O B A M A W A T C H The Shadow of George W. Bush

Introduction

From 2001 to 2009, the Bush Administration staged a relentless attack on the Constitution and the rule of law in the United States. President Bush illegally diverted funds from fighting the Taliban in Afghanistan to prepare for an attack on Iraq, and lied to Congress regarding the rationale for invading that country. As a result of those lies, nearly 5,000 American soldiers died in a country that had not attacked us and posed no threat. Bush later attacked freedom of peaceful assembly by ordering the FBI to spy on pacifists who demonstrated against his unnecessary Iraq war. He illegally spied on Americans without search warrants and denied prisoners the right to fair trials. Bush unconstitutionally repudiated the Anti-Ballistic Missile treaty and the Geneva Conventions. He illegally gave Americans' tax dollars to religious charities and eroded the right to bear arms. Members of his administration illegally revealed the identity of an undercover CIA officer for partisan gain, and when one of them was convicted of obstruction of justice, Bush commuted his sentence.

Bush committed the same crimes that Richard Nixon did -- and many far worse. However, the Republican Party had a Congressional majority from 2001 to 2006, and Bush's party was overwhelmingly loyal to him. When the Democrats gained control of Congress in 2007, the new majority party also refused to investigate Bush's crimes -- an investigation that would have led to Bush's impeachment. In one case -- the so-called Protect America Act of 2007 -- Congress retroactively (and unconstitutionally) decriminalized Bush's program of spying on Americans at home.

This set a terrifying precedent. As Congress refused to follow the Constitution and impeach a President who used the power of his office to commit crimes, future Presidents may assume they, too, are above the law. The overwhelming majority of documented crimes committed by Bush and his subordinates were never prosecuted. Due to Congress' failure -- and Attorney General Eric Holder's failure to investigate the Bush Administration -- future Presidents who wish to commit Bush-style crimes can safely assume they will never be held accountable.

The First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Bush started the government's persecution of peaceful antiwar protests by ordering the FBI's counter-terrorism department to infiltrate antiwar groups. Neither Bush nor the FBI could tell the difference between pacifists and terrorists. In a time of record-shattering deficits, this is an absurd waste of taxpayer dollars.

Even though George W. Bush has left office, the Federal Government is still violating pacifists' Constitutional rights. In September 2010, the FBI raided the homes of antiwar protesters in Minneapolis and Chicago. (Sources: Chicago Breaking News; The Chicago Tribune; The New York Times) The FBI confiscated "evidence" such as artwork, poetry, and pictures of Martin Luther King, Jr.

President Barack Obama is not personally responsible for this, but it's happening on his watch.

Attorney General Eric Holder -- who oversees the FBI -- must immediately case all FBI harassment of peaceful antiwar groups. The FBI's counter-terrorism department must focus on stopping terrorists.

In 2011, former CIA officer Jeffrey Sterling was arrested for espionage -- for talking to a New York Times reporter. According to The Nation, the Justice Department had no idea what Sterling and the reporter talked about, but after a four year prosecution managed to get Sterling sentenced to three and a half years in prison. As Reporters Without Borders points out, "At the opposite end of the spectrum, high level officials like retired general and former C.I.A. director David Petraeus have received a simple slap on the wrist. Petraeus plead guilty to revealing classified information to his biographer Paula Broadwell, who was also his mistress, in April of this year. ...He also made false statements to F.B.I. agents that he did not leak said information. Yet the [Justice Department] requested he receive probation instead of prison time."

RootsAction has started a petition asking President Obama to pardon Sterling.

In 2012, the Justice Department acquired the phone records of two Associated Press reporters -- without a search warrant. AP President Gary Pruitt wrote: "These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP's newsgathering operations and disclose information about AP's activities and operations that the government has no conceivable right to know." If reporters can't talk with their sources -- and the sources can't reveal information to reporters without fear of prosecution -- the press cannot keep the public informed on how the government is spending our tax dollars.

Under the Fourth Amendment, it's illegal for the government to seize someone's phone records without a search warrant. Whoever at the Justice Department is responsible for this broke the law and must be prosecuted.

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

According to TSA regulations, anyone going through airport security may be chosen to undergo the new procedures. Any individual so targeted must either walk into the machine and wait while it constructs a naked picture of them, or allow the airline personnel to perform a pat-down or strip-search that requires the agent to touch every part of their body. (Sources: Mother Jones Magazine; the American Civil Liberties Union.) It is up to the TSA officers on the scene to determine which passengers must choose between the naked body scan or the strip search, and which may use normal metal detectors.

The Intercept obtained a copy of the criteria the TSA uses to spot terrorists. The list includes yawning, clearing one's throat, staring, whistling, rubbing one's hands, and complaining about the TSA. Said criteria would be funny if the issues involved weren't so serious -- they apply to most travelers.

As of July 2013, the naked body scanners are gone -- but the TSA's abuses of power continue. In April 2011, former Miss USA Susie Castillo was subjected to a pat-down. She later wrote: "To say that I felt invaded is an understatement... They're making me choose to either get molested -- because that's what I feel like -- or go through this machine that's completely unhealthy and dangerous... I do feel violated." The MSNBC news story goes into far more graphic detail. (See also: rawstory.com)

In June 2011, the TSA gave a full-body pat-down to a 95-year-old cancer patient and forced her to remove her adult diaper. Her daughter burst into tears during the incident, and the TSA officials responded by giving her a full-body pat-down as well. The officers then escorted the elderly mother to her gate while her daughter was still undergoing the pat-down. The TSA later told CNN that the officers did exactly the right thing. (Sources: CNN; AOL News.)

Nicholas Monahan reported that TSA officials forced his pregnant wife to undress in full view of everyone in the security area. When he protested, he was arrested. (Source: lewrockwell.com) Adding insult to injury, the arresting officer told him the only reason he would protest this treatment is if he were mentally ill and had forgotten to take his medication.

