Veterans for Common Sense

December 11, 2007 – A former CIA officer who participated in the capture and questioning of the first al-Qaeda terrorist suspect to be waterboarded said yesterday that the harsh technique provided an intelligence breakthrough that “probably saved lives,” but that he now regards the tactic as torture.

Zayn Abidin Muhammed Hussein abu Zubaida, the first high-ranking al-Qaeda member captured after the Sept. 11, 2001, attacks, broke in less than a minute after he was subjected to the technique and began providing interrogators with information that led to the disruption of several planned attacks, said John Kiriakou, who served as a CIA interrogator in Pakistan.

Abu Zubaida was one of two detainees whose interrogation was captured in video recordings that the CIA later destroyed. The recent disclosure of the tapes’ destruction ignited a recent furor on Capitol Hill and allegations that the agency tried to hide evidence of illegal torture.

“It was like flipping a switch,” said Kiriakou, the first former CIA employee directly involved in the questioning of “high-value” al-Qaeda detainees to speak publicly.

In an interview, Kiriakou said he did not witness Abu Zubaida’s waterboarding but was part of the interrogation team that questioned him in a hospital in Pakistan for weeks after his capture in that country in the spring of 2002.

He described Abu Zubaida as ideologically zealous, defiant and uncooperative — until the day in mid-summer when his captors strapped him to a board, wrapped his nose and mouth in cellophane and forced water into his throat in a technique that simulates drowning.

The waterboarding lasted about 35 seconds before Abu Zubaida broke down, according to Kiriakou, who said he was given a detailed description of the incident by fellow team members. The next day, Abu Zubaida told his captors he would tell them whatever they wanted, Kiriakou said.

“He said that Allah had come to him in his cell and told him to cooperate, because it would make things easier for his brothers,” Kiriakou said.

Kiriakou’s remarks came a day before top CIA officials are to appear before a closed congressional hearing to account for the decision to destroy recordings of the interrogations of Abu Zubaida and another senior captive, Abd al-Rahim al-Nashiri. Last Thursday, CIA Director Michael V. Hayden announced that the recordings were destroyed in 2005 to protect the identities of CIA employees who appear on them.

The recordings were destroyed despite orders from judges that required the government to preserve records related to its interrogation programs. The lawsuits were filed by captives at the Guantanamo Bay military prison who were contesting their detentions.

Also yesterday, the House intelligence committee’s chairman, Silvestre Reyes (D-Tex.), and ranking Republican Pete Hoekstra (Mich.) announced that the panel is launching its own investigation into the tapes’ destruction. Reyes and Hoekstra said in a statement that Hayden’s assertion that the committee had been “properly notified” of the destruction “does not appear to be true.”

The Justice Department and the CIA inspector general’s office also have begun a preliminary inquiry into the tapes’ destruction. Members of the bipartisan commission that investigated the Sept. 11 attacks have said they were repeatedly told that the CIA did not have videotapes of interrogations.

Agency officials have said they briefed intelligence committee leaders from both parties over the course of two years on interrogation techniques. Officials said the briefings included mention of the tapes, but none of the lawmakers asked to view them.

U.S. intelligence officials confirmed that Kiriakou was a CIA employee involved in the capture and questioning of Abu Zubaida. Kiriakou, a 14-year veteran of the CIA who worked in both the analysis and operations divisions, left the agency in 2004 and works as a consultant for a private Washington-based firm.

After the hospital interviews bore no fruit, Abu Zubaida was flown to a secret CIA prison, where the interrogation duties fell to a team trained in aggressive tactics, including waterboarding. Shortly before the transfer, Kiriakou said he left Pakistan for Washington, where he said he continued to monitor the interrogation through classified cables and private communications with colleagues.

Kiriakou said he did not know that the interrogations were videotaped, although there often were closed-circuit video systems in the rooms where questioning took place. He said he also had no knowledge of the decision to destroy videotapes of the interrogations. Officials said there are hundreds of hours of recordings, but most are of Abu Zubaida alone in his cell recovering from his injuries.

The circumstances surrounding Abu Zubaida’s interrogation and treatment are still murky and fiercely disputed. FBI agents have opposed the use of coercive techniques as counterproductive and unreliable; intelligence officials have defended the tactics as valuable.

President Bush and others have portrayed Abu Zubaida as a crucial and highly placed terrorist, but some intelligence and law enforcement sources have said he did little more than help with logistics for al-Qaeda leaders and their associates.

In documents prepared for a military hearing at Guantanamo Bay, where he is still held, Abu Zubaida asserted that he was tortured by the CIA, and that he told his questioners whatever they wanted to hear to make the torture stop.

At the time the tapes were destroyed, several federal judges had issued court orders requiring the CIA and other government agencies to preserve records related to the interrogation and detention of alleged terrorism suspects after the Sept. 11 attacks. Some attorneys are seeking new orders for preserving the records.

