement addressing FISA does not reflect the current analysis of the department," wrote Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs.

He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.

When Congress approved the Authorization for Use of Military Force of Sept. 18, 2001, it "confirmed and supplemented the President's Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States," Benczkowski said.

Whether such surveillance can be authorized outside of the legal requirements of FISA is one of the most contentious points in negotiations between Congress and the administration as it attempts to revise the statute -- a matter on which lawmakers will have the last word.

Feinstein said in a statement: "The declassified OLC opinion claimed that FISA didn't restrain the President's authorities. The OLC was wrong, and new FISA legislation must have strong exclusivity language to make clear that we cannot have such abuses again in the future."

The bullshit never stops. New Exec Order empowers Mukasey further ...

Harriet Meirs, I totally detest you as a role model for the women of today.

Veeger

New Bush order strips away intelligence board's duty to to report illegal activities directly to AG

For Immediate Release

Office of the Press Secretary

February 29, 2008

Executive Order: President's Intelligence Advisory Board and Intelligence Oversight Board

RSS Feed White House News

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. It is the policy of the United States to ensure that the President and other officers of the United States with responsibility for the security of the Nation and the advancement of its interests have access to accurate, insightful, objective, and timely information concerning the capabilities, intentions, and activities of foreign powers.

Sec. 2. Definitions. As used in this order:

(a) "department concerned" means an executive department listed in section 101 of title 5, United States Code, that contains an organization listed in or designated pursuant to section 3(4) of the National Security Act of 1947, as amended (50 U.S.C. 401a(4));

(b) "intelligence activities" has the meaning specified in section 3.4 of Executive Order 12333 of December 4, 1981, as amended; and

(c) "intelligence community" means the organizations listed in or designated pursuant to section 3(4) of the National Security Act of 1947, as amended.

Sec. 3. Establishment of the President's Intelligence Advisory Board. (a) There is hereby established, within the Executive Office of the President and exclusively to advise and assist the President as set forth in this order, the President's Intelligence Advisory Board (PIAB).

(b) The PIAB shall consist of not more than 16 members appointed by the President from among individuals who are not employed by the Federal Government.

(c) The President shall designate a Chair from among the members of the PIAB, who shall convene and preside at meetings of the PIAB, determine its agenda, and direct its work.

(d) Members of the PIAB and the Intelligence Oversight Board (IOB) established in section 5 of this order:

(i) shall serve without any compensation for their work on the PIAB or the IOB; and

(ii) while engaged in the work of the PIAB or the IOB, may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in the Government (5 U.S.C. 5701-5707).

(e) The PIAB shall utilize such full-time professional and administrative staff as authorized by the Chair and approved by the President or the President's designee. Such staff shall be supervised by an Executive Director of the PIAB, appointed by the President, whom the President may designate to serve also as the Executive Director of the IOB.

Sec. 4. Functions of the PIAB. Consistent with the policy set forth in section 1 of this order, the PIAB shall have the authority to, as the PIAB determines appropriate, or shall, when directed by the President:

(a) assess the quality, quantity, and adequacy of intelligence collection, of analysis and estimates, and of counterintelligence and other intelligence activities, assess the adequacy of management, personnel and organization in the intelligence community, and review the performance of all agencies of the Federal Government that are engaged in the collection, evaluation, or production of intelligence or the execution of intelligence policy and report the results of such assessments or reviews:

(i) to the President, as necessary but not less than twice each year; and

(ii) to the Director of National Intelligence (DNI) and the heads of departments concerned when the PIAB determines appropriate; and

(b) consider and make appropriate recommendations to the President, the DNI, or the head of the department concerned with respect to matters identified to the PIAB by the DNI or the head of a department concerned.

Sec. 5. Establishment of Intelligence Oversight Board.

(a) There is hereby established a committee of the PIAB to be known as the Intelligence Oversight Board.

(b) The IOB shall consist of not more than five members of the PIAB who are designated by the President from among members of the PIAB to serve on the IOB. The IOB shall utilize such full-time professional and administrative staff as authorized by the Chair and approved by the President or the President's designee. Such staff shall be supervised by an Executive Director of the IOB, appointed by the President, whom the President may designate to serve also as the Executive Director of the PIAB.

(c) The President shall designate a Chair from among the members of the IOB, who shall convene and preside at meetings of the IOB, determine its agenda, and direct its work.

