On January 18, 2002, Bush issued a “finding” stating that prisoners suspected of being al Qaeda or Taliban members are “enemy combatants” and unprotected by the Third Geneva Convention. They were to be denied all rights and treated “to the extent…consistent with military necessity.” Torture was thus authorized. The 2006 Military Commissions Act – also known as the “torture authorization act” – later created the Geneva-superseded category of “unlawful enemy combatant” to deny them any chance for judicial fairness.
On January 19, 2002 Donald Rumsfeld sent a memo to the Joint Chiefs of Staff entitled: “Status of Taliban and al Qaeda.” It stated that these detainees “are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949.” It gave commanders enormous latitude to treat prisoners “to the extent appropriate with military necessity” as they saw fit.
On January 25, 2002, Alberto Gonzales issued a memo to George W. Bush, which called the Geneva Conventions “quaint” and “obsolete” and said the administration could ignore them in interrogating prisoners. He also outlined plans to try prisoners in military commissions and to deny them all protections under international law, including due process, habeas corpus rights, and the right to appeal. In December 2002, Donald Rumsfeld concurred by approving a menu of interrogation practices allowing anything short of what would cause organ failure.
On February 7, 2002, the White House issued an Order “outlining treatment of al-Qaeda and Taliban detainees.” It stated that, “none of the provisions of the Geneva Conventions apply to our conflict with al-Qaida or the Taliban in Afghanistan “or elsewhere throughout the world.”
A multitude of similar memos followed, allowing all measures that had been banned under international and U.S. law, including the 1994 Torture Statute and the Torture Act of 2000, and the 1996 War Crimes Act, which imposes a penalty of up to life in prison or death for persons convicted of committing war crimes within or outside the US. Torture is a high war crime, the highest after genocide.
Two other memos were written by John Yoo, Alberto Gonzales, Jay Bybee (now a federal court of appeals justice in the Ninth Circuit) and David Addington, Dick Cheney’s former legal counsel. One was for the CIA on August 2, 2002. It argued that interrogators should be free to use harsh measures amounting to torture. It said federal laws prohibiting these practices don’t apply when dealing with al-Qaeda because of the presidential authorization to use force during wartime. It also denied that U.S. or international law applies in overseas interrogations. It essentially “legalized” anything in the “War on Terror” and authorized lawlessness and supreme presidential power.
On March 14, 2003, the group issued another memo entitled, “Military Interrogation of Alien Unlawful Combatants Held Outside the United States.” This became known as “the Torture Memo” because it swept away all legal restraints and authorized military interrogators to use extreme measures amounting to torture. It also gave the president as Commander-in-Chief “the fullest range of power…to protect the nation.” It stated he “enjoys complete discretion in the exercise of his authority in conducting operations against hostile forces.”
In 2004, the head of the Office of Legal Counsel, Jack Goldsmith, rescinded the Memorandum, saying it showed an “unusual lack of care and sobriety in legal analysis and seemed more an exercise of sheer power than reasoned analysis.”
The administration continued to rely on the Yoo and Bybee memos, which authorized the infliction of “intense pain or suffering” short of what would cause “serious physical injury so severe that death, organ failure, (loss of significant body functions), or permanent damage” may result.
A July 20, 2006 Executive Order, was entitled “Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency.” It pertained to “a member or part of or supporting al Qaeda, the Taliban, or associated organizations who may have information that could assist in detecting, mitigating, or preventing terrorist attacks…within the United States or against its Armed Forces or other personnel, citizens, or facilities, or against allies or other countries cooperating in the war on terror…”
It authorized the Director of CIA to determine appropriate interrogation practices. Based on what is now known, they included sleep deprivation, waterboarding or simulated drowning, stress positions (including painfully extreme ones), prolonged isolation, sensory deprivation and/or overload, beatings, electric shocks, induced hypothermia, and other measures that can cause irreversible physical and psychological harm, including psychoses.
In a 2007 report, the International Committee of the Red Cross concluded that CIA interrogators had tortured high-level al Qaeda prisoners. Abu Zubaydah was one, a reputed close associate of Osama bin Laden and a Guantanamo detainee. He was confined in a box “so small (that) he had to double up his limbs in the fetal position” and stay that way. He and others were also “slammed against the walls,” waterboarded to simulate drowning, and given other harsh and abusive treatment.
The report also said Khalid Shaikh Mohammed, the alleged chief 9/11 planner, was kept naked for over a month, “…alternately in suffocating heat and in a painfully cold room.” Most excruciating was a practice of shackling prisoners to the ceiling and forcing them to stand for as long as eight hours. Other techniques included prolonged sleep deprivation, “bright lights and eardrum-shattering sounds 24 hours a day.”