This treatment from govermment officials is eerily similar to the way the Soviet Union incarcerated political prisoners in mental hospitals. According to the communist propaganda, the Soviet Union was the richest, most free nation in the world -- therefore, anyone who criticized the government must be crazy.

Journalist Amy Alkon underwent a full-body search in April 2011. The term "pat down" is insufficent to describe what she went through, and the details are too graphic to recount here.

Another person the TSA targeted for a full-body pat-down was Star Trek actor Wil Wheaton. Definitely a possible terrorist there. "I.. believe that when I choose to fly," he wrote, "I should not be forced to choose between submitting myself to a virtually-nude scan (and exposing myself to uncertain health risks due to radiation exposure), or enduring an aggressive, invasive patdown where a stranger puts his hands in my pants, and makes any contact at all with my genitals. When I left the security screening yesterday, I didn't feel safe. I felt violated, humiliated, assaulted, and angry... I was so furious and upset, my hands shook for quite some time after the ordeal was over. I felt sick to my stomach for hours." He went on: "...Most TSA officers are doing the best they can in a job that requires them to interact with people who automatically dislike them and what they represent. It isn't the individual officer who is the problem; it's the policies he or she is instructed to carry out that need to change."

In July 2011, the TSA targeted a fourteen-year-old girl for the naked body-imaging or full-body pat-down. When her mother protested, the mother was arrested. (Source: AOL News.) Through her lawyer, the mother told reporters that the TSA officials threatened to have her daughter taken from her and placed in foster care. (Source: The Tennessean.)

In January 2012, TSA officials targeted a United States Senator.

A target of multiple TSA screenings was Jesse Ventura, the former professional wrestler who served one term as governor of Minnesota. Due to surgery, Ventura has metal pins in his hip and sets off security alarms every time he flies. Ventura wrote that he'd been "exposed... to humiliation and degradation through unwanted touching, gripping and rubbing of... intimate areas." He later told CNN: "I won't be treated like a criminal anymore, so the only alternative is not to fly." (Source: Huffington Post)

This individual was detained for hours because he'd spilled cleanser on his clothes. In his blog he makes a strong case that he was detained because he's a Hindu and tried to board a plane on a Muslim holiday. (The TSA officials didn't know the difference between Hinduism and Islam, two religions with nothing in common.)

The Huffington Post reports that the TSA has a serious problem with individual agents walking off with travelers' iPads. According to ABC News, this is just the tip of the iceberg. Between 2003 and 2012, nearly 400 TSA agents were fired for stealing passengers' cash and other possessions.

In 2015, the Department of Homeland Security sent agents undercover to investigate the security at American airports. The DHS agents made 70 attempts to smuggle fake weapons or explosives past the TSA, and succeeded 67 times.

Later in 2015, a TSA official groped popular music singer Morrissey during a pat-down. A few months later, TSA officals patted down a ten-year-old girl.

CNN reporter Angela Rye took a video of her experience. As a frequent flyer, she has TSA Precheck and CLEAR status. Nevertheless, she was singled out and subjected to an invasive search in deatails too graphic to describe here. When she protested, the TSA called police to observe her "screening" -- and the officer was horrified when he saw the way she'd been treated.

If it weren't for the cases detailed above, the TSA might be considered laughingstocks. One family reported going through airport security, arriving at their gate, then purchasing coffee. The TSA saw them do this and confiscated the coffee so they could test it for explosives.

Security expert Gavin de Becker's 2002 book Fear Less: Real Truth About Risk, Safety, and Security in a Time of Terrorism details a number of common sense recommendations that would improve airline safety and security. More than fifteen years after the worst terrorist attacks in history, few of these measures have been implemented. Instead, the TSA has employed disgusting and unethical methods that don't work.

Whatever you do, don't talk to TSA officials at the airport about filing a complaint. When Roger Vanderklok did, he was arrested and spent the next 20 hours in a cell. He was never given a phone call, and all his family knew is that he'd disappeared without a trace on the way to the airport.

If you feel you've been wronged, talked to a lawyer -- once you're safely away from the airport. According to CNN, complaining about TSA procedures when you're at the airport will make them more likely to target you. (If you're concerned about your rights while traveling by airline, the ACLU has written a guide. Contact them if you think your rights have been violated.)

Other websites that detail horrifying TSA procedures include RawJustice and TheTruthWins. A website much larger and more revealing than this one is found at TSA News Blog.

Not all cases of the government strip-searching innocent Americans at airports involve the TSA. On September 11, 2011, Shoshana Hebshi -- a young Jewish mother from Ohio -- was unlucky enough to be seated next to two Indian men on a domestic flight. When the plane landed, she and the two men were arrested -- because the two men had been waiting in the line for the bathroom at the same time. She didn't know either of her fellow-passengers, nor did they know each other. Nevertheless, she was escorted off the plane in handcuffs, strip-searched, and thrown in a cell. Four hours later, she was fingerprinted and released -- after the authorities determined it had been a false alarm. Although the FBI later apologized to Ms. Hebshi, the police told the Associated Press that they'd treated "everyone involved with respect and dignity." (Source: Huffington Post)

Hebshi sued for racial profiling, and in 2015 the Federal government settled the case for $40,000.

When the government settles a claim, they compensate the wronged party using our tax dollars -- and the TSA still hasn't learned their lesson. In 2016, college student Khairuldeen Makhzoomi was kicked off his airplane in a blatant case of racial profiling -- for talking on the phone to his uncle in Arabic. Once he'd been taken off the plane, he was interviewed by police and FBI, and searched -- with the officer putting his hands under Makhzoomi's clothes -- in plain view of everyone in the terminal. Ironically, Makhzoomi is an Iraq-born peace activist who was granted asylum in the United States in 2010.

The Mother Jones article details six similar cases of racial profiling that happened in the first four months of 2016.

In late 2015, an American citizen in his twenties -- who has a beard and practices the Sikh religion, historically a rival of Islam -- was ordered off his Toronto-New York because the pilot "felt uneasy an uncomfortable with their presence." (Source: CNN.)