Sec. 6. Functions of the IOB. Consistent with the policy set forth in section 1 of this order, the IOB shall:

(a) issue criteria on the thresholds for reporting matters to the IOB, to the extent consistent with section 1.7(d) of Executive Order 12333 or the corresponding provision of any successor order;

(b) inform the President of intelligence activities that the IOB believes:

(i)(A) may be unlawful or contrary to Executive Order or presidential directive; and

(B) are not being adequately addressed by the Attorney General, the DNI, or the head of the department concerned; or

(ii) should be immediately reported to the President.

(c) review and assess the effectiveness, efficiency, and sufficiency of the processes by which the DNI and the heads of departments concerned perform their respective functions under this order and report thereon as necessary, together with any recommendations, to the President and, as appropriate, the DNI and the head of the department concerned;

(d) receive and review information submitted by the DNI under subsection 7(c) of this order and make recommendations thereon, including for any needed corrective action, with respect to such information, and the intelligence activities to which the information relates, as necessary, but not less than twice each year, to the President, the DNI, and the head of the department concerned; and

(e) conduct, or request that the DNI or the head of the department concerned, as appropriate, carry out and report to the IOB the results of, investigations of intelligence activities that the IOB determines are necessary to enable the IOB to carry out its functions under this order.

Sec. 7. Functions of the Director of National Intelligence. Consistent with the policy set forth in section 1 of this order, the DNI shall:

(a) with respect to guidelines applicable to organizations within the intelligence community that concern reporting of intelligence activities described in subsection 6(b)(i)(A) of this order:

(i) review and ensure that such guidelines are consistent with section 1.7(d) of Executive Order 12333, or a corresponding provision of any successor order, and this order; and

(ii) issue for incorporation in such guidelines instructions relating to the format and schedule of such reporting as necessary to implement this order;

(b) with respect to intelligence activities described in subsection 6(b)(i)(A) of this order:

(i) receive reports submitted to the IOB pursuant to section 1.7(d) of Executive Order 12333, or a corresponding provision of any successor order;

(ii) forward to the Attorney General information in such reports relating to such intelligence activities to the extent that such activities involve possible violations of Federal criminal laws or implicate the authority of the Attorney General unless the DNI or the head of the department concerned has previously provided such information to the Attorney General; and

(iii) monitor the intelligence community to ensure that the head of the department concerned has directed needed corrective actions and that such actions have been taken and report to the IOB and the head of the department concerned, and as appropriate the President, when such actions have not been timely taken; and

(c) submit to the IOB as necessary and no less than twice each year:

(i) an analysis of the reports received under subsection (b)(i) of this section, including an assessment of the gravity, frequency, trends, and patterns of occurrences of intelligence activities described in subsection 6(b)(i)(A) of this order;

(ii) a summary of direction under subsection (b)(iii) of this section and any related recommendations; and

(iii) an assessment of the effectiveness of corrective action taken by the DNI or the head of the department concerned with respect to intelligence activities described in subsection 6(b)(i)(A) of this order.

Sec. 8. Functions of Heads of Departments Concerned and Additional Functions of the Director of National Intelligence.

(a) To the extent permitted by law, the DNI and the heads of departments concerned shall provide such information and assistance as the PIAB and the IOB may need to perform functions under this order.

(b) The heads of departments concerned shall:

(i) ensure that the DNI receives:

(A) copies of reports submitted to the IOB pursuant to section 1.7(d) of Executive Order 12333, or a corresponding provision of any successor order; and

(B) such information and assistance as the DNI may need to perform functions under this order; and

(ii) designate the offices within their respective organizations that shall submit reports to the IOB required by Executive Order and inform the DNI and the IOB of such designations; and

(iii) ensure that departments concerned comply with instructions issued by the DNI under subsection 7(a)(ii) of this order.

(c) The head of a department concerned who does not implement a recommendation to that head of department from the PIAB under subsection 4(b) of this order or from the IOB under subsections 6(c) or 6(d) of this order shall promptly report through the DNI to the Board that made the recommendation, or to the President, the reasons for not implementing the recommendation.

(d) The DNI shall ensure that the Director of the Central Intelligence Agency performs the functions with respect to the Central Intelligence Agency under this order that a head of a department concerned performs with respect to organizations within the intelligence community that are part of that department.

Sec. 9. References and Transition. (a) References in Executive Orders other than this order, or in any other presidential guidance, to the "President's Foreign Intelligence Advisory Board" shall be deemed to be references to the President's Intelligence Advisory Board established by this order.

