Quiz Answers on Bush's Law

Eric Lichtblau's "Bush's Law: The Remaking of American Justice" available from your local library or from Amazon.com for $17.79 + shipping OR by e-mailing "readingliberallyemaillist@johnkarls.com" with the subject = "book loan requested"
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johnkarls
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Quiz Answers on Bush's Law

Post by johnkarls »

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Question 1.

Which candidate, in the Pennsylvania Presidential Debate, said – “our first step should be to keep nuclear weapons out of the hands of Iranians, and that has to be one of our top priorities. And I will make it one of our top priorities when I am President of the United States…my belief is that they should also know that I will take no options off the table when it comes to preventing them from using nuclear weapons or obtaining nuclear weapons…”???

Suggested Answer 1.

Barack Obama.


Question 2.

Which candidate, in the Pennsylvania Presidential Debate, said – “we cannot permit Iran to become a nuclear weapons power…we have got to have this process that reaches out…to get the rest of the world on our side to impose the kind of sanctions and diplomatic efforts that might prevent this from occurring…”???

Suggested Answer 2.

Hillary Clinton


Question 3.

Two days after the Pennsylvania Presidential Debate, what is the name of the female Iranian attorney who won the Nobel Peace Prize in 2004, who was the first female Muslim to do so, and who was speaking in the Ballroom of the University of Utah Student Union???

Suggested Answer 3.

Shirin Ebadi.


Question 4.

After an eloquent prepared speech about the “U.N. Convention on the Rights of the Child” and on Human Rights in general in Iran, the Muslim World, and globally (spiced with remarks about how the U.S. should NOT use various human-rights abuses as a pretext for invading Iran), the 2004 Nobel Peace Prize winner was asked by a female student during the “Q & A” period whether, since any U.S. invasion of Iran would presumably be provoked instead by Iran’s nuclear-weapons program, a pursuit of nuclear weapons by Iran would be a “just cause” for the U.S. to invade Iran. How did the 2004 Nobel Peace Prize winner respond???

Suggested Answer 4.

She “stone walled” by claiming that Iran does not have a nuclear weapons program, conveniently “turning a blind eye” to the fact that just six weeks earlier on 3 March 2008 the United Nations Security Council, at the request of Germany and the Five Permanent Council Members (France, Britain, Russia, China and the U.S.) passed another resolution adding to the sanctions against Iran because of its nuclear-weapons program.

Although the votes on the two earlier United Nations Security Council Resolutions regarding Iran’s nuclear-weapons program were unanimous (Resolution 1747 of 3/24/2007 and Resolution 1737 of 12/23/2006), the new resolution of 3 March 2008 was only 14-0 because Indonesia abstained stating it had done so because it had not been convinced that additional sanctions were required at this time to compel Iranian compliance with the two earlier resolutions.


Question 5.

What was/is “The Gang of Eight???

Suggested Answer 5.

According to Eric Lichtblau and numerous other sources, “The Gang of Eight” were the senior Democratic and Republican leaders in Congress who were briefed frequently beginning immediately after 9/11 on all intelligence matters – including warrantless wiretapping, water boarding, Afghanistan and Iraq.

They were the Senate Majority and Minority Leaders, the Chair and Ranking Minority Member of the Senate Intelligence Committee – and their four counterparts from the House of Representatives.


Question 6.

Who were the four original Democratic members of “The Gang of Eight”???

Suggested Answer 6.

The four original Democratic members of “The Gang of Eight” were –
Senate Majority Leader Tom Daschle (D-SD)
Sen. Intelligence Comm. Chairman Bob Graham (D-FL)
House Minority Leader Dick Gephardt (D-MO)
House Intelligence Comm. Ranking Minority Member Nancy Pelosi (D-CA)


Question 7.

Who are the four present Democratic members of “The Gang of Eight”???

Suggested Answer 7.

There have been four changes in the Democratic members of “The Gang of Eight” which presently comprise Harry Reid, John D. Rockefeller IV, Nancy Pelosi and Silvestre Reyes –

On 1/3/2005 Harry Reid (D-NV) succeeded Tom Daschle as Senate MINORITY Leader (Democrats had lost control of the Senate during the 2002 election) after Daschle lost his seat during the 2004 election.