In one case, attorneys for Yemeni national Mohmoad Abdah alleged in a motion filed Sunday that the CIA may have violated an order issued in June 2005 by U.S. District Judge Henry H. Kennedy Jr. in Washington. Kennedy told the government to “preserve and maintain all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay, Cuba.”

Because Abu Zubaida had provided information that led to the capture of several Guantanamo Bay detainees, defense attorneys argue that any recordings of his interrogation should have been preserved.

“The revelation that the CIA destroyed these videotapes raises grave concerns about the government’s compliance with the preservation order entered by this Court,” wrote Abdah’s lawyers, David H. Remes and Marc D. Falkoff.

Kiriakou, whose account first appeared in a story on ABC News’s Web site, said he decided to go public to correct what he says are misperceptions about the role played by CIA employees in the early months of the government’s anti-terrorism efforts.

“It’s easy to point to intelligence failures and perceived intelligence failures, but the public has to understand how hard people are working to make them safe,” he said.

Kiriakou said he first spoke to Abu Zubaida in a Pakistani military hospital. Abu Zubaida was recovering from wounds he suffered in the gun battle that led to his capture.

After he came out of a coma, Abu Zubaida was initially talkative, holding long conversations with Kiriakou from his hospital bed. The two discussed personal matters that ranged from religion to Abu Zubaida’s private regret about having never married or fathered children.

Kiriakou said he repeatedly counseled Abu Zubaida to provide details about al-Qaeda’s infrastructure, leadership and plans. Abu Zubaida refused and eventually became more defiant.

He was later flown to a secret CIA prison, where he was subjected to harsher methods, including waterboarding, Kiriakou said. Kiriakou said he made a final appeal to Abu Zubaida shortly before the waterboarding began.

“You have one more opportunity to cooperate. My guys are telling me that you’re being a jerk,” Kiriakou recalled telling Abu Zubaida. His reply, according to Kiriakou: “They’re being jerks, too.”

Kiriakou said he now has mixed feelings about the use of waterboarding. He said that he thinks the technique provided a crucial break to the CIA and probably helped prevent attacks, but that he is now convinced that waterboarding is torture, and “Americans are better than that.”

“Maybe that’s inconsistent, but that’s how I feel,” he said. “It was an ugly little episode that was perhaps necessary at that time. But we’ve moved beyond that.”

Staff writers Walter Pincus and Michael Abramowitz and staff researcher Julie Tate contributed to this report.

December 10, 2007 – I was the chief prosecutor for the military commissions at Guantanamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.

In my view — and I think most lawyers would agree — it is absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality. Yet the political appointee known as the “convening authority” — a title with no counterpart in civilian courts — was not living up to that obligation.

In a nutshell, the convening authority is supposed to be objective — not predisposed for the prosecution or defense — and gets to make important decisions at various stages in the process. The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.

Earlier this year, Susan Crawford was appointed by the secretary of Defense to replace Maj. Gen. John Altenburg as the convening authority. Altenburg’s staff had kept its distance from the prosecution to preserve its impartiality. Crawford, on the other hand, had her staff assessing evidence before the filing of charges, directing the prosecution’s pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things.

How can you direct someone to do something — use specific evidence to bring specific charges against a specific person at a specific time, for instance — and later make an impartial assessment of whether they behaved properly? Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.

The second reason I resigned is that I believe even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors. Telling the world, “Trust me, you would have been impressed if only you could have seen what we did in the courtroom” will not bolster our standing as defenders of justice. Getting evidence through the classification review process to allow its use in open hearings is time-consuming, but it is time well spent.

Crawford, however, thought it unnecessary to wait because the rules permit closed proceedings. There is no doubt that some portions of some trials have to be closed to protect classified information, but that should be the last option after exhausting all reasonable alternatives. Transparency is critical.

Finally, I resigned because of two memos signed by Deputy Secretary of Defense Gordon England that placed the chief prosecutor — that was me — in a chain of command under Defense Department General Counsel William J. Haynes. Haynes was a controversial nominee for a lifetime appointment to the U.S. 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.

I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned. Haynes and I have different perspectives and support different agendas, and the decision to give him command over the chief prosecutor’s office, in my view, cast a shadow over the integrity of military commissions. I resigned a few hours after I was informed of Haynes’ place in my chain of command.

The Military Commissions Act provides a foundation for fair trials, but some changes are clearly necessary. I was confident in full, fair and open trials when Gen. Altenburg was the convening authority and Brig. Gen. Tom Hemingway was his legal advisor. Collectively, they spent nearly 65 years in active duty, and they were committed to ensuring the integrity of military law. They acted on principle rather than politics.

The first step, if these truly are military commissions and not merely a political smoke screen, is to take control out of the hands of political appointees like Haynes and Crawford and give it back to the military.

The president first authorized military commissions in November 2001, more than six years ago, and the lack of progress is obvious. Only one war-crime case has been completed. It is time for the political appointees who created this quagmire to let go.

Sens. John McCain and Lindsey Graham have said that how we treat the enemy says more about us than it does about him. If we want these military commissions to say anything good about us, it’s time to take the politics out of military commissions, give the military control over the process and make the proceedings open and transparent.