According to the Washington Post, in May 2016 a dark-complexioned man was escorted off his flight from Philadelphia to Syracuse because the woman sitting next to him complained he was writing something in code. His interrogators soon learned that he was an Italian mathematician, and the "code" was calculus.

As Robert Parry reports in Consortium News, in 2001, the Bush Administration received scores of warnings that al-Qaeda was planning a major terrorist attack -- and dismissed these warnings as insignificant. After the attacks of September 11, 2001, the government policy changed from being too permissive to being overcautious. However, strip-searching an innocent American woman on a Denver-Detroit flight because two dark-complexioned men were seated in her row is going too far. When American law enforcement officials harass innocent people, it destroys public trust in the people who are supposed to be protecting us. This is exactly what America's enemies want.

According to the New York Times, the FBI is seeking more power to intercept communications without search warrants on websites such as Facebook and Skype. This would be done by forcing the websites to install "back doors" allowing the government to monitor private communications.

The problem is, after the Greek government installed similar "back doors" on Greek websites, criminal hackers took advantage of these "back doors" to spy on the government -- including the Prime Minister's cell phone conversations. (Source: Sydney Morning Herald)

Spying on Americans without search warrants is not the answer. President Obama was not personally responsible for this, but Attorney General Eric Holder may be. The FBI must use common sense to protect us from terrorists -- not invade privacy without search warrants or install "back doors" that leave the public vulnerable to criminals.

In 2008, the Electronic Fronter Foundation reported a Homeland Security Department program to peruse or copy any information on a traveler's laptop, smart phone or tablet. Any traveler crossing an American border can be targeted to have their private information read or copied, with no search warrant necessary. This creates considerable risk for reporters traveling with confidential sources' information, doctors and therapists traveling with patients' confidential information, attorneys traveling with information they thought was protected by attorney-client privilege, and so on. Court records indicated that tens of thousands of innocent American citizens were searched. On December 31, 2014, the ACLU reported that a federal court somehow upheld the legality of this program. (The plaintiff in the case, a photographer, reported that customs officials on the Canadian border had read his letters to his girlfriend out loud to each other.) Travelers, leave your laptops at home.

In 2013, it was widely reported that the National Security Agency (NSA) has routinely wiretapped the telephone conversations of Americans without obtaining a search warrant first, as they are required to do by law. The NSA has also illegally gathered information on innocent Americans' emails and online social networks. Unlike the FBI, who wants to intercept electronic communications, the NSA has already done it -- unconstitutionally. (Source: New York Times) More on this below.

In 2014, the ACLU filed a lawsuit against the FBI counter-terrorism department -- for investigating and tracking innocent American photographers taking pictures of public buildings. The FBI claims this is a matter of national security -- even though sending teams of agents to follow professional photographers across the country and interview their friends and family has never led to the capture of any terrorists or stopped any terrorist attacks.

After the Watergate scandal, Congress passed the Foreign Intelligence Surveillance Act. This law set up a special court to issue secret warrants allowing the National Security Agency to bug the telephones of people the court decided were threats to national security. The court routinely issued warrants retroactively, approving a wiretap already in progress. The purpose of this court was to allow the government to track national security threats while preventing future abuses of power. (Richard Nixon bugged the phones of people who criticized him and claimed it was a matter of national security.)

In 2005, the news broke that George W. Bush had issued a secret executive order commanding the NSA to ignore the FISA law and wiretap anyone he didn't like, without a search warrant. These were the same crimes that brought down the Nixon Administration. In 1974, Congress held hearings to determine to what extent the President and his subordinates had broken the law. In 2007, Congress did the opposite -- passing the so-called Protect America Act. This law essentially gutted the FISA act, legalizing wiretaps without warrants. (Source: Wikipedia)

Congress had no right or authority to pass a law that overrode the Fourth Amendment. When Congress passed the Protect America Act of 2007, it gave the President authority to disregard individual Americans' civil rights. When Congress codifies legal travesties like this one, the only way to stop the President from abusing this power is for Congress to repeal the law -- or for a judge to strike down the law as unconstitutional.

In March 2010, a judge determined that Bush's warrantless wiretaps had indeed been unconstitutional, and the government was liable for damages. (Source: The New York Times) Even though, when running for President, then-Senator Obama pledged to end this program, Attorney General Holder had spent the last year defending Bush's illegal wiretaps in court. The Justice Department claimed that wiretapping domestic charities without search warrants was necessary for national security.

In 2013, the Guardian reported that the NSA has been collecting the phone records of millions of Americans -- again, with no search warrants and no reason to suspect any wrongdoing or connection to terrorism. Although the NSA apparently has not been listening to anyone's calls, they have collected all the information regarding who called whom and when. In a telling article, Kurt Opsahl wrote on the Electronic Frontier Foundation website that, even if the NSA wasn't listening to the call itself, this information is an enormous invasion of privacy. This was confirmed by a Stanford University study that proved this information allows the government to find out everything about your interests and relationships.

After the Guardian broke the news, then-NSA Deputy Director John Inglis told Congress that the NSA doesn't need a warrant to search Americans' phone records. In other words, the National Security Agency doesn't think it needs to obey the Constitution.

Does anyone see a problem here?

The law does not work that way. If a government agency wants to wiretap someone, the Constitution requires them to get a search warrant -- either from a normal court or the secret FISA court.

According to the International Business Times, the NSA has listened in on thousands of domestic American phone calls in addition to collecting information about the calls. The NSA claims they made a clerical error and thought they were listening to phone calls in another country. There is no question that listening to these calls without search warrants was illegal.

According to the BBC, during the same period, the NSA illegally collected about 56,000 private emails. The NSA claims this was an accident: they were looking for terrorists' email. However, they couldn't figure out who was a terrorist and who wasn't -- so they collected everyone's. According to the New York Times, anyone who sent an email that mentioned a figure under surveillance would have their emails tapped.

