Devil in the Details

Loyal to Rumsfeld -- or the Constitution?

A remarkable ceremony took place in the Pentagon last month. Defense Secretary Donald Rumsfeld swore in the civilians who will be reviewing the judgments reached by military commissions at Guantanamo Bay, Cuba. Here is their oath of office: “Does each one of you swear that you will faithfully and impartially perform, according to your conscience and the rules applicable to the review filed by a military commission, all the duties incumbent upon you as a member of the review panel, so help you God?”

Not a mention of the Constitution. The secretary's appointments swear to recognize no higher authority, under God, than the secretary himself.

This oath violates the clear commands of Congress. The first statute ever enacted into law -- on June 1, 1789 -- imposed a constitutional oath on all officials, and current law expressly requires everyone appointed “to an office of honor or profit in the civil service or uniformed services” to swear that he or she “will support and defend the Constitution.”

This illegal oath serves as the capstone of a ramshackle edifice that the secretary is constructing at Guantanamo. The administration has refused to follow the Geneva Conventions and prosecute alleged terrorists for war crimes under the well-established procedures of the Uniform Code of Military Justice. Instead, it has insisted on creating special rules for trial by “military commission,” an institution that lapsed into disuse more than a half-century ago.

The Pentagon's initial efforts to resurrect these commissions don't inspire confidence. Five officers have been appointed to serve on the military commission at Guantanamo, and three have obvious conflicts of interest: One served as an intelligence officer in Afghanistan and Iraq; another helped transfer prisoners to Guantanamo; and the wife of a third was an employee of John Altenburg, the senior Pentagon official who is supposed to oversee the trials. During preliminary proceedings, the only legally trained officer on the panel has misrepresented his past pronouncements on a key legal issue, and was reduced to embarrassed silence upon learning that his prior comments had been taped. The problems have been so blatant that the senior military prosecutor has agreed that some members of the tribunal should consider disqualifying themselves.

Within this context, even an aggressive civilian review panel wouldn't suffice to reassure the world that America is living up to its constitutional commitments to fundamental fairness. The illegal oaths serve to place this larger failure in high relief.

The federal courts will ultimately decide the constitutionality of Rumsfeld's military commissions, but the members of the review panel should not wait until the outcome of a lawsuit to get themselves on the right side of the law.

All four are leading jurists: former U.S. Attorney General and federal Judge Griffin Bell, former Congressman and state Judge Edward Biester, former Secretary of Transportation William Coleman, and Chief Justice Frank Williams of the Rhode Island Supreme Court. Once the illegality of their oath is brought to their attention, they should take a more legal one -- to the Constitution of the United States.

-- Bruce Ackerman

Primeval Minefield

For a federal statute, the Wilderness Act of 1964 contains some unusually poetic language. As if channeling Henry David Thoreau, the act defines a federal wilderness area as a place “where the earth and its community are untrammeled by man … retaining its primeval character and influence … and that generally appears to have been affected primarily by forces of nature, with the imprint of man's work substantially unnoticeable.”

It's therefore a wonder how on God's green earth a large swath of land used as a naval bombing range for 50 years could qualify as a federal wilderness area. And yet in April 2003, when the Navy ceased its operations on the tiny Puerto Rican island of Vieques, the Department of Defense turned over the territorial jurisdiction of lands it formerly used as ammo dumps, training facilities, and bombing ranges to the Department of the Interior. The Interior Department, in accord with an act of Congress, then “administered” about 900 acres of the eastern portion of the island as a designated wilderness area.

This not-at-all-innocent distinction means that humans are not allowed access to the area. And this is exactly why Congress -- more precisely, some members of the House Armed Services Committee -- colluded with the Department of Defense in 2002 to designate these 900 acres as “wilderness.” The Navy is responsible for the costs of cleaning portions of Vieques, but by declaring the former bombing range uninhabitable, the Navy is magically spared the task of clearing unexploded munitions.