On 1/3/2005 John D. Rockefeller IV (D-WV) succeeded Bob Graham who did not run for re-election in 2004 in order to concentrate on running for President (though this was not necessary since, for example, Lyndon Johnson ran simultaneously for Vice President and for the U.S. Senate in 1960).

On 1/3/2003 Jane Harman (D-CA) effectively replaced Dick Gephardt. Dick Gephardt resigned as House Minority Leader (though he remained in Congress for 2 more years) on 1/3/2003 in order to concentrate on his campaign for President. He was succeeded by Nancy Pelosi who was already a member of “The Gang of Eight” by virtue of having been the House Intelligence Committee Ranking Minority Member. As Pelosi moved up, Jane Harman became the ranking Democrat on the House Intelligence Committee.

On 12/1/2006 Silvestre Reyes (D-TX) was announced by prospective Speaker Nancy Pelosi as her choice to become Chair of the House Intelligence Committee instead of Jane Harman.


Question 8.

Are all of the Democratic members (past and present) of “The Gang of Eight” unindicted felons???

Suggested Answer 8.

Lichtblau appears to think so!!!

On page 168 of “Bush’s Law” he states: “The secrecy, a report from the nonpartisan Congressional Research Service would ultimately find, appeared to violate a 1947 law that required ALL (original emphasis) the members of the intelligence committees – not just a few leaders tapped by the White House – to be “fully and currently informed” of all noncovert intelligence programs like this one. The law also required that there be written records of such briefings, but that too was ignored in the oral briefings that select members were given.”

The text of the 1/18/2006 Memorandum of the Congressional Research Service cited by Lichtblau is posted on this bulletin board under “reference materials.”

As can be seen from an examination of the Memorandum, Lichtblau is grossly overstating its conclusions. And the Memorandum did not even address Constitutional issues such as the President’s “Commander in Chief” power.

A mere law passed by Congress cannot trump the U.S. Constitution and, accordingly, a wartime President can brief whomever (and however few people) he deems advisable under his “Commander in Chief” powers.

However, Democratic members of “The Gang of Eight” could have denied President Bush “political cover” from being able to claim he had briefed key DEMOCRATIC and Republican Congressional leaders by refusing to accept the briefings.

Since it would appear to a “Who’s Who In America” Harvard Law graduate who has practiced law for more than 40 years that the 1947 law could be BINDING ON MEMBERS OF CONGRESS even though it could NOT BE BINDING ON A WARTIME PRESIDENT EXERCISING HIS CONSTITUTIONAL “COMMANDER IN CHIEF” POWER, Lichtblau’s point boils down to an alleged violation of the 1947 law by the members of “The Gang of Eight” but NOT the President.


Question 9.

Why did Nancy Pelosi later “throw under the bus” Rep. Jane Harman (D-CA), who was Nancy’s successor as ranking Democrat on the House Intelligence Committee and, as such, became one of Nancy’s three Democratic colleagues in “The Gang of Eight”???

Suggested Answer 9.

The 11/17/2006 Los Angeles Times Editorial entitled “Don’t Snub Harman” and published 14 days before Pelosi did indeed snub Harman (the editorial is posted on this bulletin board under “reference materials”), lists the top reasons commonly cited for possibly passing over Harman, harpooning each of them as bogus.

What the Los Angeles Times Editorial could not have foreseen was Nancy Pelosi’s subsequent Nixonesque fabrication and back-dating of a letter to 10/11/2001 purporting to protest the first briefing given “The Gang of Eight” on 10/1/2001. The letter is described by Lichtblau on pp. 151-152.

This should be compared to the 12/9/2007 Washington Post article (also posted on this bulletin board under “reference materials”) which states vis-à-vis the more-than-30 “Gang of Eight” briefings during the first 5 years following 9/11 (an average of one briefing every 8 weeks) –

“Pelosi declined to comment directly on her reaction to the classified briefings. But a congressional source familiar with Pelosi’s position on the matter said the California lawmaker did recall discussions about enhanced interrogation. The source said Pelosi recalls that techniques described by the CIA were still in the planning stage – they had been designed and cleared with agency lawyers but not yet put in practice – and acknowledged that Pelosi did not raise objections at that time.”