For instance: Ayman al-Zawahiri is Osama Bin Laden's successor -- the current head of the al-Qaeda terrorist group. That makes him a criminal and a murderer. If I write an essay about politics in the Middle East, casually mention that I want al-Zawahiri brought to justice, and email that essay to a friend in the UK, the NSA would tag the email and wiretap me. This is illegal without a search warrant.

The Telegraph reports that NSA employees also illegally wiretapped some other dangerous individuals: their lovers. Men working at the NSA used its resources to spy on their wives; girlfriends spied on their boyfriends. Although the NSA claims this happened only a dozen times over the last decade, the NSA officers had come to refer to the practice as "Love-int." This is also illegal.

If I park in a no parking zone I will get a ticket and have to pay a fine. It doesn't matter if it was an innocent mistake -- I still have to obey the letter of the law. The same privacy laws apply to people who work at the NSA as apply to everyone else. Whoever initiated these wiretaps -- and whoever listened to the calls -- broke the law and must be prosecuted.

Other illegal acts by the National Security Agency that came to light in 2013-2014 include:

• Breaking into data centers at Yahoo! and Google (this is illegal without a search warrant)
• Tracking cell phone locations worldwide (this is also illegal without a search warrant)
• Writing software that can hack into any iPhone at any time
• Spying on members of Congress (illegal without a search warrant)
• Spying on the leaders of allied countries (this is illegal in those countries)
• Reading the personal data collected by apps on smartphones
• Looking for nude photos on data sweeps and sharing them with coworkers
• After someone orders a new laptop, the NSA intercepts that laptop en route, installs spyware on it, then sends it on to the person who ordered it -- all without a search warrant. Other techniques include installing a wireless transmitter inside the computer - so it transmits personal information to the NSA even if the end user does not connect the computer to the internet.
• Finally: After gathering data on innocent Americans without search warrants, the NSA has illegally shared that data with the FBI, CIA, DEA, DIA and other government agencies, also without search warrants. So, if the FBI wants to spy on someone without cause and a judge won't give them a search warrant, all they have to do is ask the NSA. Chances are the NSA has already obtained the information illegally.

In 2014, Bloomberg News, The Guardian, and other newspapers reported that the NSA had exploited the so-called heartbleed bug that compromises secure web traffic for two years and didn't tell anyone they'd discovered it, leaving the door open for identity thieves to exploit it as well.

As technology website Gizmodo points out, all this surveillance does not prevent terrorist attacks.

Wired Magazine points out that the NSA watching everyone's every online move will destroy e-commerce. No one will use an online service if they know the government -- and any criminal with the ability to do so -- is reading their email.

President Obama used to teach Constitutional law. It is the responsibility of the President and the Attorney General to uphold the law, not circumvent it. It is unconstitutional for the President or the Attorney General to cover up crimes committed by their subordinates or by the previous administration. When the NSA wants to wiretap someone, all they have to do is get a search warrant first. Even if the Attorney General didn't order these illegal wiretaps, the Justice Department must prosecute those who ordered them and those who carried them out.

Congress must repeal the so-called PATRIOT Act and the so-called Protect America Act. Congress must also reinstate the original FISA law's privacy protections. There are currently several bills before Congress that would end the NSA's practice of spying on Americans. The website Stop Mass Spying petitions Congress to do so.

At this writing, no one who spied on innocent Americans without a search warrant -- or ordered subordinates to do so -- has been charged with a crime. However, Edward Snowden -- the 29-year-old NSA contractor who told the press about the agency's illegal activities -- has been charged with theft and espionage.

In President Obama's January 17, 2014 speech on NSA reform, he said:

"...Nothing in that initial review and nothing that I have learned since indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens."

That isn't true. "Love-int" -- the code word for NSA agents using their government connections to spy on their spouses -- may have only occurred a limited number of times, but it did happen. [Source: The Washington Post] This was widely reported, and President Obama must be aware of it.

"...The men and women of the [NSA] consistently follow protocols designed to protect the privacy of ordinary people. They're not abusing authorities in order to listen to your private phone calls or read your emails."

Unless you're married to one of them, of course.

"I'm not going to dwell on Mr. Snowden's actions or his motivations. [But:] If any individual who objects to government policy can take it into their own hands to publicly disclose classified information, then we will not be able to keep our people safe, or conduct foreign policy."

Many of President Obama's critics routinely make up lies about him, making absurd claims that he's a socialist, a Muslim, or wasn't born in the United States. Obama's critique of Snowden is equally false.

Snowden did not object to government policy or take the law into his own hands. For instance, Snowden did not disagree with President Roosevelt's handling of World War II and decide to disclose information about D-Day to the Nazis. Instead, Snowden revealed a culture of standard operating procedures at the NSA that disregarded the law and the Constitution.

Over 160,000 people have signed a petition asking President Obama to pardon Snowden. Obama has refused.

Although Obama announced a number of necessary reforms to American intelligence-gathering -- such as ending wiretaps of foreign leaders -- he did not address the real problem. Regardless of how the NSA gathers intelligence going forward, the NSA broke the law every time they engaged in surveillance of innocent Americans' private telephone calls or emails without a search warrant. Those who broke the law are criminals. If I break the law, it doesn't matter if I didn't know I was breaking it at the time; it doesn't matter if my boss told me to do it. I still have to face the legal consequences of my actions.

Is President Obama responsible for the NSA's illegal surveillance? Although President Bush started the program and justified it using two laws -- the so-called PATRIOT Act and the so-called Protect America Act -- the NSA's illegal wiretaps go far beyond what those laws authorized. Government officials who break the law shouldn't be treated any differently from anyone else who breaks the law just because they work for the government. They must be indicted and given fair trials, where they will be exonerated or convicted. Criminals have no place continuing to work in government.

Update: In 2015, a federal judge ruled that the NSA's collection of innocent Americans' phone records is illegal. In June of that year, Congress passed the USA Freedom Act. In theory, these two actions banned the NSA's collection of information about private phone calls without getting a search warrant.