(b) Individuals who are members of the President's Foreign Intelligence Advisory Board under Executive Order 12863 of September 13, 1993, as amended, immediately prior to the signing of this order shall be members of the President's Intelligence Advisory Board immediately upon the signing of this order, to serve as such consistent with this order until the date that is 15 months following the date of this order.

(c) Individuals who are members of the Intelligence Oversight Board under Executive Order 12863 immediately prior to the signing of this order shall be members of the Intelligence Oversight Board under this order, to serve as such consistent with this order until the date that is 15 months following the date of this order.

(d) The individual serving as Executive Director of the President's Foreign Intelligence Advisory Board immediately prior to the signing of this order shall serve as the Executive Director of the PIAB until such person resigns, dies, or is removed, or upon appointment of a successor under this order and shall serve as the Executive Director of the IOB until an Executive Director of the IOB is appointed or designated under this order.

Sec. 10. Revocation. Executive Order 12863 is revoked.

Sec. 11. General Provisions.

(a) Nothing in this order shall be construed to impair or otherwise affect:

(i) authority granted by law to a department or agency, or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.

(b) Any person who is a member of the PIAB or IOB, or who is granted access to classified national security information in relation to the activities of the PIAB or the IOB, as a condition of access to such information, shall sign and comply with the agreements to protect such information from unauthorized disclosure. This order shall be implemented in a manner consistent with Executive Order 12958 of April 17, 1995, as amended, and Executive Order 12968 of August 2, 1995, as amended.

(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(d) This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person.

GEORGE W. BUSH

THE WHITE HOUSE,

February 29, 2008.

Dismantling tyranny project

"Introduction" to Dismantling Tyranny project

By Ilan Berman and J. Michael Waller
published in Demokratizatsiya
Vol. 12, No. 3, Summer 2004, pp. 325-331

---

When a totalitarian group seizes power, whether by parliamentary maneuver or by force, one of the first institutions it creates is a secret political police. Since the birth of modern totalitarianism, in country after country, these secret political police became one of the predominant instruments of one-party rule. In every totalitarian government, secret police were an indispensable device for the consolidation of power, neutralization of the opposition, and construction of a single-party state. More recent history shows that when totalitarian regimes liberalize or collapse, the secret political police nonetheless tend to survive. This collection deals with this survival tendency, and it explores how former communist countries have dealt with the issue in building new democratic societies in the post-Cold War era.

Our concern here is only with the political police, commonly known as the “secret police,” in a former totalitarian system. In most communist governing structures, the secret police was part of a much larger security and intelligence apparatus. The Soviet KGB, for example, was primarily responsible for the perpetuation of the Communist Party elite – hence its large informant and dissident-hunting networks. But it also performed legitimate roles essential to any country’s security; in addition to enforcing one-party rule, the KGB also conducted foreign intelligence and both civilian and military counterintelligence, fulfilled border security functions, engaged in communications and electronic intelligence, and ensured the physical security of government officials and buildings. Therefore, when we speak of dismantling and uprooting a secret police network, we are referring not to stripping a country of its legitimate ability to fight crime and ensure national security, but to removing the impediments to democracy, transparency and accountability left by the country’s totalitarian past.

It is important to note, however, that even most of the legitimate functions performed by security services have historically been prone to manipulation by both the ruling party and an elite bureaucratic mindset inconsistent with democratic values. In many totalitarian states, the legitimate security functions were taken over by the secret political police, which then imbued the legitimate services with secret police cachet – a carefully cultivated mentality of elitism and impunity that must be rooted out if the organization is to work in the service of a new, democratic order. The old organs’ ability to fight corruption, terrorism, weapons proliferation or organized crime – even though they might hold a monopoly on the personnel capable of such work – might be compromised, perhaps irreparably, because of the impunity with which they had been vested under the old order. In many cases as well, the totalitarian security and intelligence organs were not servants of the national government or even the ruling elites, but of a previous totalitarian colonial power. Uprooting the old political police may also require a parallel uprooting of a foreign intelligence service that acted as a tool of a foreign imperial power, agent of organized crime, or sponsor of international terrorism.

But secret police are not unique to totalitarian regimes. They have existed in various forms for centuries, and even in some Western European countries. Secret police are indispensable to autocrats and dictators around the world, or anywhere that ruling special interests are troubled by trade unions, peasant movements, religious believers, cultural minorities or other challenges to the established order. We have heard much about uprooting such systems and holding human rights abusers accountable in places like Argentina, Chile, El Salvador and apartheid South Africa. Almost nowhere, however, has doing the same in former communist countries been discussed. Indeed, while the uprooting of totalitarian structures in former Latin American dictatorships and South Africa’s apartheid regime have been considered essential for national reconciliation and democratic renewal, the same has not held true for the former communist countries, including Nicaragua.