It doesn’t take a Sherlock Holmes to suspect that Nancy was throwing Jane “under the bus” on 12/1/2006 in preparation for making the Nixonesque claim for the first time between the 12/9/2007 Washington Post article and Lichtblau’s 4/1/2008 book that she had written a letter of objection back on 10/11/2001. In order to do so, it would be advisable to move aside anyone who could have disputed her new claim – denying them access to any documents and rendering their memories as “old and cold” as possible.


Question 10.

Who is John Yoo???

Suggested Answer 10.

Prof. John Yoo, on a “leave of absence” from the University of California (Berkeley) Law School to work for the US Department of Justice, wrote the famous “torture memorandum” of 3/14/2003 which was released pursuant to an ACLU “Freedom of Information Act” law suit on 3/31/2008.

Prof. Yoo also wrote the DOJ’s famous “warrantless wiretap” memo which has not yet been made public.


Question 11.

Who is Jack Goldsmith???

Suggested Answer 11.

Prof. Jack Goldsmith joined the Department of Justice in October 2003 from the University of Chicago Law School 7 months after issuance of the “torture memo.”

During his 9-month stay at DOJ, he “withdrew” both Yoo memoranda. He departed for Harvard Law School.


Question 12.

According to Eric Lichtblau (our author), why did Jack Goldsmith, upon taking office, withdraw John Yoo’s “torture memo” and his “warrantless wiretap memo”???

Suggested Answer 12.

Lichtblau makes clear that the withdrawal of Yoo’s torture memo and the withdrawal of Yoo’s memo(s) regarding the NSA warrantless-wiretap program were the result of a “changing of the guard” similar to Sen. Jay Rockefeller’s joining the “Gang of Eight” in Jan 2005. In the case of the Yoo torture memorandum which was dated 14 March 2003, Prof. Jack Goldsmith of the U/Chic Law School was appointed the new head of DOJ’s Office of Legal Counsel in October 2003 and, per Lichtblau, like Jay Rockefeller’s behavior in not feeling bound by the actions of predecessors, decided to re-issue Yoo’s memoranda.

In the case of Yoo’s torture memo, Lichtblau only claims that Goldsmith was surprised by the severity of the interrogation tactics that are authorized by the law (or at least can be strongly argued are authorized). Lichtblau does NOT claim that Goldsmith thought there was anything wrong with the analysis.

Except that Lichtblau remarks that Goldsmith noted with respect to both the torture and warrantless-wiretap memoranda that there were no file memoranda explaining how conclusions were reached. Which, if Lichtblau were an attorney (I am assuming he isn’t from the quality of this remark, but he may be), he would realize how silly that observation is – any legal memorandum or legal brief should already contain EVERYTHING that explains how the conclusion is reached (and if a point is considered extremely trivial, it is banished to a footnote – not to a file memo!!!).

Incidentally, vis-à-vis Yoo’s NSA warrantless-wiretap memo(s), Lichtblau remarks that Goldsmith noted that they did not mention the Supreme Court’s decision against Pres. Truman’s seizure of the steel mills to halt a strike that was hurting the Korean War effort. However, Yoo’s warrantless-wiretap memo(s) had catalogued how war-time Presidents Washington, Lincoln, Wilson, Franklin Roosevelt and Truman had invoked their Constitutional “Commander in Chief” War Powers to seize and examine all communications of whatever type were the technology of their day (mail, telegraph, telephone, etc.). And Lichtblau notes that in Yoo’s memoir, he replies to Goldsmith’s point about the steel-mill decision that there were earlier Office-of-Legal-Counsel memoranda explaining why that decision “had no application to the President’s conduct of foreign affairs and national security.” It would be interesting to know whether OLC practice is to ignore points covered by previous OLC memoranda – since a legal brief or court opinion would re-address a point that might be considered relevant and then explain why it is irrelevant, even if it merely cites other opinions that contain the explanation.