Also, James Clapper, the current National Intelligence Director, has been accused of lying to Congress about whether the NSA was spying on American citizens. Although lying to Congress is a felony, Clapper's testimony hasn't been investigated, and he is still serving as National Intelligence Director. (Source: Slate Magazine.) Congress must investigate Director Clapper. If he lied to Congress, President Obama must fire him. If Obama does not act, Clapper must be impeached and removed from office.

The NSA has not been the only government department spying on innocent Americans without search warrants. According to Reuters, the Justice Department (!) has been gathering data on Americans using fake cellular towers installed on airplanes. These "stingray" devices fool mobile phones into thinking they're legitimate cell towers, causing all the phones in the area to route all telephone calls and data (including emails, text messages, web traffic, and so on) through the stingray. This hijacks not only the cellular activity of whoever the FBI is spying on, but everyone in the area. The FBI admitted this six months later. According to Ars Technica, "the FBI would rather have a criminal case be dropped to protect secrecy surrounding the stingray."

Sign the Petition to President Obama asking him to dismantle the surveillance state.

The Fifth Amendment: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

After the terrorist attacks of September 11th, 2001, then-Attorney General John Ashcroft ordered the Justice Department to round up dozens of Arab-Americans and Muslim Americans. He justified this with a misuse of the Material Witness Statute.

The Material Witness Statute is a law meant to aid in the prosecution of organized crime. Say a witness is called to testify at a mafia boss' trial. The boss' associates then threaten to kill the witness should he testify, so the witness decides to flee the country rather than give evidence. The Material Witness Statute is designed to take such witnesses into protective custody so they do not become flight risks.

The Material Witness Statute was never intended to be used as a tool to round up American citizens based on their ethnicity or religion. Yet, while the United States government helped rich Saudi visitors to flee the nation after the 2001 terrorist attacks, it also detained dozens of American citizens who had no connection to terrorism. (Source: Snopes.)

One of these American citizens was Abdullah al-Kidd. According to The Atlantic Magazine, "al-Kidd is an American citizen who converted to Islam. He was arrested under a material-witness statute in March 2003 at Dulles International Airport, detained in high-security cells for a little over two weeks, and subjected to multiple strip searches. After his release from custody on court order, he was placed on strictly supervised probation for some fifteen months. He was never charged with a crime or called to appear as a material witness, but by the time he was freed, his marriage had broken up, and he'd lost his job."

According to National Public Radio, al-Kidd was held in maximum-security prisons and housed with convicted murderers. At times he was held in cells with round-the-clock bright lights, and was the only person in the prison denied clothing.

Eventually, al-Kidd sued John Ashcroft for violating his civil rights, and in 2009 a court held that his case could go forward. In order to protect Ashcroft, Attorney General Holder's Justice Department appealed the ruling, arguing that Ashcroft cannot be personally sued for the civil rights violations he ordered when he was Attorney General. (Source: Associated Press.) In May 2010, Holder won. Al-Kidd's lawsuit against John Ashcroft was dismissed by the Supreme Court. (Source: USA Today.)

Human rights violations that took place under his predecessor are clearly not Holder's fault. However, Holder is responsible for what his subordinates do in the courtroom. Al-Kidd's treatment was unconstitutional, and those who violate the legal rights of American citizens must be held accountable for their actions. Our court system exists so those who have been wronged may seek justice. A government official who crafts policies whose purpose is to deny civil rights must be held accountable.

What if John Ashcroft visited Saudi Arabia, and the Saudi government treated him in the way he ordered the FBI to treat Abdullah al-Kidd? Not only would every American be outraged, but there would be no question that Ashcroft would be justified in seeking recompense from the Saudi government under the Foreign Sovereign Immunities Act.

This isn't the end of the story. In 2006, an Army veteran working as a contractor in Iraq was arrested by the US Military, thrown in prison, and beaten -- both by his captors and by other prisoners. He was released nine months later without ever being charged with a crime.

In 2011, the veteran sued Bush's Defense Secretary, Donald Rumsfeld. Rumsfeld apparently approved which prisoners would be tortured on a case-by-case basis. Therefore, Rumsfeld must have known about the veteran's detention and approved his mistreatment personally. Although Holder's Justice Apartment argued in court that Rumsfeld cannot be sued personally for official conduct, a U.S. District Judge has ruled that the lawsuit can go forward. (Source: Huffington Post.)

According to former Congresswoman Elizabeth Holtzman's book Cheating Justice, the Obama Administration has pressured other countries to drop indictments against former Bush Administration officials for crimes committed on their soil.

Bush and Cheney confessed to torture because they're confident Obama and Holder won't prosecute them. However, they also can't leave the United States, because foreign governments can do what our own government will not and charge them with war crimes. As long as torturers in high places know their wealth and power will protect them from prosecution when they commit crimes, lower-level officials — such as Sheriff James Parker, who routinely tortured suspects until they made false confessions to make the pain stop — will also consider themselves above the law.

The Justice Department must investigate all instances of torture that took place during the Bush era. All government officials who ordered or committed torture must be prosecuted to the fullest extent of the law.

President Obama has pledged to close the prison and relocate the detainees to a maximum-security prison in the United States, where the detainees would be put on trial. While Obama was in the process of arranging this, Congress passed a law forbidding the transfer of those prisoners to American soil.

Congress put Obama in an impossible situation. Under the Constitution it's illegal for the American government to arrest someone and imprison them forever. Everyone has the right to due process - to hear the charges against them, to see the evidence, to legal counsel, to a trial. If President Bush can deny these rights to people kidnapped on foreign soil, then a future President Nixon can deny these rights to people on his political enemies list, and a future J. Edgar Hoover can deny these rights to civil rights activists.

However, the Constitution also requires the President to see that the laws are faithfully executed. Obama cannot legally hold Guantanamo detainees forever without proof, judge, or jury, as has been done for the last thirteen years -- but he cannot put them on trial, either.