Morris D. Davis is the former chief prosecutor for the Office of Military Commissions. The opinions expressed are his own and do not represent the views of the Department of Defense or the Department of the Air Force.

December 10, 2007 – NIU journalism major Ilona Meagher will testify Wednesday in front of a U.S. congressional committee.

The hearing will discuss health care options for veterans and the effects of post-traumatic stress disorder, or PTSD. within the veteran committee, a topic Meagher has become a recognized expert on.  Meagher’s book on the topic, “Moving a Nation to Care: Post-Traumatic Stress Disorder and America’s Returning Troops,” was published in May 2007.

“I never would have even dreamed that I’d be asked to testify,” Meagher said.
The hearing will specifically discuss the recent studies released over the past couple months.

The first, a study by the National Alliance to End Homelessness, shows that one in four homeless adults are U.S. veterans.

The second, a CBS News report, determined that the suicide rate among veterans is double that of the general public.

“I’m just hoping to do very well for everybody, as I’ve had a lot people help me along the way,” she said. “It’s really an honor to represent regular American citizens and to represent a part of people doing some great work.”

Meagher is also helping to shape the hearing agenda at the request of Committee Chairman Bob Filner (D-CA).

“It’s a very humbling experience,” Meagher said in an NIU press release. “I see myself representing other concerned Americans who, after hearing of the reintegration difficulties of some of our returning troops and veterans, may find themselves saying, ‘We can do better by them.’”

Meagher, a 41-year-old former flight attendant, began collecting media reports of combat-related PTSD incidents in 2005 after viewing a news account of veterans of Iraq who had committed suicide.

“Being called to testify is the grand culmination of two years of steady work on this issue for me,” Meagher said in the release. “To have the chance to advocate for our military families and perhaps move the issues that are important to them forward is a great return on the time I’ve invested.”

Editor’s Note: Ilona Meagher also contributes to the Northern Star as a columnist.

Ilona Meagher has an online blog tracking her research of PTSD. To learn more, visit ptsdcombat.blogspot.com.

December 14, 2007 – A US marine has been found guilty of killing an Iraqi soldier while they were on night-time patrol in Falluja.

Lance Corporal Delano Holmes was convicted of negligent homicide, but was found not guilty of a more serious charge of unpremeditated murder.

Holmes told a military court in San Diego he stabbed the Iraqi private in a fight after suspecting he might be signalling to an insurgent sniper.

He now faces up to eight years in prison and a dishonourable discharge.

Holmes told the court he had had fought with Private Munther Jasem Muhammed Hassin while they had been on night-time sentry duty in Falluja.

He said he suspected that the Iraqi was signalling to insurgents with a lit cigarette and a mobile phone.

He told investigators that during the fight Pte Hassin reached for his AK-47 after refusing to put down the cigarette and phone.

Prosecutors accused Holmes of repeatedly stabbing the Iraqi solder with his bayonet. They said Pte Hassin was an ally of the United States, and there was no evidence he was anything but “a peaceful guy”.

Holmes’s defence lawyer told jurors the actions of the marine were “a perfectly reasonable application and escalation of force”.

A post-mortem examination found that Pte Hassin had 17 stab wounds, 26 cuts and a gash that nearly severed his nose.

Holmes was also found guilty of lying to his superiors about the incident.

The five-day trial focused on the politically sensitive issue of how US marines interact with the Iraqi security forces.

December 14, 2007 – Marine commanders would be required to intervene in cases in which combat-hardened Marines with clean records have gotten into trouble after suffering combat stress, under a proposed order.

The directive, which has not yet been signed by Marine Corps Commandant James Conway, would require medical officers to screen for combat stress or traumatic brain injury (TBI) all Marines who engage in uncharacteristic misconduct after returning from combat.

The misconduct could include drug use, unauthorized absences or disrespectful conduct and could result in a dismissal from service and the denial of Department of Veterans Affairs services.

“Post-deployment misconduct, especially in a Marine who previously served honorably, must be considered a possible indicator of an undiagnosed stress injury or a mild traumatic brain injury that, if confirmed, deserves immediate and comprehensive treatment,” the order says.

The order is under review and has no release date, said Navy Capt. William Nash, who coordinates the Marines’ combat-stress program.

At least one-third of 1,019 combat-veteran Marines who received less-than-honorable discharges for misconduct showed evidence of mental health problems, according to Marine Corps research Nash disclosed in June.

USA TODAY reported last year that veterans with less-than-honorable discharges are usually denied VA health care benefits.

Nash said in June the Marine Corps lacked enough mental health caregivers to screen troops where misconduct occurred. The draft order appears to address that problem by allowing the preliminary examinations to be carried out by unit medical officers.

It “may not be justice” to strip a Marine of benefits after a dismissal linked to combat stress, Nash said.

The order does not absolve Marines of responsibility for their actions, even if they are the result of stress or brain damage.