Question 13.

Did the Bush Administration fail to perform proper “due diligence” (from their viewpoint) in their appointment of Jack Goldsmith???

Suggested Answer 13.

It might appear that they did, since conservatives usually come in two varieties – foreign-policy conservatives who favor aggressive tactics and traditional limited-government conservatives who tend to oppose all governmental powers aggressively.

However, judging from comments from Judge Mukasy during his recent confirmation hearings for US Attorney General and from President Bush while vetoing earlier this year a law specifically aimed at water boarding, one can easily infer that Prof. Goldsmith’s replacement memorandum on interrogation techniques approved water boarding, at least in extreme circumstances.

In this regard, President William Clinton has answered affirmatively “the ticking tomb question” (would you use water boarding if you thought it was necessary to save American lives), though presumably his answer was based on earlier DOJ advice prepared during his Administration.


Question 14.

Besides our book by Eric Lichtblau, has Jack Goldsmith written his own book about this that we could read for extra credit???

Suggested Answer 14.

Yes – “The Terror Presidency: Law and Judgment Inside the Bush Administration" (W.W. Norton & Co. 9/10/2007).


Question 15.

Can you name a U.S. President who ordered the wartime seizure of whatever communications (foreign to foreign, U.S. to/from foreign, and U.S. to U.S.) he thought advisable, with no stated authority other than his Constitutional “Commander In Chief” powers???

Suggested Answer 15.

Yes – George Washington, Abraham Lincoln, Woodrow Wilson, Franklin Roosevelt and Harry Truman.

George W. Bush does NOT qualify for the list because he has NOT seized any U.S. to U.S. communications.

Franklin Roosevelt, incidentally, also used his Constitutional “Commander in Chief” power (A) to incarcerate immediately after Pearl Harbor in 1941 ALL AMERICAN CITIZENS of Japanese heritage, and (B) until the end of the war in 1945, to hold them without trial or recourse concentrated in camps which, accordingly, were literally “concentration camps”!!!


Question 16.

Can Constitutional powers be abridged by mere laws passed by Congress???

Suggested Answer 16.

Of course not!!! Though many stories in the media are based on an unstated premise to the contrary!!!


Question 17.

What are – (A) “wall standing”??? (B) “hooding”??? (C) “subjection to noise”??? (D) “sleep deprivation??? (E) “deprivation of food and drink”??? (F) “water boarding”???

Suggested Answer 17.

Per the 1978 decision of the European Court of Human Rights involving litigation between the Irish Republican Army and Britain (the court has jurisdiction over 45 signatory European nations) –

Wall Standing = The prisoner stands spread eagle against the wall, with fingers high above his head, and feet back so that he is standing on his toes such that all of his weight falls on his fingers.

Hooding = black or navy hood is placed over the prisoner's head and kept there except during the interrogation.

Subjection to Noise = Pending interrogation, the prisoner is kept in a room with a loud and continuous hissing noise.

Sleep Deprivation = Prisoners are deprived of sleep pending interrogation.

Deprivation of Food and Drink = Prisoners receive a reduced diet during detention and pending interrogation.

****
Water Boarding (which was not involved in the IRA/Britain litigation) is usually described as placing a cloth over the face of a prisoner who is lying on his back with his feet slightly raised, whereupon water is poured on the cloth to produce a sensation of drowning.


Question 18.

In 1978 litigation between Britain and the Irish Republican Army (“IRA”), which of these methods did the European Court of Human Rights decide did NOT constitute torture???

Suggested Answer 18.

The court decided that none of the five methods involved in the law suit (all of those described above except water boarding which was not involved) constituted “torture” under European standards.


Question 19.

In the 1978 decision, did the European Court of Human Rights specify that all of the “aggressive interrogation methods” of which it approved could be employed simultaneously for virtually-unlimited periods of time without constituting “torture”???

Suggested Answer 19.

The court decided that all five methods involved in the law suit could be employed simultaneously for virtually-unlimited periods of time without constituting “torture” under European standards.

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