Holder must challenge the 2010 law in court and ask a judge to strike it down as unconstitutional. If the United States continues to hold detainees indefinitely without due process, we're no better than the Taliban.

Article II, Section 3 of the Constitution: The President "...shall take Care that the Laws be faithfully executed..."

Soon after President Bush declared a "War on Terror," he launched a deliberate campaign to make America's clear laws against torture and war crimes seem ambiguous. For instance, when the U.S. Military captured suspected terrorists in Afghanistan, Bush invented a new term for them: "illegal enemy combatants." He claimed that these detainees were neither prisoners of war nor criminals, so no laws applied to them -- and they could be imprisoned forever, with no proof, charge, counsel, trial, judge, or jury. Some of these "enemy combatants" were sent to a prison the Bush Administration built at our naval base at Guantanamo Bay, Cuba. Others were sent to other countries to be tortured (a process known as "rendition") or sent to secret prisons around the world. Eventually, more suspected terrorists received this treatment, whether they were captured in Afghanistan or not.

In addition, Bush and his subordinates invented a new term -- "waterboarding" -- for the technique formerly known as "water torture" or "drowning torture." They then had the audacity to claim that "waterboarding" was "not torture" because they'd changed its name. Although Bush kept his language ambiguous while he was in office, he later said he was proud of having ordered torture. (Source: Huffington Post.) Former Vice President Dick Cheney made similar claims. (Sources: TruthOut; Salon Magazine)

Neither President Obama nor Attorney General Holder appear to have noticed their predecessors publically confessing to some of the most heinous crimes known to man. This is a clear violation of the chief executive's Constitutional responsibility to "take Care that the Laws be faithfully executed." As the chief executive of the United States government, and the chief law enforcement officer of our nation, President Obama and Attorney General Holder have a Constitutional obligation -- and a moral one -- to bring criminals to justice. Obama and Holder are legally and ethically required to investigate and prosecute everyone who crafted and carried out Bush's torture policy.

Instead, after investigating over a hundred cases of illegal torture, Holder decided not to prosecute the torturers, even when the victim died. Apparently, according to the Attorney General, torturing someone to death isn't murder, so long as the torturer works on behalf of the Federal Government.

Bush, Cheney, Rumsfeld, and their subordinates must be arrested, charged, given competent representation, tried fairly, and convicted fairly -- unlike the way they treated the people detained at their orders.

Though former Vice President Cheney has harshly criticized President Obama, Obama's presidency has been the best thing that could have happened to him. Obama has kept his pledge "to look forward as opposed to looking backwards," and Holder refused to bring charges against Cheney and other Bush Administration officials for the crimes they committed while in office. According to former Congresswoman Elizabeth Holtzman, by the time Obama leaves office, the statute of limitations will have expired on many Bush-era crimes. That will make it impossible to bring charges against them.

In addition, CIA Director John Brennan has admitted that the CIA illegally spied on the Senate Intelligence Committee in an attempt to cover up Bush-era torture.

President Obama must fire Director Brennan. If he does not, Brennan must be impeached and removed from office.

Two days after taking office, President Obama issued an executive order banning torture. Although Obama's heart is in the right place, the President of the United States does not have the authority to ban torture, any more than he has the authority to authorize it.

Why is this? The Eighth Amendment reads "cruel and unusual punishments [shall not be] inflicted." Torture is unconstitutional. If President Obama has the authority to ban torture, than President Bush must have had the authority to un-ban it. Obama's successor could use an executive order to un-ban it again, then his successor could re-ban it, and so on. If this were the case, torture would be legal in America depending on who's President.

The American system of justice does not work that way. The Constitution requires every President to uphold the law. No President has the power to decide which laws to uphold and which laws to ignore.

Every President before George W. Bush understood this. The first President to issue orders banning torture was George Washington. After World War II, the United States prosecuted and convicted Nazi and Japanese leaders who had ordered what was then known as "drowning torture." The Reagan Administration prosecuted Sheriff James Parker and his subordinates who used what was then called "water torture" to force suspects to confess.

In 2009, then-Vice President Cheney called waterboarding "enhanced interrogation" and claimed that waterboarding suspected terrorists to extract information had saved American lives. (Source: Fox News.) Cheney was dead wrong, and suffers from the same delusion that afflicts all torture apologists. Torture is not an interrogation tool. The only reason to torture someone is to force them to confess to things they didn't do. That's what torture is for. Someone broken under torture will say anything they think the torturer wants to hear in order to make the pain stop. Torture doesn't make people tell the truth. It makes people lie.

The things prisoners said in order to stop the torture led directly to some of George W. Bush's false claims that Iraq had weapons of mass destruction and was allied with al-Qaeda. (Sources: The New York Times; Frontline.) The waterboarding of suspects helped cause the war in Iraq. Far from saving American lives, torture -- and the war torture was used to justify -- caused nearly 5,000 American deaths.

American forces finally brought down terrorist mastermind Osama Bin Laden two years after President Obama banned the use of waterboarding. They found him using standard interrogation methods. The Bush-Cheney policy of waterboarding prisoners forced those prisoners to lie, and American intelligence spent years chasing false leads. (Sources: Wired Magazine; Ashwin Madia; Dan Froomkin; Robert Creamer; Doug Bandow; the Huffington Post.)

Some of the hundreds of people detained during the Bush years were in fact terrorists, and some were not. No one could sympathize with an al-Qaeda member being tortured. However, imagine yourself in the place of Fouad al-Rabiah.

A Kuwaiti citizen, he was unlucky enough to be visiting Afghanistan at the time of the September 11th terrorist attacks. Al-Rabiah was detained, tortured, and eventually sent to Guantanamo. Once broken, he behaved the same way as all torture victims have throughout history: he told his captors whatever they wanted to hear in order to make the pain stop.

After eight years, Al-Rabiah's case finally came before a military tribunal. After looking at the evidence, the judge realized the man never had anything to do with terrorism and ordered him sent home.