However, the order says, “immediate screening for these conditions is also essential. Early treatment and screening when indicated without delay for legal proceedings gives the Marine the greatest chance of recovery.”

The Marine proposal will “put physical and psychological injuries on the table when acts of misconduct are being considered,” says Shelley MacDermid, a Purdue University professor who chaired a task force that highlighted the problem of combat stress-related misconduct in June.

December 13, 2007 – The parents of an Iraq war veteran who committed suicide and members of Congress on Wednesday questioned why there’s not a comprehensive tracking system of suicide among Iraq and Afghanistan veterans.

Mike Bowman, of Forreston, Ill., said his son, Spc. Timothy Bowman, 23, is a member of the “unknown fallen” not counted in statistics. His son, a member of the Illinois National Guard, took his own life in 2005 eight months after returning from war. Bowman said he considers his son a “KBA” — killed because of action.

“If the veteran suicide rate is not classified as an epidemic that needs immediate and drastic attention, then the American fighting soldier needs someone in Washington who thinks it is,” Bowman said.

Bowman was one of several witnesses who testified before the House Veterans’ Affairs Committee on the issue.

Rep. Bob Filner, the committee chairman, questioned why the comprehensive tracking wasn’t already being done.

“They don’t want to know this, it looks to me,” said Filner, D-Calif. “This could be tracked.”

Dr. Ira Katz, the VA’s deputy chief patient care service officer for mental health at the Department of Veterans Affairs, defended the work being done by his agency to tackle the issue, including implementing a suicide prevention hotline.

“We have a major suicide prevention program, the most comprehensive in the nation,” Katz said. Katz questioned why Filner was focusing on the number of suicides instead of looking at treatment programs implemented to help prevent suicide.

Awareness of suicide among Iraq and Afghanistan veterans was heightened earlier this year when the Army said its suicide rate in 2006 rose to 17.3 per 100,000 troops — the highest level in 26 years of record-keeping.

The Department of Veterans Affairs tracks the number of Iraq and Afghanistan veterans who commit suicide, but only if they have been discharged from the military.

The Pentagon tracks the number of suicides in Iraq and Afghanistan. For an earlier story, a Pentagon spokeswoman told The Associated Press the military does not keep track of whether active duty troops who took who took their own lives served in Iraq or Afghanistan.

In an e-mail on Wednesday, the same spokeswoman, Cynthia Smith, said, “We track all suicides, I just don’t have combat service information readily available.”

At least 152 troops have committed suicide in Iraq and Afghanistan, according to the Defense Manpower Data Center, which tracks casualties for the Pentagon.

On Oct. 31, the AP reported that preliminary research from the Department of Veterans Affairs had found that from the start of the war in Afghanistan on Oct. 7, 2001, and the end of 2005, 283 troops who served in the wars who had been discharged from the military had committed suicide. On Wednesday, Katz said the VA’s number had been changed to 144 because some of the veterans counted were actually in the active military and not discharged on the day they committed suicide.

Smith said that the military’s suicide rate is still lower than that of the general population.

After leaving the military, however, veterans appear to be at greater risk for suicide than those who didn’t serve. Earlier this year, researchers at Portland State University in Oregon found male veterans were twice as likely to commit suicide as their civilian counterparts.

In a report last May, the VA Inspector General said VA officials estimate 1,000 suicides per year among veterans receiving care within the agency and as many as 5,000 per year among all veterans.

“When decision makers do no have reliable data, we must rely on anecdotal evidence,” said Rep. Steve Buyer, R-Ind. “While these may help inform us, it does not help us to develop strategies to diminish the risk and prevent incidents of suicide.”

December 7, 2007 – Damn, I love me some Sheldon Whitehouse. He, like, actually knows the law. And he, like, is willing to actually read the stuff he is exercising oversight over.

Which is why this speech he gave today is so important. Apparently, Whitehouse actually read the OLC opinions that justified the warrantless wiretap program and continue to justify the Administration’s wiretap authority today. Then, Whitehouse got the key concepts of some of those opinions declassified. Here’s his description of what he found.

For years under the Bush Administration, the Office of Legal Counsel within the Department of Justice has issued highly classified secret legal opinions related to surveillance. This is an administration that hates answering to an American court, that wants to grade its own papers, and OLC is the inside place the administration goes to get legal support for its spying program.

As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island’s Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.

To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified. Here they are, as accurately as my note taking could reproduce them from the classified documents. Listen for yourself. I will read all three, and then discuss each one.

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.

The Department of Justice is bound by the President’s legal determinations.

I noticed Whitehouse sniffing around the question of Executive Orders before. I thought (okay, hoped, really) that he was sniffing around 13292, which governs classification and declassification, including whether the Vice President can unilaterally declassify the identity of a CIA NOC. But it turns out he was sniffing around EO 12333, which governs Intelligence Activities (and though it’s not central to this discussion, here’s an amendment Bush made in 2004 to set up DNI).

