Scholars Urge Holder to Uphold Law

For those of you who don’t get David Swanson’s e-mails….

Nationally Renowned Scholars, Writers, Artists, and Advocates Urge Attorney General Holder to Uphold the Rule of Law and Appoint Prosecutor to Investigate Allegations of Torture and Other Serious Crimes

SALT LAKE CITY – Several prominent Americans, including authors, artists, legal experts, and renowned voices of conscience, today transmitted a letter to U.S. Attorney General Eric Holder urging the appointment of a prosecutor to investigate allegations of torture and other violations of human rights and civil liberties committed by former government officials and others. The signatories to the letter are:

   *    Daniel Ellsberg (former Marine commander, former assistant to Secretary of Defense Robert McNamara, defense specialist, responsible for disclosure of the Pentagon Papers)

   *    Bruce Fein (specialist in constitutional and international law, former Associate Deputy US Attorney General (during Reagan administration))

   *    Andy Jacobs (represented Indiana’s 10th and 11th Congressional Districts, 1965-1973 and 1975-1997, Korean War veteran)

   *    Paul Rogat Loeb (author Soul of a Citizen – Living With Conviction in a Cynical Time)

   *    Graham Nash (singer-songwriter (The Hollies; Crosby, Stills, Nash & Young))

   *    Terry Tempest Williams (naturalist, author of several books, including Refuge: An Unnatural History of Family and Place; An Unspoken Hunger; The Open Space of Democracy)

   *    Bill McKibben (environmentalist, international organizer, founder of Step It Up, author of several books, including The End of Nature; Deep Economy: the Wealth of Communities and the Durable Future)

   *    John Nichols (Washington correspondent for The Nation, author of The Genius of Impeachment: The Founder’s Cure for Royalism)

   *    Robert Feuer (attorney, 2008 candidate for Massachusetts First Congressional District)

   *    Jeremy Pikser (screenwriter, co-wrote Bulworth; wrote The Lemon Sisters and War, Inc.)

   *    Rocky Anderson (lawyer, civil and human rights specialist, former Salt Lake City Mayor; Founder and Executive Director, High Road for Human Rights)

   *    Mimi Kennedy (author, activist, and television and screen actress, co-star, “Dharma & Greg,” recently starring in In the Loop)

   *    Naomi Wolf (author of seven books, including The Beauty Myth, The End of America, and Give Me Liberty)

   *    Robert C. Fellmeth (Price Professor of Public Interest Law, University of San Diego Law School)

   *    David Swanson (activist, author, Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union)  

   *    Ralph Nader (lawyer, consumer advocate, author of several books, including Unsafe at Any Speed, The Menace of Atomic Energy, Who’s Poisoning America?, Good Works, No Contest, The Good Fight)

High Road for Human Rights Education Project (www.highroadforhumanrights.org) is leading this effort to persuade the Attorney General to uphold the rule of law and longstanding traditions of human dignity and adherence to the values underlying our Constitution. According to Gallup and ABC News/Washington Post polls conducted in April, a majority of Americans favor a federal investigation into the treatment of detainees by government personnel.

“You can convey the message that we have become a nation where powerful, or formerly powerful, people can repeatedly violate the law (and call upon others to violate the law) with impunity,” the letter reads in part. “Or you can convey that in this great country Lady Justice is still blindfolded and that the scales of justice are indeed balanced – that the law applies equally to all, without bias for or against any, regardless of wealth, power, or prestige. . . .Your principled application of the law . . . will be viewed for many generations as a crucial point in the history of a nation truly committed to equal justice, high moral principle, and the rule of law.”  

The complete text of the letter is attached to this release.

The letter calls on the Attorney General to appoint a prosecutor to commence an inquiry into whether government officials and personnel violated the law in connection with aggressive war, warrantless wiretapping, torture, extraordinary rendition, the illegal arrest and indefinite detention of US citizens without due process, the issuance of signing statements purporting to overrule laws passed by Congress, and the failure to inform members of Congress of intelligence programs or covert actions.  

“We urge the Attorney General to affirm the crucial importance of upholding the rule of law, irrespective of political considerations, and appoint a prosecutor to investigate criminal activity committed in recent years by officials, other personnel, and contractors associated with the previous administration,” said High Road’s Executive Director, Rocky Anderson. “Investigating and, if appropriate, prosecuting perpetrators of these serious crimes is a crucial step to preventing the recurrence of this dark, demoralizing chapter in our nation’s history, which has done so much to damage our national security and reputation abroad.”

Contact:

Rocky Anderson  

(801) 364-3560 ext. 117

[email protected]

www.highroadforhumanrights.org

# # #

      The Letter

# # #

     July 29, 2009

     Attorney General Eric H. Holder, Jr.

