The Progress Report

by Judd Legum, Faiz Shakir, Nico Pitney
Amanda Terkel, Payson Schwin and Christy Harvey


November 14, 2005
IRAQ
Bush's Reverse Slam Dunk

HUMAN RIGHTS
Senate Set to Preserve Indefinite Detention

UNDER THE RADAR
Go Beyond The Headlines

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IRAQ
Bush's Reverse Slam Dunk

On Friday, President Bush skipped the traditional Veterans Day wreath-laying at the Tomb of the Unknown Soldier in order to deliver a promised "hit back" against those calling for a strategy for success in Iraq. One senior administration official described the speech as the "most direct refutation" of Iraq critics "you've seen probably since the election," and said it marked the first stage of a coordinated "offensive" that "will play out over several weeks." (The offensive continued this weekend with remarks by National Security Adviser Stephen Hadley and Ken Mehlman, former White House deputy to Karl Rove.) Before the war, the Bush administration presented its pre-war intelligence as a "slam dunk"; now it wants to engage in revisionist history. President Bush's latest case (which is notably similar to past efforts) is based upon three fundamentally flawed arguments: 1) that Congress had access to the same intelligence as the White House prior to the war; 2) that the bipartisan Senate investigation found that the Bush administration did not misrepresent prewar intelligence; and 3) that intelligence agencies around the world agreed with the Bush administration's assessment of the Iraqi threat. Bush is entitled to his own opinion as to how the administration got it so wrong on Iraq; however, he is not entitled to his own facts.

FACT: CONGRESS DID NOT HAVE THE "SAME INTELLIGENCE" AS THE WHITE HOUSE: In his speech, President Bush claimed that members of Congress who voted for the 2002 Iraq war resolution "had access to the same intelligence" as his administration. This is false. As the Washington Post pointed out Saturday, "Bush and his aides had access to much more voluminous intelligence information than did lawmakers, who were dependent on the administration to provide the material." For instance, in the lead up to war, the Bush administration argued that Iraq had made several attempts to "buy high-strength aluminum tubes used in centrifuges to enrich uranium for nuclear weapons." The White House sent 15 intelligence assessments to Congress supporting this notion, but according to the New York Times, "not one of them" informed readers that experts within the Energy Department believed the tubes could not be used to reconstitute a nuclear weapons program. Even Senate Intelligence Committee Chairman Pat Roberts (R-KS) -- who has led efforts to delay and downplay the need for investigating prewar intelligence -- confirmed this broader point yesterday. Asked whether the differences between the intelligence available to the White House and to Congress was a "legitimate concern," Roberts acknowledged that it "may be a concern to some extent."

FACT: SENATE INTEL REPORT SHOWED MANIPULATION OF THE EVIDENCE: Bush claimed that "a bipartisan Senate investigation found no evidence of political pressure to change the intelligence community's judgments related to Iraq's weapons programs." That argument is wrong on at least two counts. First, "the only committee investigating the matter in Congress, the Senate Select Committee on Intelligence, has not yet done its inquiry into whether officials mischaracterized intelligence by omitting caveats and dissenting opinions." The so-called Phase II of the pre-war intel investigation is not expected to be completed this year. Second, the Senate Intelligence Committee's Phase I report found, according to the Los Angeles Times (7/10/04), that the unclassified public version of the National Intelligence Estimate (NIE) was manipulated. "[C]arefully qualified conclusions [in the classified NIE] were turned into blunt assertions of fact." For example, the classified version of the NIE said, "Although we have little specific information on Iraq’s CW stockpile, Saddam Hussein probably has stocked at least 100 metric tons" of certain poisons. The phrase "although we have little specific information" was deleted from the unclassified version. Instead, the public report said, "Saddam probably has stocked a few hundred metric tons of CW agents."

FACT: THE WORLD WAS NOT IN AGREEMENT WITH BUSH: One frequent talking point of Bush's defenders is that the pre-war intelligence failure was a global failure. "Every intelligence agency in the world, including the Russians, the French...all reached the same conclusion," Sen. John McCain (R-AZ) said on CBS's "Face the Nation." Similarly, Sen. Pat Roberts (R-KS) claimed, "This was a worldwide intelligence failure," citing the French and Russians, among others. In fact, many of our friends and allies believed that, based on the intelligence they had, the threat of Iraq did not rise to the level of justifying immediate force. French President Jacques Chirac said, "[W]e just feel that there is another option, another way, a less dramatic way than war." German Foreign Minister Joschka Fischer said he did not believe the threat rose to the level requiring the "'ultima ratio,' the very last resort." And Russian Foreign Minister Igor Ivanov said, "It is our deep conviction that the possibilities for disarming Iraq through political means do exist."