Here’s what–according to Whitehouse, who after all ought to know–Bush believes about whether or not he has to follow EO 12333, an Executive Order signed by Saint Reagan.

Let’s start with number one. Bear in mind that the so-called Protect America Act that was stampeded through this great body in August provides no – zero – statutory protections for Americans traveling abroad from government wiretapping. None if you’re a businesswoman traveling on business overseas, none if you’re a father taking the kids to the Caribbean, none if you’re visiting uncles or aunts in Italy or Ireland, none even if you’re a soldier in the uniform of the United States posted overseas. The Bush Administration provided in that hastily-passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail, whatever.

The only restriction is an executive order called 12333, which limits executive branch surveillance to Americans who the Attorney General determines to be agents of a foreign power. That’s what the executive order says.

But what does this administration say about executive orders?

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

“Whenever (the President) wishes to depart from the terms of a previous executive order,” he may do so because “an executive order cannot limit a President.” And he doesn’t have to change the executive order, or give notice that he’s violating it, because by “depart(ing) from the executive order,” the President “has instead modified or waived it.”

So unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing.

That was among the most egregious flaws in the bill passed during the August stampede they orchestrated by the Bush Administration – and this OLC opinion shows why we need to correct it.

I’ll put the rest of the excerpt of Whitehouse’s speech below. But for now, I want to discuss this.

Obviously, the implications of this OLC opinion go far beyond the warrantless wiretapping of Americans. While it appears that Whitehouse wasn’t primarily interested in EO 13292, presumably the OLC opinion governs all Executive Orders. So in other words, the President can declassify at will (well, he could do that anyway). Or more importantly, he could authorize his Vice President to refuse to tell us about his classification and declassification guidelines (as Dick did to ISOO–I’m betting this opinion is why AGAG refused to rule on the ISOO/Dick dispute), and he can unilaterally declassify anything and leak it to Judy Miller or some other hack journalist.

But here’s the other key point (and one of the reasons I like the way Whitehouse works). He specifically asked Michael Mukasey about EOs before Mukasey was approved.

2. Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?

ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

So Mukasey, unaware that Bush had set aside all common sense, gave the common sense, legally sound answer. “Of course the President can’t violate his own EOs! He would need to change them first!”

And now the AG is on record as thinking this whole state of affairs stinks.

——————————————————————————–

Here’s Whitehouse’s speech in it’s entirety. And here’s a link to a copy at his website.

We will shortly consider making right the things that are wrong with the so-called Protect America Act, a second-rate piece of legislation passed in a stampede in August at the behest of the Bush Administration. It is worth for a moment considering why making this right is so important.

President Bush pressed this legislation not only to establish how our government can spy on foreign agents, but how his administration can spy on Americans. Make no mistake, the legislation we passed in August is significantly about spying on Americans – a business this administration should not be allowed to get into except under the closest supervision. We have a plain and tested device for keeping tabs on the government when it’s keeping tabs on Americans. It is our Constitution.

Our Constitution has as its most elemental provision the separation of governmental powers into three separate branches. When the government feels it necessary to spy on its own citizens, each branch has a role.

The executive branch executes the laws, and conducts surveillance. The legislative branch sets the boundaries that protect Americans from improper government surveillance. The judicial branch oversees whether the government has followed the Constitution and the laws that protect U.S. citizens from violations of their privacy and their civil rights.

It sounds basic, but even an elementary understanding of this balance of powers eludes the Bush administration. So now we have to repair this flawed and shoddy “Protect America Act.”

Why are we in Congress so concerned about this? Why is it so vital that we energetically assert the role of Congress and the Courts when the Bush Administration seeks to spy on Americans?

Because look what the Bush Administration does behind our backs when they think no one is looking.

For years under the Bush Administration, the Office of Legal Counsel within the Department of Justice has issued highly classified secret legal opinions related to surveillance. This is an administration that hates answering to an American court, that wants to grade its own papers, and OLC is the inside place the administration goes to get legal support for its spying program.

As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island’s Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.

To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified. Here they are, as accurately as my note taking could reproduce them from the classified documents. Listen for yourself. I will read all three, and then discuss each one.

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.

The Department of Justice is bound by the President’s legal determinations.

Let’s start with number one. Bear in mind that the so-called Protect America Act that was stampeded through this great body in August provides no – zero – statutory protections for Americans traveling abroad from government wiretapping. None if you’re a businesswoman traveling on business overseas, none if you’re a father taking the kids to the Caribbean, none if you’re visiting uncles or aunts in Italy or Ireland, none even if you’re a soldier in the uniform of the United States posted overseas. The Bush Administration provided in that hastily-passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail, whatever.

The only restriction is an executive order called 12333, which limits executive branch surveillance to Americans who the Attorney General determines to be agents of a foreign power. That’s what the executive order says.

But what does this administration say about executive orders?

An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

“Whenever (the President) wishes to depart from the terms of a previous executive order,” he may do so because “an executive order cannot limit a President.” And he doesn’t have to change the executive order, or give notice that he’s violating it, because by “depart(ing) from the executive order,” the President “has instead modified or waived it.”

So unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing.

That was among the most egregious flaws in the bill passed during the August stampede they orchestrated by the Bush Administration – and this OLC opinion shows why we need to correct it.

Here’s number two.

The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.

Yes, that’s right. The President, according to the George W. Bush OLC, has Article II power to determine what the scope of his Article II powers are.

Never mind a little decision called Marbury v. Madison, written by Chief Justice John Marshall in 1803, establishing the proposition that it is “emphatically the province and duty of the judicial department to say what the law is.” Does this administration agree that it is emphatically the province and the duty of the judicial department to say what the President’s authority is under Article II? No, it is the President, according to this OLC, who decides the legal limits of his own Article II power.

The question “whether an action is a lawful exercise of the President’s authority under Article II,” is to be determined by the President’s minions, “exercising his constitutional authority under Article II.”

It really makes you wonder, who are these people? They have got to be smart people to get there. How can people who are so smart be so misguided?

And then, it gets worse. Remember point three.

The Department of Justice is bound by the President’s legal determinations.

Let that sink in a minute.

The Department of Justice is bound by the President’s legal determinations.

We are a nation of laws, not of men. This nation was founded in rejection of the royalist principles that “l’etat c’est moi” and “The King can do no wrong.” Our Attorney General swears an oath to defend the Constitution and the laws of the United States; we are not some banana republic in which the officials all have to kowtow to the “supreme leader.” Imagine a general counsel to a major U.S. corporation telling his board of directors, “in this company the counsel’s office is bound by the CEO’s legal determinations.” The board ought to throw that lawyer out – it’s malpractice, probably even unethical.

Wherever you are, if you are watching this, do me a favor. The next time you are in Washington, D.C., take a taxi some evening to the Department of Justice. Stand outside, and look up at that building shining against the starry night. Look at the sign outside- “The United States Department of Justice.” Think of the heroes who have served there, and the battles fought. Think of the late nights, the brave decisions, the hard work of advancing and protecting our democracy that has been done in those halls. Think about how that all makes you feel.

Then think about this statement:

The Department of Justice is bound by the President’s legal determinations.

If you don’t feel a difference from what you were feeling a moment ago, well, congratulations – there is probably a job for you in the Bush administration. Consider the sad irony that this theory was crafted in that very building, by the George W. Bush Office of Legal Counsel.

In a nutshell, these three Bush administration legal propositions boil down to this:

“I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them.”
“I get to determine what my own powers are.”
“The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is.”

When the Congress of the United States is willing to roll over for an unprincipled President, this is where you end up. We should not even be having this discussion. But here we are. I implore my colleagues: reject these feverish legal theories. I understand political loyalty, trust me, I do. But let us also be loyal to this great institution we serve in the legislative branch of our government. Let us also be loyal to the Constitution we took an oath to defend, from enemies foreign and domestic. And let us be loyal to the American people who live each day under our Constitution’s principles and protections.

We simply cannot put the authority to wiretap Americans, whenever they step outside America’s boundaries, under the exclusive control and supervision of the executive branch. We do not allow it when Americans are here at home; we should not allow it when they travel abroad. The principles of congressional legislation and oversight, and of judicial approval and review, are simple and longstanding. Americans deserve this protection wherever on God’s green earth they may travel.

December 10, 2007 – Some months ago a friend of mine – an Iraq vet – committed suicide. He was a solid citizen, a hard working family man, serious, level-headed, and had a deep desire to help others. The kind of person who makes a community a better place to live.

Shortly after he returned from a tour in Iraq, he put a bullet through his head. Was this an unfortunate aberration, or was this an indication of something more insidious?

War changes people. Killing is an unnatural act, requiring a person to brutalize a basic moral instinct that seems to be hard-wired at birth into the vast majority of people. Participating in the often senseless death of civilians – and civilians pay the greatest price in war (as many as three million killed in Vietnam, over a million so far in Iraq) – plays havoc with the mind, often leading to Post Traumatic Stress Disorder (PTSD).

At this point, almost a third of returning Iraq vets are reporting PTSD. Are these soldiers getting the help they need? Of course not. The current administration spends billions and billions on weapons of mass destruction while permitting the Veterans Administration to carry a backlog of 800,000 cases, and mental health is not a high priority. I know of one soldier with serious PTSD at a VA hospital whose treatment consists of one hour of group therapy a day. Now that’s caring for our troops.

What’s the result of this neglect? CBS News recently did a massive study on suicide going back 12 years, using data from the 45 states that responded to the CBS request for information. After looking at the data, specifically searching out suicides of veterans, CBS made an astounding discovery. In 2005, 6,256 vets committed suicide – undoubtedly more considering that five states didn’t share their statistics. That’s an average of 17 veteran suicides a day.

How does the VA respond to these shocking statistics? The VA maintains that these suicides result from “personal problems,” that these deaths have nothing to do with what soldiers saw and did in combat. I’m not a psychologist, but I could tell the VA that my friend was as steady and normal as anyone I’ve ever known.