A July 20, 2007 Executive Order 13440 interpreted the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency. The Executive Order prohibits specifically the following acts:
Violence to life and person, including murder, mutilation, cruel treatment and torture
Taking of hostages
Humiliating and degrading treatment
Sentencing or executing detainees “without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees…recognized as indispensable by civilized peoples”
and
Assuring wounded and sick are cared for.
In 2004, the United States Supreme Court held, in Rasul v. Bush, that the habeas corpus jurisdiction of United States federal courts extended to Guantanamo Bay.
In 2004, the Court also held, in Hamdi v. Rumsfeld, that due process mandated that an alleged enemy combatant held on U.S. soil be entitled to a due process challenge of his enemy combatant status.
In June 2006 the Supreme Court, in Hamdan v. Rumsfeld threw out section 1005a of the Detainee Treatment Act denying the right of an alien detainee to habeas corpus, and ruled that the structure and procedures of the military commissions established to try detainees violated both the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions had been violated. Congress passed and Bush signed into law the Military Commissions Act in October 2006, overriding the Supreme Court’s decision.
In 2008, the Supreme Court threw out the Act’s prohibition of the federal courts’ jurisdiction to hear detainees’ habeas corpus petitions as an unconstitutional suspension of habeas corpus in Boumedine v. Bush.
District Court Judge Aiken threw out two sections of the Patriot Act that modified the Foreign Intelligence Surveillance Act in Mayfield v. United States, but her decision was rendered moot on appeal when the Ninth Circuit Court of Appeal decided that Mayfield could not pursue his declaratory relief claim after he had settled with the Government.
The “War on Terror” is still on, and is still being used as an excuse to extend the broad brush of governmental power. The USA Patriot Act was designed to be temporary, but has been reauthorized in 2005 and 2006. On February 27, 2010, President Obama signed into law legislation reauthorizing three controversial sections of the Act relating to roving wiretaps, lone wolf surveillance and seizure of property and records. On May 26, 2011, he signed into law the Patriot Sunsets Extension Act to extend key provisions of the Act.
One more thing…
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Kenneth Eade
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HOA WIRE
KENNETH EADE
For my wife, Valentina, the best person to have in my corner
“Homeowner’s Association: the means whereby people who own homes are able to transfer their rights to the neighborhood control freaks.”
-Ron Brackin
CHAPTER ONE
Orange Grove was a pleasant modern community in Goleta, California. A former orange orchard, it was a small development, with fresh air and rolling hills. Four different models of tract townhomes, one attached to the other, repeated themselves in different combinations to line twelve perfectly manicured cul-de-sacs. Breezy blues, avocado greens, tilled tans, and cozy creams decorated the exterior of the nearly identical rows of houses, and filled the sleepy bedroom community with a pleasant palette chosen by the developer. Driveways sculpted within twin patches of green led to automatic rollup aluminum garage doors. At a touch of a button, you drove into your garage. At another touch of a button, you were greeted by the soft lights of your own private sanctuary, your castle.
Barbara Densmore was a busybody. Ever since she had learned how to use her nose, she had a terrible habit of sticking it into everyone’s business. Growing up, she was always on this or that student committee, and, due to her big mouth and ability to influence people weaker than she was, she was elected head of the student body council at Santa Barbara High School. Barbara had many acquaintances, but no friends to speak of; nobody who would really stick their neck out for her in time of need. Nevertheless, for a resident living in Orange Grove, staying on Barbara’s good side was the best way to avoid a tremendous headache.
Today was Barbara’s birthday. She could expect a call from her mother, of course, but she and her sister had not spoken in over fifteen years. Barbara had stolen away her sister’s boyfriend, Stan, and her sister, Joyce, had never had it in her heart to forgive either one of them. Barbara and Stan had been divorced now for about five years, but that still had not changed the chilly air between her and Joyce.
Barbara entered the small development, and drove the streets, waved to the neighbors who were out in their yards and stopped to chat with some of them. But her real motivation was to find violators of the HOA rules. She had, of course, memorized all of the pesky rules, and kept a little notebook to make notes of whose lawn was overgrown, who left too many cars parked in the driveway, and who had changed the color of their curtains. Today was a non-eventful day. There were the usual infractions that had not yet been abated, but other than that, it was a picture of perfect compliance.
“Happy birthday Barbara!” called out Frances Templeton, the VP of the homeowner’s association, as Barbara drove by. Barbara stopped to chat with Frances for a while, finished her rounds, and pulled in to the driveway of her perfectly compliant townhome.
Barbara parked her white Toyota Prius in the driveway, and walked up the beautifully tailored walkway to her front door. On the porch was an exquisite bouquet of red roses wrapped in cellophane, with an impressive red ribbon tied around the vase. Attached to the plastic wrap was a card. Barbara smiled, and opened the card. It read, “To a dear neighbor.”
Barbara lifted the bouquet into her arms, opened the door, walked in, and set it down on her kitchen table. There must be two dozen roses here, she thought. I wonder who on earth sent them?