This compendium will not attempt to explore why this has been the case. Rather, it is intended to provoke discussion about the need to address the problem. A collection of case studies of seven formerly communist-ruled states – Russia, the Czech Republic, East Germany, Estonia, Lithuania, Nicaragua and Poland – and how they approached the problem of their respective totalitarian secret police, it is inspired in part by Thomas T. Hammond’s extensive comparative study, The Anatomy of Communist Takeovers[1] -- a work that confirms the primacy of a secret police system in the creation of a totalitarian dictatorship.

Some countries, like Russia, addressed the problem by instituting little more than cosmetic changes. Many of the Central European states went much further, to the point of cleansing their societies of the control structures of the old order. The process, begun by the Czechs, is a background screening and political clearance/banning process called lustration. For a true political and social break with their dark past, the controversy was never “not to lustrate,” but consisted mainly of style, degree and pace.

Two models emerged. The Czech model of de jure lustration produced bitter opposition, both within the country and abroad, leaving a trail of political scandals but ultimately being upheld by the nation’s Constitutional Court in an elegantly argued document on the necessity, legal soundness and democratic imperative of lustration. A de facto

As was the case after the Soviet collapse of 1991, the world is confronted anew by what to do about the secret police networks of a former one-party regime. Coalition partners in Iraq as of this writing are working with Iraqis to cleanse society of the Ba’ath party of Saddam Hussein, and to ensure through “de-baathification” that the party and its ideology never rise again. They are not alone; democracy activists are today drawing up similar transition plans for other candidates for transformation – among them Belarus, Cuba, Iran and North Korea.

This collection is also designed to provide an idea of what to expect of a secret police when a totalitarian system starts to disintegrate. It attempts to show that, with visionary and courageous leadership, unity of purpose, support from democratic countries and perseverance, it is indeed possible in an emerging democracy to dissolve, uproot and neutralize a national political police network.


The Austrian Model

After World War II, there was never any question about a total de-Nazification effort to root out every last vestige of Hitler’s regime, ban the Nazi party, criminalize the display of Nazi symbols, and totally discredit every aspect of the Third Reich by exposing Nazi crimes. The mantra became “Never again.” Yet even with de-Nazification, problems soon arose for the victorious Allies. Many lessons can be learned today from studying postwar Austria – which became a geopolitical battleground pitting democratic France, Great Britain and the United States against Stalin’s Soviet Union. Like many of today’s post-Soviet democracies, postwar Austria was governed by sometimes-fragile coalition governments.

In his study of the subject, William B. Bader describes the battle between the Communists and the democrats for control of the police, and how it took a stubborn man of strong character, with Western support, to prevail. At first, democratic forces gave in too easily to Communist demands for control of the instruments of internal control:


In the formation of coalition governments after the war, the Communists in Eastern Europe deferred to other parties in the selection of premier – but the Minister of the Interior was something else again. Once the Communists had this position, they used it with the greatest effect. Consequently, the democratic elements within the country were soon buffeted by a police force indifferent to the personal safety of the non-Communists and quick to use power of arrest as a political weapon.

The Austrian Communists were as aware as their compatriots throughout Eastern Europe of the importance of seizing control of this most important lever of power. During the negotiations between the three parties in April 1945, the Communists had pressed for and eventually won the post of Minister of the Interior. Chancellor Renner was keenly aware that the Minister of the Interior directs a highly centralized police and gendarmerie system with authority throughout all Austria. But Renner, like his counterparts in Eastern Europe, also knew that he had no choice – without this post the Communists would not participate in the government and without them there would be no government. Thus, in April 1945, the Communist Franz Honner was given full control of the most potentially powerful civil force in Austria. But to be really useful to Honner and his party, the internal security system had first to be rebuilt to Communist specifications.[2]


Austria was in a security vacuum in April 1945. The Nazi anschluss of 1938 had integrated the Austrian police into the German security system, and many pre-1938 police officials were purged or imprisoned. When the Nazis retreated in early 1945, they withdrew the police and fire-fighting forces from the Austrian capital. “Therefore,” according to Bader, “when Soviet troops entered the city, they were able, in the complete absence of local police authority, to rebuild the internal security system from the ground up... By the beginning of May, the great attention the Communists had given to the reestablishment of the police was paying dividends – a great majority of the police districts were in Communist hands: the provisional Chief of Police of Vienna was a Communist, as was the Minister of the Interior of the Provisional Government.”[3]