He didn’t have “personal problems.” What he had was a continuous loop tape of blood, death, and destruction in his head that he couldn’t turn off. He honored his country’s call to war, and his country dishonored him when he returned, just as it dishonors each of those 17 vets who will commit suicide today and tomorrow and tomorrow.

Author Penny Coleman, widow of a vet who committed suicide, points out a chilling irony. Mr. Bush likes to say about suicide bombers that, “Those people, they aren’t like us; they don’t value life the way we do.” He often talks about suicide bombers being motivated by despair, neglect and poverty – though the facts don’t support his assertions. (He follows in the grand tradition of Ronald Reagan who said, “Facts are stupid things.) Yet 6 million veterans and their families have no healthcare. Brain injury and PTSD make getting and keeping a job almost impossible. And though vets make up only 11 percent of the adult population, they make up 26 percent of the homeless. Talk about despair, neglect, and poverty!

To quote Ms. Coleman directly from a recent article, “There is something so smugly superior in the way we talk about suicide bombers and the cultures that produce them. But here is an unsettling thought. In 2005, 6,256 American veterans took their own lives.

That same year, there were about 130 documented deaths of suicide bombers in Iraq. Do the math. That’s a ratio of 50-1. So who is it that is most effectively creating a culture of suicide and martyrdom? If George Bush is right, that it is despair, neglect and poverty that drive people to such acts, then isn’t it worth pointing out that we are doing a far better job?”

I hold Mr. Bush and Mr. Cheney accountable for my friend’s death, and for the death of every vet who honorably served his country in this most dishonorable war, to be cruelly abandoned upon return.

The blood of these soldiers drips from the hands of Bush and Cheney, as does the blood of the innocent women and children slaughtered in this most evil of wars. Where is the outrage at these callous warmongers who extend tours and plot to attack yet another country while ignoring injured vets?

Where is the Congress? Where are my senators, Mr. Byrd and Mr. Rockefeller? What have we become that we allow this to continue?

December 10, 2007 – Iraq war veterans are starting to line up for free meals and a warm bed at the Boulder Shelter for the Homeless.

“Traditionally, we’ve seen veterans from Vietnam – veterans consistently have been 25 percent of the homeless population,” said Greg Harms, executive director of the shelter. “Just now, we’re starting to see veterans from our most recent war efforts.

“The longer we have protracted conflicts like the one we’re in now, the more likely there will be ramifications back home,” he said.

In this interview, Harms talks about the origins of the shelter and the growing need for its services. The shelter has applied for a Season to Share grant. His remarks have been edited for space and clarity.

Tell us about your clients

We serve about 1,000 people a year and we hear 1,000 different stories. Some are highly functional, working most days, but at jobs that might pay $7 or $8 or $9 an hour – not enough to get a foothold on an apartment in costly Boulder County. We also have folks who’ve fought addiction or mental health issues all their lives.

How did the Boulder Shelter for the Homeless get started?

A group of concerned citizens felt there needed to be a place, some shelter from the cold, for the homeless in Boulder. We started in 1982. Our 25th anniversary is coming up on Dec. 22.

Our first location was an old bus depot. Then we moved to the Alpine Motel in north Boulder. In 2003, we moved to our new building. It has 160 beds.

How did you get into this line of work?

I was on the board for five years, and I was a volunteer before that. I was in high-tech for a number of years. I have an MBA and an engineering degree. I just decided I wanted to do more than work and ski and ride my bike. So I called the shelter. I decided it was the work that I enjoy, so I made it my day job. It’s rewarding work, trying to make the world a better place. I get to apply my skill set to a cause I really believe in.

Can you talk about a case in which your agency really made a difference?

A little over a year ago we started a new program called Housing First, in which some of the chronically homeless are given permanent shelter without first necessarily proving that they’re sober and ready for the responsibility. Our very first placement was a guy who’d been on the streets for years and years – most local Boulder people would recognize him.

He was a chronic alcoholic. He’s now been housed close to 18 months. Most of that time he’s been sober. Housed and sober – that’s something that hasn’t happened to this guy in 20 years.

He’s an elderly guy, past working age and is on disability. He’s not on the street anymore, and he’s not circulating through all the support agencies like he was. He’s not showing up at the hospital emergency room. He’s not going to alcohol detox nearly as often. We’re probably actually saving the community considerable money by having him housed.

What’s the biggest need among the people you serve?

It varies. Some really need a roof over their heads. Others need mental health attention. The mental health center here in Boulder County has seen its budget cut about 25 percent over the past four years. The one generalization is that they are all poor.

We have 45 people on staff and 1,000 volunteers each year. It truly is a community shelter, supported by donations. But we can always use winter clothing, coats and hats and gloves, especially for men. Blankets we can always use.

