NY Times: Bush's "Tyrannical Law" is "Low Point in American Democracy"

[Spectrum]

September 28


Rushing Off a Cliff

Here’s what happens when this irresponsible Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans’ fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws — while actually doing nothing to protect the nation from terrorists. Democrats betray their principles to avoid last-minute attack ads. Our democracy is the big loser.

Republicans say Congress must act right now to create procedures for charging and trying terrorists — because the men accused of plotting the 9/11 attacks are available for trial. That’s pure propaganda. Those men could have been tried and convicted long ago, but President Bush chose not to. He held them in illegal detention, had them questioned in ways that will make real trials very hard, and invented a transparently illegal system of kangaroo courts to convict them.

It was only after the Supreme Court issued the inevitable ruling striking down Mr. Bush’s shadow penal system that he adopted his tone of urgency. It serves a cynical goal: Republican strategists think they can win this fall, not by passing a good law but by forcing Democrats to vote against a bad one so they could be made to look soft on terrorism.

Last week, the White House and three Republican senators announced a terrible deal on this legislation that gave Mr. Bush most of what he wanted, including a blanket waiver for crimes Americans may have committed in the service of his antiterrorism policies. Then Vice President Dick Cheney and his willing lawmakers rewrote the rest of the measure so that it would give Mr. Bush the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture, and to deny justice to hundreds of men captured in error.

These are some of the bill’s biggest flaws:

Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there’s no requirement that this list be published.

Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.

Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.

Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.

•There is not enough time to fix these bills, especially since the few Republicans who call themselves moderates have been whipped into line, and the Democratic leadership in the Senate seems to have misplaced its spine. If there was ever a moment for a filibuster, this was it.

We don’t blame the Democrats for being frightened. The Republicans have made it clear that they’ll use any opportunity to brand anyone who votes against this bill as a terrorist enabler. But Americans of the future won’t remember the pragmatic arguments for caving in to the administration.

They’ll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts.

 

[Spectrum]

http://www.lewrockwell.com/hornberger/hornberger101.html

Decimating the Constitution with Military Tribunals

by Jacob G. Hornberger


Given all the glorification being bestowed on three U.S. senators for displaying “principle” in standing against President Bush’s plan to amend the Geneva Convention to permit torture of detainees, followed by their quick compromise abandoning any semblance of principle, it is easy to lose sight of something much bigger: The military tribunals that the president and the Congress are set to approve will constitute the most radical, dangerous, and disgraceful transformation in the U.S. criminal-justice system since our nation’s inception.

To prevent abuse of power, the U.S. Constitution divided power between three branches of government. The legislative branch would have the power to enact the laws, the executive branch would enforce the laws, and the judicial branch would interpret the laws.

To limit the abuse of power in criminal prosecutions and to ensure that innocent people were not convicted and punished, our American ancestors deliberately set up a series of legal obstacles and roadblocks within the federal criminal-justice system, many of which stretched back centuries into English jurisprudence.

If a person were being held without charges, he could file a petition for a writ of habeas corpus, which would force the person detaining him to appear before an independent federal judge to show cause why the person shouldn’t be released.

If the executive branch had reason to believe that someone had committed a crime, it could not prosecute without first securing an indictment from a grand jury.

Any person accused of a crime was guaranteed such procedural rights as right to counsel, the right to confront witnesses against him, the right to a speedy and public trial, the right to due process of law, the right to a jury trial, the right to reasonable bail, and the right to be free of cruel and unusual punishments.

If evidence has been acquired by the authorities in violation of the reasonable search requirement in the Bill of Rights or the right against self-incrimination, such evidence is suppressed, meaning it cannot be used at trial. People accused of crimes cannot be tortured or otherwise forced to confess or provide evidence of their guilt. At trial, juries are instructed by the judge that the accused is presumed innocent and must be found not guilty unless the jury is convinced beyond a reasonable doubt by competent evidence that the accused is guilty of the crime for which he is charged.

It has always been the judicial branch that had the responsibility to ensure that the executive branch did not deprive people it was detaining or accusing of a crime of these critical procedural rights.

Given all those obstacles, it should not surprise anyone that there are many “guilty” people who go free instead of being convicted and punished. So, why did our ancestors create such a system? They knew that government officials throughout history, either with or without good intentions, had used their criminal-justice powers to punish innocent people. Our ancestors believed, as the old adage goes, that it was better that ten guilty people go free than one innocent person be found guilty and punished for a crime he didn’t commit.

Equally important, under America’s criminal-justice system these rights inure to any person, including foreign citizens, whom federal officials charge with a crime. That point shocks some Americans. They cannot believe that foreigners accused of a crime are guaranteed the same procedural rights as Americans who are accused of a crime. But it’s true – and it has long been one of great hallmarks of America’s criminal-justice system. It is something that Americans can take pride in.

Another long-established legal principle in the United States is “equal application of the law.” What it means is that in the United States, the criminal law would be applied equally to everyone, rich or poor, government official or private citizen, foreigner or American.

A closely related political principle is called “the rule of law.” Contrary to popular opinion, it does not mean that people should obey the law. What it means is that people should have to answer only to a well-defined, previously enacted criminal law for their conduct, not to the discretion or arbitrary judgments of government officials.

The military tribunals that Congress is now set to enact at the behest of President Bush effectively toss those legal principles into the ashcan of the “war on terrorism.” No habeas corpus, grand-jury indictments, due process of law, speedy and public trials, trial by jury, and protection from unreasonable searches and seizures, incompetent evidence, coerced testimony, and cruel and unusual punishments. The military tribunals will constitute one of the most fundamental altering of our constitutional order since the founding of our nation. And it’s being done without even the semblance of a constitutional amendment.