Far from prosecuting the officials who tortured al-Rabiah and other suspected terrorists, President Obama announced in 2009 that he would not prosecute Bush Administration officials who ordered waterboarding and other war crimes. Neither would he prosecute those who carried out those illegal orders. As a result, four serious 2012 presidential candidates -- Mitt Romney, Michele Bachmann, Rick Perry and Herman Cain -- proudly admitted that they would torture suspected terrorists if elected.

This pattern worsened in the 2016 election cycle. According to The Week, six candidates -- Donald Trump, Jeb Bush, Marco Rubio, Ben Carson, Carly Fiorina, and Lindsey Graham -- have all declared that they will torture suspects if elected President. The Intercept adds Ted Cruz to the list, and Salon adds Chris Christie -- bringing the total to eight. Torture will continue until all officials who ordered it -- and all those who carried out those orders -- are brought to justice.

Ironically, during the Bush years, a CIA officer named John Kiriakou saw the damage that waterboarding was doing to American intelligence and interests around the world, and tried to stop it. When his superiors ignored him, he leaked the name of an official who'd engaged in illegal torture to the press. (Source: Huffington Post.) The reporter ran the story, but did not reveal the name.

After his whistleblowing, Kiriakou was arrested by the Justice Department and charged with espionage. In January 2013, he was convicted and sentenced to thirty months in prison. In other words, Holder won't prosecute Bush Administration officials who committed war crimes, but he will prosecute career CIA officers who tried to prevent war crimes. The officer who tortured the suspect was never investigated or indicted.

MoveOn.org has called on President Obama to pardon John Kiriakou.

Ironically, then-Vice President Cheney's advisor, I. Lewis Libby, did exactly the same thing in 2003. Former Ambassador Joseph Wilson had revealed that then-President Bush's claim that Saddam Hussein had tried to obtain uranium from Africa was based on an obvious forgery -- and Bush had been warned of this, twice, by the CIA. Therefore, Bush had either deliberately lied to Congress -- an impeachable offense -- or had gone on believing disproven information and sent American soldiers to their deaths because of it -- also an impeachable offense. To retaliate against Wilson, Libby illegally informed the press that Wilson's wife, Valerie Plame, was a CIA agent investigating Iranian weapons of mass destruction. Libby compromised all Plame's work, endangered all her contacts, and made it impossible for her to work in the field again. When Libby was convicted in 2007, a grateful President Bush commuted his sentence.

Former President Bush and Former Vice President Cheney have candidly admitted that they abused the powers of their offices and ordered their subordinates to commit crimes. Torture is one of the most depraved things one human being can do to another. If Bush and Cheney are not prosecuted for these crimes, this will serve as a precedent for future Presidents. Obama and Holder had a legal and moral obligation to prosecute, and failed.

As The Daily Banter's Michael Luciano wrote:

"Imagine you are walking down the street and alongside you pulls a van from which three men emerge. They throw you into the van and whisk you away to... a dungeon. You are held there for months and are periodically tortured. Water is poured over your mouth and nose. Occasionally you're made to hang from the ceiling by your wrists. Sometimes, you are locked in a coffin-sized box, unable to move for hours at a time... You don’t know if you’ll ever see your family again, which has no idea where you are or if you're even alive.

"...You somehow manage to escape [and] tell your harrowing tale to a detective in the hopes that police will track down these sadists and arrest them so they can be prosecuted. After you've finished speaking, the detective calmly takes a sip of his coffee and says he won’t investigate because, he says, 'We need to look forward as opposed to looking backwards.'

"When Obama says he won't investigate the Bush torture program and won't bring criminal charges against those responsible for it, he is simply reiterating the long-standing orthodoxy the laws do not apply to the rich and powerful.

"This is exactly why Dick Cheney has no qualms about going on television and... admitting that his administration tortured people: he rightly fears no reprisal at all... he truly believes powerful people such as himself are above the law."

For five years, Holder's Justice Department also refused to investigate and prosecute mortgage fraud by Wall Street banks that caused serious damage to our economy in 2008. According to Holder, "I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them ... I think that is a function of the fact that some of these institutions have become too large." (Source: American Banker)

Holder's unwillingness to do his job and investigate criminal acts -- either by the Bush Administration or by big Wall Street banks -- speaks to his way of thinking. The Justice Department has investigated and prosecuted college students and whistleblowers in their twenties, but can't be bothered to prosecute financial crimes committed by the rich and powerful. That shames our democracy.

The Justice Department's treatment of the late internet pioneer Aaron Swartz is especially horrifying when looked at in this context. According to Wikipedia, Swartz -- who helped develop computer software in widespread use today -- signed up for an account at MIT to download academic articles, then downloaded more than his quota. Even though MIT did not want Swartz prosecuted, the Justice Department disagreed, and arrested him in 2011. They charged him under an obscure computing law that predates the internet and gave him an ultimatum: plead guilty and spend seven years in prison, or go to trial, get convicted, and spend thirty-five years in prison. Rather than face a trial, Swartz killed himself. He was 26.

Make no mistake: had Aaron Swartz been employed at the National Security Agency and used his computing skills to wiretap innocent Americans, he'd have been promoted.

The Guardian points out this is part of a disturbing pattern. Under Holder, "there have been eight prosecutions under the 1917 Espionage Act – more than double those under all previous presidents combined." For the crime of talking to the press, American officials who weren't rich or famous (such as Jeffrey Sterling, John Kiriakou, and Bradley Manning) went to prison, while an official who was rich and famous -- then-CIA Director David Petraeus -- got probation. Another State Department contractor, Stephen Kim, also went to jail -- for telling a reporter about North Korea's nuclear program.

According to an article by Kiriakou, "Tom Drake, a senior executive at the National Security Agency (NSA), blew the whistle on an illegal and wasteful program to intercept the communications of American citizens. He didn’t go to the press. He went to the NSA’s Inspector General, the General Counsel, the Pentagon Inspector General, and then to the Congressional Oversight Committee, just like he was supposed to. His reward was 10 espionage charges, all of which were eventually thrown out, but not until he had lost his job, his home, and his pension." What had Drake done? He complained that the NSA had wasted $1.2 billion on a surveillance program that should have cost $3 million.