Boulder Shelter for the Homeless

* Mission: Provide safe shelter, food, support services and an avenue to self-sufficiency for homeless adults in the community.
* Founded: 1982
* People helped: About 1,000
* Staff: 45
* Volunteers:1,000
* Budget: $1.5 million
* Web site: bouldershelter.org

December 10, 2007 – A Houston, Texas woman says she was gang-raped by Halliburton/KBR coworkers in Baghdad, and the company and the U.S. government are covering up the incident.

Jamie Leigh Jones, now 22, says that after she was raped by multiple men at a KBR camp in the Green Zone, the company put her under guard in a shipping container with a bed and warned her that if she left Iraq for medical treatment, she’d be out of a job.

“Don’t plan on working back in Iraq. There won’t be a position here, and there won’t be a position in Houston,” Jones says she was told.

In a lawsuit filed in federal court against Halliburton and its then-subsidiary KBR, Jones says she was held in the shipping container for at least 24 hours without food or water by KBR, which posted armed security guards outside her door, who would not let her leave.

“It felt like prison,” says Jones, who told her story to ABC News as part of an upcoming “20/20” investigation. “I was upset; I was curled up in a ball on the bed; I just could not believe what had happened.”

Finally, Jones says, she convinced a sympathetic guard to loan her a cell phone so she could call her father in Texas.

“I said, ‘Dad, I’ve been raped. I don’t know what to do. I’m in this container, and I’m not able to leave,'” she said. Her father called their congressman, Rep. Ted Poe, R-Texas.

“We contacted the State Department first,” Poe told ABCNews.com, “and told them of the urgency of rescuing an American citizen” — from her American employer.

Poe says his office contacted the State Department, which quickly dispatched agents from the U.S. Embassy in Baghdad to Jones’ camp, where they rescued her from the container.

According to her lawsuit, Jones was raped by “several attackers who first drugged her, then repeatedly raped and injured her, both physically and emotionally.”

Jones told ABCNews.com that an examination by Army doctors showed she had been raped “both vaginally and anally,” but that the rape kit disappeared after it was handed over to KBR security officers.

A spokesperson for the State Department’s Bureau of Diplomatic Security told ABCNews.com he could not comment on the matter.

Over two years later, the Justice Department has brought no criminal charges in the matter. In fact, ABC News could not confirm any federal agency was investigating the case.

Legal experts say Jones’ alleged assailants will likely never face a judge and jury, due to an enormous loophole that has effectively left contractors in Iraq beyond the reach of United States law.

“It’s very troubling,” said Dean John Hutson of the Franklin Pierce Law Center. “The way the law presently stands, I would say that they don’t have, at least in the criminal system, the opportunity for justice.”

Congressman Poe says neither the departments of State nor Justice will give him answers on the status of the Jones investigation.

Asked what reasons the departments gave for the apparent slowness of the probes, Poe sounded frustrated.

“There are several, I think, their excuses, why the perpetrators haven’t been prosecuted,” Poe told ABC News. “But I think it is the responsibility of our government, the Justice Department and the State Department, when crimes occur against American citizens overseas in Iraq, contractors that are paid by the American public, that we pursue the criminal cases as best as we possibly can and that people are prosecuted.”

Since no criminal charges have been filed, the only other option, according to Hutson, is the civil system, which is the approach that Jones is trying now. But Jones’ former employer doesn’t want this case to see the inside of a civil courtroom.

KBR has moved for Jones’ claim to be heard in private arbitration, instead of a public courtroom. It says her employment contract requires it.

In arbitration, there is no public record nor transcript of the proceedings, meaning that Jones’ claims would not be heard before a judge and jury. Rather, a private arbitrator would decide Jones’ case. In recent testimony before Congress, employment lawyer Cathy Ventrell-Monsees said that Halliburton won more than 80 percent of arbitration proceedings brought against it.

In his interview with ABC News, Rep. Poe said he sided with Jones.

“Air things out in a public forum of a courtroom,” said Rep. Poe. “That’s why we have courts in the United States.”

In her lawsuit, Jones’ lawyer, Todd Kelly, says KBR and Halliburton created a “boys will be boys” atmosphere at the company barracks which put her and other female employees at great risk.

“I think that men who are there believe that they live without laws,” said Kelly. “The last thing she should have expected was for her own people to turn on her.”

Halliburton, which has since divested itself of KBR, says it “is improperly named” in the suit.

In a statement, KBR said it was “instructed to cease” its own investigation by U.S. government authorities “because they were assuming sole responsibility for the criminal investigations.”

“The safety and security of all employees remains KBR’s top priority,” it said in a statement. “Our commitment in this regard is unwavering.”

Since the attacks, Jones has started a nonprofit foundation called the Jamie Leigh Foundation, which is dedicated to helping victims who were raped or sexually assaulted overseas while working for government contractors or other corporations.

“I want other women to know that it’s not their fault,” said Jones. “They can go against corporations that have treated them this way.” Jones said that any proceeds from the civil suit will go to her foundation.

“There needs to be a voice out there that really pushed for change,” she said. “I’d like to be that voice.”