Barbara was eager to get a whiff of her beautiful bouquet, and equally eager to find out who had sent it to her. The possibility of a secret admirer was titillating, and awoke in Barbara the old memory of teenage romance. She tore the clear wrapping off to smell the flowers. As she did, a cloud of white powder popped up from the roses, covering Barbara’s nose and mouth. Barbara sneezed as she accidentally inhaled it, and coughed. She quickly found the culprit; the package of rose food had a large tear in it. She examined the label and, determining it was not harmful, threw the offending package in the garbage with the discarded cellophane. There was another envelope of it that she tucked into a drawer in her kitchen.
CHAPTER TWO
Nancy Haskins opened the door, her hands full of mail. Nancy’s little Chihuahua, Nelson, immediately jumped on her as she sorted through the bills and put them into the “pay” and “wait” piles on the small table by the entry. Since Burt had passed away, it was all on her now. Electric bill – pay, mortgage bill – pay, water bill – pay, property taxes – wait. No more money. Nancy was 73 years old. She and Burt, who was five years older, had been living under the financial umbrella of social security. But when Burt took ill, Nancy couldn’t afford to quit working her regular job as a real estate agent. Retirement for Burt and Nancy was always more of a joke than a dream.
They had begun this dream, as most older couples from the east coast had, with a move to California to be closer to their daughter, Jillian, and the grandkids. But, after Burt’s illness, the bills mounted up and before long that dream had turned into a nightmare.
“Hello, my little Nelson,” she said, as she caressed the dog, ruffling his pointed ears and stroking where they connected to his tiny little head, as the last letter slipped onto the floor.
It was from the “Orange Grove Homeowner’s Association.” Coming from Long Island, a homeowner’s association was something foreign to Burt and Nancy, but they had soon learned what it was all about.
“Not again!” Nancy muttered to herself, as Nelson scratched and jumped against her jeans, whining and yelping. Turning her attention to Nelson, she threw the envelope on the “wait” pile.
The nightmare had begun with the color of their house. A year ago, Nancy and Burt received a notice requesting them to paint the exterior of their townhome, which included a detailed list of instructions. They just turned over the instructions to their painter, and asked him to paint the house the same color as the one down the street. It was a pleasant powder blue, and they had always loved it. The painter took a sample from the neighbor’s house and matched the color perfectly. The only problem was, unbeknownst to Burt and Nancy, they were not allowed to change the former color of their home. It messed with the “palette” and was a violation of the HOA rules. Nancy and Burt were happy until the HOA sent them a “Notice of Violation,” that began a series of legal battles with mounting costs and attorney’s fees. It didn’t take long for the HOA’s fees to pile up higher than a New York City high rise.
Nancy slumped onto the couch and Nelson jumped onto her lap as if he were spring-loaded, and started to play the “biting game.” It was his favorite. He charged at Nancy on the couch, and she pushed him away, over and over and over again, and each time, Nelson gently bit at her fingers and growled as he delighted in the attention.
After Nelson calmed down and curled into a tiny ball on the couch, Nancy’s mind kept going back to the HOA notice. She and Burt had exhausted all their savings fighting, litigating, and finally settling with them on the paint case after a lengthy mediation. The curiosity nagged at her until she couldn’t stand it anymore, although she knew what to expect. Because of the legal bills, mounting expenses, loss of Burt and the economy, the HOA assessments had piled up. Not only that, the Association had added “special assessments” for improvements to the common areas, as well as a ton
of attorney’s fees. Nancy simply could not afford to pay for them all. She ripped open the envelope to reveal her greatest fear. It read, “Notice of Foreclosure Sale.”
CHAPTER THREE
Jean Goldstein had had her share of tragedy in life. Her dream move from New York to California had turned to shit in its third month.
Soon after the move, at the age of 16 years, her son, Thomas, lost his life in a car accident. The strain tore apart her marriage, and she and her husband, Gary, stayed together because they couldn’t afford to live apart, or maybe just because they didn’t know what else to do. Jean had planted a Bigtooth Maple tree in her front yard on the day of her son’s funeral in his memory. That was two years ago, and now it had already grown to a healthy height. Jean felt good every time she looked at the tree. Gary had made a wall of stone around the base and affixed a little brass plaque with their son’s name on it to the wall.
When the HOA notice had come in only weeks after they had planted the tree, Jean and Gary ignored it. They were from New York and deed restrictions were as foreign to them as a monkey in a suit. After thousands of dollars in legal fees, they had dug in their heels and were now facing potential jail time with a contempt of court citation. It had become a matter of principle to them. Nobody was going to disgrace the memory of their son.
CHAPTER FOUR
By the time Nancy had gathered enough money to hire a lawyer, the foreclosure sale was coming close. Nancy walked into the State Street office of lawyer Brent Marks feeling defeated, but that feeling changed to confidence instantly after he evaluated her case.