The Attorney General has a Constitutional, legal and moral responsibility to investigate and prosecute anyone who broke the law -- including Bush Administration officials who ordered torture, government officials who carried out these orders, NSA officers who spied on innocent Americans without search warrants, and big banks who committed mortgage fraud. Instead of doing so, Holder's Justice Department prosecuted John Kiriakou, Aaron Swartz, Jeffrey Sterling, Stephen Kim, Thomas Drake, and Edward Snowden.

Updates: In late 2013, the Justice Department finally brought charges against JP Morgan Chase. The bank settled the case for $13 billion. Notably, the Justice Department settled despite having evidence of a widespread policy of mortgage fraud that they apparently decided not to use. According to Dean Baker, Holder's willingness to settle with banks whose executives knew they were breaking the law only encourages future bank fraud.

In 2014, Bank of America also settled with the Justice Department for $16.6 billion dollars. However, they can write off this settlement on their taxes!

These banks are still foreclosing on senior citizens and veterans -- and for every homeless person in the United States, there are five empty houses.

Article II, Section 4 of the Constitution: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Therefore, Congress has the responsibility to oversee the Executive Branch to ensure no high crimes and misdemeanors take place.

If former Attorney General Holder, Attorney General Lynch, Director Clapper, former Secretary Napolitano, former Deputy Director Inglis, Director Brennan, or anyone else in the Obama Administration has broken the law, they must be held accountable. They should be impeached or indicted, removed from office, given a fair trial, and convicted.

In America, the law declares that suspects are innocent until proven guilty, and that everyone is entitled to justice. If government officials are legally allowed to hurt innocent people -- or target them for harassment and discrimination -- we're no better than the Taliban.

During a debate with then-Presidential candidate Mitt Romney, President Obama said: "Governor Romney doesn’t have a five-point plan; he has a one-point plan. And that plan is to make sure that folks at the [very] top [get to] play by a different set of rules." Obama had a point, but he neglected to mention that his administration's approach to justice follows the Romney Plan to the letter.

• In 2010 -- over a year after President Obama took office -- the Army arrested 22-year-old Private Bradley Manning and confined him naked in a military prison. Manning was not suicidal, nor was he accused of a violent crime. After two years in prison, Manning was sentenced to another 35 years -- for exposing war crimes in Iraq. (Obama commuted Manning's sentence five years later.)
• Also that year, the FBI hid a GPS tracking device in Yasir Afifi's car without first obtaining a search warrant. Afifi is a 20-year-old American college student, and the FBI had no reason to suspect him of wrongdoing.
• Also that year, State Department contractor Stephen Kim was charged and convicted of espionage for talking to a reporter about North Korea's nuclear program. According to NBC, renowned journalist Bob Woodward wrote a book about the Obama Administration that revealed far more sensitive information than Kim disclosed, but no one ever considered charging Woodward or his sources with espionage.
• Also that year, the Justice Department raided the homes of peaceful anti-war protesters in Minnesota.
• In 2011, the Justice Department indicted 24-year-old internet pioneer Aaron Swartz for downloading too many academic articles. Swartz killed himself after two years of fighting the indictment in court.
• In 2012, the Justice Department filed bogus espionage charges against NSA official Thomas Drake for trying to stop his superiors from wasting over a billion taxpayer dollars. Though Drake was exonerated, the court battle was so expensive that he lost his job, his home, his pension, and his savings. He now works in retail.
• In 2013, CIA officer John Kiriakou was sentenced to prison for telling a reporter that one of his colleagues at the CIA had illegally tortured a suspect.
• A few months later, Edward Snowden, a 29-year-old former NSA contractor, was charged with espionage and theft for exposing thousands of cases of illegal surveillance.
• In 2015, former CIA officer Jeffrey Sterling was convicted of espionage for talking to a reporter -- with no evidence the two discussed anything classified.
• However, no one in the entire United States government did anything when two millionaires -- George W. Bush and Dick Cheney -- candidly admitted to violating the War Crimes Act when they were government officials. Something is wrong here.

Attorney General Holder believes Bush, Cheney, Rumsfeld, Ashcroft, and other officials should not be prosecuted for the crimes they committed while in power. The 2012 election proved him wrong. Mitt Romney proudly proclaimed that, if elected President, he would double Guantanamo, torture people, and spy on innocent Americans without obtaining search warrants first -- and Romney came within three million votes of the Oval Office. Until public officials who commit crimes are held accountable, Presidents -- and candidates -- will continue to believe they are above the law.

Likewise, Holder made only token efforts to bring wealthy bankers to justice for mortgage fraud. Holder also, at taxpayer expense, defended Ashcroft and Rumsfeld against private lawsuits brought by people they ordered tortured.

In America, we believe that we are endowed by our Creator with certain inalienable rights, that the government exists to protect those rights, and that the Constitution is the legal framework that describes how the government is to do this. History has shown that when the personality of a leader overshadows the rule of law, abuses result. This happened in France with Napoleon III, in the Philippines with Ferdinand Marcos, and in the United States with Richard Nixon and George W. Bush.

The only way to prevent this from happening again is to ensure that anyone who uses the power of high office to commit crimes is brought to justice. Criminals who are wealthy and powerful must be indicted, tried, and convicted like any other criminals. Likewise, President Obama has a legal responsibility to ensure that the FBI does not harass antiwar protesters or install GPS devices without search warrants. He has a responsibility to ensure that United States government officials don't assault airline travelers in the name of protecting them. He has a responsibility to guarantee that the NSA does not seize emails or phone records without search warrants. He has the responsibility to bring to justice any government officials who conspired to commit torture or any other crime, even if those officials are no longer in power.

If he does not do so, future human rights abuses by the U.S. government won't be just a possibility. They will be a certainty.

This is a personal essay by C. Colvin.

Last updated: January, 2017