      The Department of Justice

      Washington, D.C.

Dear Attorney General Holder:

We applaud your outspoken commitment to a “post-partisan” approach to criminal justice that is beyond politics and ideology.  Your record, including many of your pronouncements, has made it clear you are dedicated to pursuing justice with integrity.  From all appearances, you believe strongly in our Constitution and the rule of law.

You are at a challenging fork in the road, where you can choose either to (1) ignore evidence of egregious criminal wrongdoing by Bush administration officials and people working in concert with them, as urged by some in the White House,  or (2) take a principled approach, regardless of political pressures or ideological concerns, in applying the law without bias and without favor toward those who have violated criminal laws.  

No less than the rule of law is at stake.  Your decisions and actions in this regard will be of historic importance.  

You can convey the message that we have become a nation where powerful, or formerly powerful, people can repeatedly violate the law (and call upon others to violate the law) with impunity and escape any accountability because the present administration has an interest in avoiding the partisan attacks inherent in any investigation and prosecution of former government officials.  Or you can convey that in this great country Lady Justice is still blindfolded and that the scales of justice are, indeed, balanced – that the law applies equally to all, without bias for or against any, regardless of wealth, power, or prestige.

The violations of law by Bush administration officials and others who acted in concert with them  have been justified by some, including Dick Cheney and John Yoo, on the basis that the President is above the law because he is the head of the so-called “unitary” executive branch of government.  According to these proponents of limitless executive power, the President alone decides the range of his power and the application of laws passed by Congress and treaties ratified by the United States Senate.  The result of that approach would be that the rule of law is no longer extant.

Of course, that view of executive power is completely at odds with our Constitution and the system of checks and balances that has served our republic so well since its founding.  Similarly, the failure to repudiate that view and to hold accountable those who have violated the law would be subversive to our constitutional form of government, our system of checks and balances, and the rule of law.  Just as the rule of law prohibits powerful people from escaping the reach of our laws, so too does it forbid people in positions of power, such as the President or the Attorney General, from deciding, for the sake of political convenience, that the law will not be applied to some who have violated it.

The principled way of moving forward as a nation that adheres to the rule of law is for you to appoint a prosecutor to investigate whether government officials or others violated the law in connection with aggressive war, warrantless wiretapping, torture, extraordinary rendition, the illegal arrest and indefinite detention of US citizens without due process, the issuance of signing statements purporting to overrule laws passed by Congress, the creation of an assassination program, and the failure to inform members of Congress of intelligence programs or covert actions.  Then, if a determination is made that violations of the law occurred, appropriate legal action should be taken.

Your decisions and actions will define the course of our nation’s principled commitment to our Constitution, domestic law, and legal obligations under treaties, which, along with the Constitution and laws passed by Congress, are the supreme law of the land, pursuant to Article VI, Section 2 of the Constitution.  

One’s commitment to principle is demonstrated most clearly under difficult circumstances.  We recognize that some people would forsake the rule of law because of a desire to achieve other political objectives and to avoid distractions and partisan divisions.  However, an unrelenting commitment to the law should never be demeaned as a “distraction” or as a partisan matter.  Your principled application of the law, particularly under present circumstances, will be viewed for many generations as a crucial point in the history of a nation truly committed to equal justice, high moral principle, and the rule of law.

      Respectfully,

*    Daniel Ellsberg

*    Bruce Fein

*    Andy Jacobs

*    Paul Rogat Loeb

*    Graham Nash

*    Terry Tempest Williams

*    Bill McKibben

*    John Nichols

*    Robert Feuer

*    Jeremy Pikser

*    Rocky Anderson

*    Mimi Kennedy

*    Naomi Wolf (

*    Robert C. Fellmeth

*    David Swanson  

*    Ralph Nader

_____

Footnotes

_______

1.  The rule of law, as a safeguard against arbitrary governance, was provided for in the Magna Carta in 1215, which made it clear that King John, who previously governed any way he saw fit, was constrained by rules that applied to everyone alike.  Our Constitution, the bedrock of our system of government, is founded on the principle of the rule of law.  It spells out the powers of each branch of government and limits what government and government officials can do.  

For our constitutional form of government to survive, and for the rule of law to prevail over the rule of dictatorship, each branch of government must be constrained by the rule of law, and by the parameters of its constitutionally designated powers.  Each branch of government must jealously protect against the other branches exceeding and abusing their power.  Members of the Bush administration endeavored in a systematic and dangerous fashion to extend the powers of the president in abusive, dictatorial fashion, completely at odds with our Constitution and the rule of law.  Members of the Bush administration claimed extraordinary, unprecedented executive powers that they believed exempted the president from laws passed by Congress, from treaties to which the United States has bound itself, and from protections of our individual freedoms set forth in the Constitution.  They pursued such authoritarian power, completely at odds with the rule of law, by asserting what they called a “unitary executive” power and a supposed “inherent power” that allows the president to make up the rules, even when contrary to what Congress and our Constitution have required.