HUMAN RIGHTS
Senate Set to Preserve Indefinite Detention

Last Thursday, the Senate voted 49-42 in support of Sen. Lindsey Graham's (R-SC) amendment to "strip away the right of war-on-terror prisoners held at the military's Guantánamo Bay jail in Cuba to challenge their detentions in court." The amendment is designed as an end-run around last year's Supreme Court decision in Rasul v. Bush, which upheld the right of detainees in Guantánamo Bay to file habeas corpus petitions, since Guantánamo is within federal jurisdiction. Gita Gutierrez, a lawyer with New York's Center for Constitutional Rights, said of the vote, "This is one of the worst things the Senate has ever done. On the back of a cocktail napkin, they have tossed aside protections of individual liberty that have been in existence for centuries." Graham's amendment is not all bad: it also bars the use of coerced evidence at military tribunals. But the seriousness of suspending habeas corpus is evidenced by its rarity in American history -- Abraham Lincoln was the last president to take that step. Today, the Senate is set to vote on a substitute amendment offered by Sen. Jeff Bingaman (D-NM) that would restore habeas corpus rights. Write or call your Senator today and urge them to support the Bingaman amendment. America's struggle against terrorism should be designed to protect and preserve our most fundamental rights, not to undo them.

THE GOOD NEWS - COERCED EVIDENCE WOULD NOT BE PERMISSIBLE: The Graham amendment would address "one of the biggest complaints about tribunals, barring them from relying on evidence obtained through 'undue coercion' that may be unreliable." The status of inmates at Guantanamo Bay would fall under a mandated automatic review, and the proceedings "would exclude coerced confessions from that review, and place important new controls over Guantanamo operations." "These safeguards," writes the New York Times, "are long overdue."

THE BAD NEWS - A RARE, SUDDEN MOVE TO SUSPEND HABEAS CORPUS: "Habeas corpus is the legal term for the power of courts, dating back to the English Magna Carta, to force a king or president to justify a person's imprisonment," Newsday reported. "It was last suspended for U.S. citizens by President Abraham Lincoln during the Civil War." "That's one reason legal experts were stunned when the Senate, after an hour of debate, voted Thursday to overturn the Supreme Court's extension of habeas-corpus protection to 500-plus detainees at the Guantánamo Bay base in Cuba." While many of the detainees held in Guantanamo are not U.S. citizens, the basic human right to hear the charges against oneself, as outlined in the Magna Carta, has rarely been suspended in this country, and only under the most dire circumstances. "These are the kind of weighty problems which we have not sorted through," Sen. Arlen Specter (R-PA) warned. "When you undertake to remove habeas corpus, you better know where you are, and you better have a comprehensive plan."

UNFETTERED EXECUTIVE POWER: Law scholars from around the country warned the provision would undermine our constitutional rights, while handing over too much power to the executive branch. In a letter urging the Senate to reject the language, three faculty members from Yale, Harvard, and New York University Law Schools wrote, "The Graham amendment embodies an effort to alter fundamental precepts of our constitutional order. It consigns the protection of fundamental human liberties to unilateral executive determination." "The proposed [habeas corpus] amendment would sanction unreviewable executive detention that cannot be harmonized with our nation's long-standing adherence to the rule of law," said Eugene Fidell, president of the National Institute of Military Justice. "Military detention without due process is antithetical to our fundamental values."

OVERRIDING THE JUDICIAL BRANCH: These efforts come on the heels of a Supreme Court decision to allow Guantánamo detainees to file petitions for habeas corpus hearings. In Rasul v. Bush, the Court decided to extend this fundamental right to the detainees. Justice John Paul Stevens wrote in the decision, "What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. Answering that question in the affirmative, we reverse the judgment of the Court of Appeals and remand for the District Court to consider in the first instance the merits of petitioners’ claims." Although only around 200 of the 500 prisoners at Guantanamo have filed petitions so far, the Senate has decided to challenge this decision outright. Scott Silliman, a former Air Force lawyer now at Duke University, said the Senate is "trying to reverse a Supreme Court case of great magnitude and scuttle another one. ... This is momentous."