The Soviet and Austrian Communists made no attempt to recruit leaders from the experienced pool of pre-1938 police, even though those same police were re-organizing and offering their services. But Austria was under occupation by all four Allied powers, and even though the Soviets controlled the eastern part of the county, Vienna itself was partitioned. Moscow could have its way completely. In a compromise with the coalition government designed to ensure their control over the Ministry of the Interior, the Soviets and their Austrian surrogates did allow the pre-1938 police to hold posts, and agreed to a compromise candidate, a 78-year old police veteran who was viewed as malleable, to head the Vienna police. For their main police cadres, the Soviets and the Austrian Communist Party recruited party operatives and an entire Austrian Communist guerrilla unit, which had served under Marshal Tito in Yugoslavia, as the nucleus of the new Austrian police. With Soviet approval, a temporary police force was set up which, “with few exceptions,” according to Bader, “was a rag-tag mob of undisciplined, unqualified men who very often had criminal records. Moreover, since these men were appointed with the advice and consent of the Russians by a Communist police chief or by police commissioners who were mainly Communists, the group soon became a refuge for many of the party faithful.”[4]

From Russia’s Bolshevik Cheka secret police of 1917 to Nicaragua’s Sandinista Ministry of Interior in 1979, the process and composition have been remarkably similar: the complete liquidation of the old police order and the construction of a new force politically loyal to the totalitarian party by any means necessary. As in most totalitarian takeovers, the Soviets and their Austrian surrogates exploited residual resentment and suspicion of the old police, especially among the socialists. One Communist police leader told a crowd: “we come with clean hands; we will be a police force that thinks and feels as the people do, a police that is with and not against the people.”


Concerned, the French and British planned a special committee to set up and supervise a new Austrian police force under Allied control, but they abandoned the plan when the Soviets suggested that such a scheme would show “mistrust” of the Austrians. National elections in November 1945 weighed heavily against the Communists, who struggled to keep control of the police.[5] It took a strong and determined personality as stubborn as the Communists to prevent them from succeeding. That personality was Oskar Helmer, the new socialist, anti-Communist, interior minister. According to Bader:

There may have been one or two Austrian politicians who were more astute and perceptive in their dealings with the Russians, but there was none more fearless. Short of stature, almost massive in bulk, Helmer was a man remarkably articulated though uneducated, single-minded to the point of stubbornness, personally courageous to the point of bravado; all relieved by an unfailing cheerfulness and sense of humor. The very characteristic that earned him many critics – the tendency to see Austria’s liberation in 1955 as a victory of the Austrian workers and the Socialist Party – served him well in dealing with the Communists. To Helmer the issues of the occupation period were remarkably simple – communism in all its forms and manifestations was a cancer that had to be cut out of Austria, and the working class, as led by the Socialist Party, was to be the surgeon. Communism in Austria never had a more implacable enemy.[6]


As a concrete step, Helmer required that all police have a clean record. In any other situation, such a requirement would not have been controversial, but “this amounted to a stiff blow to Communist hopes of packing the police with their supporters.” Helmer cleaned out three-fourths of the Viennese police, and re-established a police academy under democratic control to provide trained replacements for those ousted. Unqualified police who could not be removed because of permanent civil status protections were transferred, mostly to the traffic bureau, the vice squad and the prison system. (The downside of placing Communists as prison guards was illustrated by the murder of at least one defector in protective custody in Hungary.) Helmer followed with a process of centralization and reorganization which worked to the definite disadvantage of the Communists.” With Western backing, Helmer pursued a steady process of cleansing Communists from the police.[7]

The Soviets responded by arresting key people loyal to Helmer[8] and sponsoring the creation of a parallel police power, the new national State Police, whose director, Heinrich Duermayer, recruited Communists as “the only really reliable and implacable foes of fascism in Austria.” In the end, Duermayer wanted the police to be at least ninety percent Communist.[9] With the State Police as the only Communist refuge outside the Soviet-controlled zone in late 1946, Moscow worked to split the country’s security establishment. To undermine Helmer, the Soviets accused him of hindering State Police work against the Nazis, and threatened to intervene.