2.  President Obama has made it clear that he may qualify his allegiance to the rule of law because of his desire to “move forward,” even perhaps by not applying the law to war criminals and others who broke the law during their service in the Bush administration.  For instance, he stated as follows during an interview on January 11, 2009:

   President Obama: “We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions, and so forth. And obviously we’re going to be looking at past practices and I don’t believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering.”

   George Stephanopoulos: “So, no 9/11 commission with independent subpoena power?”

   Obama: “We have not made final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn’t mean that if somebody has blatantly broken the law, that they are above the law. But my orientation’s going to be to move forward.”

   ABC News, This Week With George Stephanopoulos, January 11, 2009.

By the assertion of the “state secrets” doctrine, President Obama’s administration, through the Department of Justice under your leadership, has continued the Bush administration’s efforts to emasculate the courts as a branch of government intended by the Constitution to provide a vital check on abuses of executive power.  See, e.g., Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 992 (9th Cir. 2009).  The Obama administration has also continued to threaten withholding the sharing of intelligence with the British government if the U.K. High Court discloses information about the torture of a detainee held by the United States.  Commenting about the implications of the Obama administration’s threat on the rule of law, the U.K. High Court stated as follows:  

   Moreover, in the light of the long history of the common law and democracy which we share with the United States, it was, in our view difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported as to how a detainee was treated by them and which made no disclosure of sensitive intelligence matters.  Indeed we did not consider that a democracy governed by the rule of law would expect a court in another democracy to suppress a summary of the evidence contained in reports by its own officials or officials of another State where the evidence was relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.

Mohamed v. Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 152 (Admin), para. 69 (emphasis added).

3.  President Obama clearly contemplates that you will apply the law in a principled, unbiased manner, without regard to his political interests in ignoring past violations of the law under the guise of “looking forward.”  As he stated:

   I think my general view when it comes to my attorney general is he is the people’s lawyer. Eric Holder’s been nominated. His job is to uphold the Constitution and look after the interests of the American people, not to be swayed by my day-to-day politics.

ABC News, This Week With George Stephanopoulos, January 11, 2009.

4.  Among those violations of law, both civil and criminal, are the following:  

   *    warrantless wiretapping of Americans’ communications, in violation of the Fourth Amendment of the US Constitution and the Foreign Intelligence Surveillance Act (each violation is a felony, punishable by a fine of $10,000 and up to five years imprisonment);

   *    kidnapping and torture (and perhaps killing) of people in violation of the United Nations Charter; the Nuremberg Covenant; Geneva Conventions; the Convention Against Torture; the Covenant on Civil and Political Rights; the War Crimes Act; and the Torture Statute (18 USC  § 2340) (each violation of the Torture Statute subjects the perpetrator to a fine or imprisonment for up to twenty years or, in the case death caused by torture, the death penalty; a government official conspiring to abuse a prisoner is subject to the same penalties as the person who inflicts the abuse);

   *    issuance of “signing statements” and orders to ignore legislation passed by Congress, in violation of the obligation of the president to “take care that the laws be faithfully executed” under Article II, Section 3 of the Constitution;

   *    the failure to disclose to congressional intelligence committees the NSA warrantless wiretapping program ordered by President Bush, in violation of the National Security Act of 1947, Sec. 501 [50 U.S.C. 413] and Sec. 502 [50 U.S.C. 413a] (a) (1); 1991 Intelligence Authorization Act;

   *    the failure to disclose to congressional intelligence committees waterboarding and other abusive interrogation methods used on detainees, in violation of the National Security Act of 1947; 1991 Intelligence Authorization Act;

   *    the failure to disclose to congressional intelligence committees or the “Gang of Eight” the CIA assassination program, in violation of the National Security Act of 1947; 1991 Intelligence Authorization Act;

   *    the illegal arrest and indefinite detention, without any due process (including no charges, no trial, no allowance of the right to habeas corpus, and denial of legal counsel), of US citizens, in violation of their civil and constitutional rights

   *    the illegal and unconstitutional killing and maiming of hundreds of thousands of people during the course of a war of aggression prohibited by the United Nations Charter, the Kellogg-Briand Pact, and the Nuremberg Covenant, following a fraudulent campaign of misinformation to the United States Congress and the American people.

Thanks David et al!