While no one actually lives on the former bombing range, there is a town close by, and the possibility remains that lead and other contaminants might leach into the groundwater. Furthermore, contamination from the site could migrate to the ocean from storm-water runoff on the beaches. Nearly half the residents of Vieques eat fish once or twice a week, and a contaminated fish and shellfish population could create a public-health crisis throughout the island. Should this happen, points out Congressman Jose Serrano of the Bronx, a champion of the environmental cleanup of Vieques who commissioned the Congressional Research Service report that brought this tale to light, the Navy would be required to pay for the cleanup -- and might be liable for a good deal more than that.

No doubt these fields of unexploded ordnance and contaminants make for a unique habitat, but that's not quite the same as “primeval.”

-- Mark Goldberg

Bush, the Populists' Pal

In a sign of growing desperation, George W. Bush has taken to preaching from the gospel of economic populism in the waning days of his presidential campaign -- at least, when he's in working-class communities. But oddly for a guy sitting on a nearly $20 million fortune, the president doesn't seem to know a lick about accounting principles.

“[John Kerry] says the tax increase is only for the rich,” Bush told a Wilkes-Barre, Pennsylvania, crowd on October 6. “You've heard that kind of rhetoric before. [The] rich hire lawyers and accountants for a reason: to stick you with the tab.”

In Canton, Ohio, Bush even got a little honky-tonk with his grammar as he inveighed against scheming rich tax dodgers: “[John Kerry] said he's only going to raise the tax on the so-called rich. But you know how the rich is [sic]: They've got accountants. That means you pay. That means your small business pays. It means the farmers and ranchers pay.”

Well, yes, but whose fault is it? Though it rankles real populists, these tax loopholes that the rich exploit are completely legal. If the president had even a momentary palpitation at the injustice of it all, you'd think he would just seal off the loopholes and enforce the law. But during his administration, his IRS has stepped up fraud policing of -- drumroll, please -- recipients of the Earned Income Tax Credit, whose payments in 2001 averaged $1,766 a year.

Now that's rich.

-- Ayelish McGarvey

Protocols of Wal-Mart

For those of you who thought Wal-Mart merely drags down middle-class living standards in the United States, represses worker rights in the developing world, fails to provide insurance for its employees, wipes out its better-paying competitors, discriminates against women, keeps its janitorial workforce in semi-servitude, and gives big money to the GOP -- wait! There's more!

It turns out that was selling in its book section The Protocols of the Learned Elders of Zion, the famous century-old forgery authored by Czar Nicholas II's maniacally anti-Semitic secret police, which purported to compile documents from satanic rabbis detailing how Jews would take over the world, drink the blood of Christian children, and perpetrate other Mel Gibson–like pleasantries. On, the book is described as “[o]ne of the most infamous, and tragically influential, examples of racist propaganda ever written.” But the Wal-Mart Web site took a different tack, proclaiming, “If … the Protocols are genuine (which can never be proven conclusively), it might cause some of us to keep a wary eye on world affairs. We neither support nor deny its message. We simply make it available … .”

Both the Anti-Defamation League and the Simon Wiesenthal Center understandably blew a gasket when Wal-Mart's studied neutrality toward Hitler's favorite book was called to their attention in late September. Wal-Mart then discreetly removed the volume from its Web site in what one company official told Reuters was “a business decision.”

What all this portends for the discount pogrom-supply sales in the superstores remains to be seen.

-- Harold Meyerson

Brave New Words

HAVE NEVER Have frequently, as in Vice President Dick Cheney's assertion, “I have never suggested there's a connection between Iraq and 9-11.”

FIRST TIME Third or fourth time, as in Cheney's remark to John Edwards, “The first time I ever met you was when you walked on the stage tonight.”

MOST TUESDAYS Two Tuesdays, as in Cheney's assertion that he's “up in the Senate most Tuesdays when they're in session.”