But Western allies unfailingly backed Helmer, who ultimately trumped the Communist state police chief by transferring him to run a prison in the American sector, isolated from his pro-Soviet loyalists. Unprepared to use force, the Soviets backed off and “allowed the dismantling of the state police and the transfer of Duermayer.” That move broke Communist control of power positions in the Austrian police and security organs. All the Soviets retained was the traffic police.[10]

Though the Soviets tried to keep the Austrian police as weak as possible, in the years that followed, until the Allied occupation ended in 1955, Western Allies secretly created a well-armed, mobile fighting force from the Western Austrian gendarmerie, which would be used to put down a Communist uprising and become a cadre for a new Austrian army. Helmer was the right person for the job at the right time, and he relied on strong U.S., French and British support. The democracies did not try to sacrifice him in the name of reconciliation, fairness or unity.


Building on the model

Our concern here is with the secret police systems of the former Soviet Union and its European and Third World satellites. The purpose is practical: to learn how – and how not – to uproot a totalitarian political police system. The contributors bring together not simply academic expertise, but practical experience – as firsthand journalistic or academic observers, as actual participants in the processes, or both.

Nevertheless, their work is bound together by a common theme – that secret police do not exist in a vacuum. In general, they are instruments of a political elite, though one can credibly argue cases where the secret police have co-opted or cowed the political leadership and in turn become the political elites themselves. Even so, they cannot exist without an array of other levers of intimidation, co-optation and coercion. Secret police in a totalitarian system require, at least at certain stages, a mass political party and a host of economic, cultural and social pressures and levers of domination and control. Therefore, the political elites bear as much moral responsibility for totalitarian crimes as the secret police themselves.

Czech President Vaclav Havel went even further. He saw the old system as so corrosive that everyone, including dissidents, had become co-opted – what he called a “contaminated moral environment.” In his January 1990 address as president of what was still Czechoslovakia, Havel captured the essence of totalitarianism:


We fell morally ill because we became used to saying something different from what we thought. We learned not to believe in anything, to ignore each other, to care only about ourselves. Concepts such as love, friendship, compassion, humility, or forgiveness lost their depth and dimensions...

I am talking about all of us. We had become used to the totalitarian system and accepted it as an unchangeable fact and thus helped to perpetuate it. In other words, we are all – though naturally to differing extents – responsible for the operation of the totalitarian machinery; none of us is just its victim: we are also its co-creators.

...We have to accept this legacy as a sin we committed against ourselves. If we accept it as such, we will understand that it is up to us all, and up to us only, to do something about it. We cannot blame the previous rulers for everything, not only because it would be untrue but also because it could blunt the duty that each of us faces today, namely, the obligation to act independently, freely, reasonably, and quickly.[11]


This collection, compiled under the auspices of the American Foreign Policy Council, is intended to serve as a touchstone from which to develop a practical guide, a sort of manual or handbook, for people from countries still ruled by totalitarian regimes, and for Western policymakers who are likely to design, fund and implement the political and economic programs for those countries that have yet to make the transition to democracy.

The Czechs, East Germans, Estonians, Lithuanians, Nicaraguans, Poles and Russians who tried to dismantle their respective secret police systems had few guideposts and no precedents to follow. The Western governments that provided them with political and economic aid, and even security assistance, likewise lacked the imagination and initiative – and courage – that could have made a difference. The contributors to this compendium believe that they can help a future democratic revolution avoid the mistakes, and replicate the successes, of those that have come before.

Ilan Berman
American Foreign Policy Council

J. Michael Waller
Institute of World Politics model of lustration, characterized by the process in Estonia, was more absolute. Former Estonian Prime Minister Mart Laar told our colleague Fredo Arias-King that when he decided to dissolve the vestiges of the Estonian Soviet KGB, “I simply fired them” and refused to hire ex-KGB officers in the new security services.



NOTES:

1. Thomas T. Hammon, ed., The Anatomy of Communist Takeovers (New Haven and London: Yale University Press, 1975).
2. William B. Bader, Austria Between East and West, 1945-1955 (Stanford: Stanford University Press, 1966), pp. 77-78.
3. Ibid., pp. 78-79.
4. Ibid., pp. 80-81.
5. Ibid., pp. 83-84.
6. Ibid., p. 85.
7. Ibid., pp. 85-87.
8. Ibid., pp. 108-109.
9. Ibid., pp. 88-89.
10. Bader, pp. 97-98.
11. Vaclav Havel, Open Letters: Selected Writings, 1965-1990, Trans. and ed. Paul Wilson (New York: Vintage, 1991), pp. 391-392.


Copyright 2004, Heldref Publications