Under the Radar

SUPREME COURT -- ALITO WROTE 'CONSTITUTION DOES NOT PROTECT A RIGHT TO ABORTION': Today, the White House will release the documents of Alito's career in the Reagan administration, demonstrating "his conservative bona fides." In his appointment form, Alito stated, "I am and always have been a conservative" and in a 1985 document, that "the Constitution does not protect a right to an abortion" and "I personally believe very strongly [in this legal position]." When in the office of the Solicitor General, Alito wrote he was proud to "help to advance legal positions in which I personally believe very strongly."

CIVIL RIGHTS -- BUSH ADMINISTRATION POLITICIZES CIVIL RIGHTS DIVISION: The Bush administration has been firmly on the side of political appointees and against enforcing civil rights and competence in Justice Department's civil rights division. Prosecutions for traditional racial and gender discrimination crimes have declined 40 percent over the past five years, battles against discrimination begun in earlier administrations were "simply abandoned," "friend-of-the-court" briefs have gone from 22 in 1999 to three in 2004, and the division "now spends nearly half its time defending deportation orders rather than pursuing civil rights litigation." The Bush administration's changes have "driven away dozens of veteran lawyers and has damaged morale for many of those who remain" and "many [experienced career employees] have been forced to move to other divisions or to handle cases unconnected to civil rights."

KATRINA -- FEMA NEVER FOLLOWED THROUGH ON PROMISE TO REBID NO-BID CONTRACTS: The Associated Press reports, "Despite a month-old pledge, the Federal Emergency Management Agency has yet to reopen four of its biggest no-bid contracts for Hurricane Katrina work and will not do so until the contracts are virtually complete. A promise to hire more minority-owned firms also is largely unfulfilled." Taxpayers and evacuees lost big when Akima's high cost, remote geographic location, and negligence were overlooked and the company received the contract because of the its strong political connections. Akima Management Services, which received a $40 million no-bid contract, has constructed portable classrooms at a cost of $90,000 each, "double the wholesale price and nearly 60 percent higher than the price offered by two small Mississippi businesses dropped from the deal." In addition, the New York Times reports the buildings were "not secured in a concrete foundation" as required by state regulations.

MEDIA -- O'REILLY STANDS BY APPROVAL OF TERRORIST ATTACK ON SAN FRANCISCO: Even for Fox News anchor Bill O'Reilly, last week's remarks approving of a terrorist attack on San Francisco marked a new low. "If you want to ban military recruiting [in public schools], fine. But I’m not going to give you another nickel of federal money,” O’Reilly said on his syndicated radio program. “If Al Qaeda comes in here and blows you up, we’re not going to do anything about it. We’re going to say, 'look, every other place in America is off limits to you, except San Francisco. You want to blow up the Coit Tower? Go ahead.'" John Hanley, president of the San Francisco Firefighter's Union Local 798, was particularly "incensed," since Coit Tower is a monument to the city's firefighters. "Mr. O'Reilly, maybe we should bring you into some of our burning buildings and see how brave you are," Hanley said. Responding to critics on Friday, O'Reilly was unapologetic. "What I said isn't controversial. What I said needed to be said. ... [T]he left-wing, selfish, Land of Oz philosophy that the media and the city politicians have embraced out there is an absolute intellectual disgrace."

DARFUR -- CONGRESS' WORDS ARE NOT FOLLOWED UP BY ACTION: The Christian Science Monitor reports that a year ago the House of Representatives acted to call the violence in Sudan's Darfur region "by its rightful name: genocide. ... But earlier this month a House committee - in a budget-cutting mode and amid what Darfur experts say is a mistaken sense that violence in the traumatized region has been quelled - voted to trim the $50 million that lawmakers had approved earlier in the year for the African Union force." Jonathan Morganstein, co-author of a new report on Darfur by Refugees International, said genocide could be staved off for less than 15 percent of the funding for the "bridges to nowhere" in the recent transportation appropriations. Meanwhile, the new report suggests Darfur is "losing control because of a weak mandate, poor equipment, and woefully inadequate troop numbers."