No matter how often federal officials couch their “war on terrorism” as a real war, they cannot avoid the discomforting truth: terrorism is a federal criminal offense, a law that was duly enacted by Congress. It is on the federal statute books. It is a criminal offense for which the feds have indicted and prosecuted many people – and continue to do so.

Since terrorism is a federal criminal offense, it should not surprise anyone that people who have been accused of terrorism have been guaranteed all the procedural rights enumerated in the Bill of Rights during their criminal prosecution. That is, they have had the right to an attorney to defend them, the right to cross-examine witnesses against them, the right to due process of law, the right to a jury trial, and the right to be free of cruel and unusual punishments. The Federal Rules of Evidence prohibit juries from considering hearsay and other incompetent evidence. If the accused is convicted, federal judges will not permit executive officials to torture them as part of their punishment.

Under the legislation that Congress is set to enact at the behest of the president, U.S. officials will have the option of totally circumventing the U.S. criminal-justice system for foreigners whom they accuse of terrorism. The feds will instead be entitled to employ a brand new, independent “judicial” system run by the U.S. military, which is part of the executive branch and whose officials answer to the president. This new-fangled military "justice" system will be run overseas, beyond the reach of the U.S. judiciary. While there are still ongoing debates and discussions between Congress and the president on how the military tribunals will operate, no one can deny that they will not be run by an independent federal judge, that they will have fundamentally different rules of procedure and evidence than those in federal courts, and, perhaps most important, will not have juries consisting of ordinary citizens deciding the guilt or innocence of the accused.

Both the president and the Congress justify all this by repeating their favorite post-9/11 bromide: “The 9/11 attacks were an act of war, and we are now at war against the terrorists.”

Oh? Then, pray tell: Such being the case, what were the feds doing prosecuting Zacharias Moussaoui, who was accused of conspiring to commit the 9/11 terrorist attacks, in a federal district court? If terrorism is no longer a criminal offense and is instead an act of war, then what was that grand-jury indictment against Moussaoui all about? Didn’t it specify the federal criminal laws that Moussaoui had violated in conspiring to commit the 9/11 attacks? Was it just an honest mistake to have indicted and convicted Moussaoui of that federal criminal offense? Should his guilty plea and life sentence now be vacated, and should he now be treated as a prisoner of war in the “war on terrorism”?

Or about Ramzi Yousef, who was indicted and convicted in a federal district court in New York for the terrorist bombing of the World Trade Center in 1993? Should his conviction and life sentence in a federal prison also now be vacated, and should he now be accorded prisoner-of-war status?

If terrorism is an act of war, then why is accused terrorist Jose Padilla now defending himself in a federal district court against an indictment that accuses him of terrorism?

The truth is that the “war on terrorism” rhetoric has been a sham from the beginning – a sham to enable federal officials to do what they’ve been trying to do for decades, especially in another sham war – the “war on drugs” – emasculate the Bill of Rights to enable federal officials to run roughshod over people – and not just foreigners. The military-tribunal legislation is just the culmination of decades of federal officials’ mocking and ridiculing the “constitutional technicalities” whose only real purpose, U.S. officials have long claimed, is to let “guilty” people go free.

That’s in fact why President Bush and the Pentagon set up their torture camp in Cuba rather than in the United States – to avoid the constraints of the U.S. Constitution and the Bill of Rights, which they obviously hold in disdain. After all, what other explanation could there be for their incessant attempts to circumvent America’s federal-court system?

They set up their torture camps in Cuba and elsewhere overseas, including in secret Soviet-era compounds in Eastern Europe, because they didn’t want any U.S. federal judges interfering with their operation of “justice” in their “war on terrorism.” They didn’t want to accord people accused of terrorism due process of law, right to counsel, speedy and public trials, and trial by jury. They wanted to use their own warped rules of evidence to convict people who they already “knew” were guilty, which included using unreliable testimony secured by torture. They wanted to be free to inflict cruel and unusual punishments, including torture and sex abuse, on the “terrorists.”

Now, I know that conservatives get upset when libertarians bring up Adolf Hitler in the context of the post-9/11 U.S. government assaults on civil liberties (Have you ever noticed that they never get upset when U.S. officials compare recalcitrant foreign rulers to Hitler?), but as I pointed out in my article “A Democratic Dictatorship,” when the U.S. government is doing something that Hitler did, while that doesn’t automatically make it bad, it at least should raise some red flags.

As I pointed out in my article “How Hitler Became a Dictator,” after the terrorist strike on the Reichstag, which enabled Hitler to secure the Enabling Act that temporarily suspended civil liberties in Germany, a German judge, while convicting one of the defendants, acquitted others, much to Hitler’s chagrin and disapproval. After all, they were obviously “terrorists.” How dare that German judge find them not guilty?

So, Hitler decided to implement a new “independent” judicial system within Germany to try terrorists and traitors. Known as the “People’s Court,” it became nothing more than a judicial lapdog to carry out prosecutions, convictions, and punishments in accordance with Hitler’s will. In fact, it was the infamous People’s Court that convicted German college students Hans and Sophie Scholl and their friends in the White Rose organization and quickly tried and executed them (3 days after their arrest) for treason for distributing antiwar and anti-government pamphlets.

The military tribunals that Bush and the Congress are setting up will supposedly be used only on foreigners, not on Americans accused of terrorism. The reason for that differentiation in treatment is political – the feds know that Americans are less likely to object to this new judicial system if Americans think that will be applied only to “other people,” not to them.

How can such a system be reconciled with the legal principle of equal application of the law and the political principle of the rule of law? Answer: It cannot be. Suppose there is a conspiracy to commit terrorism consisting of both foreigners and Americans. The accused will be placed in two lines – just like at the arrival section at U.S. international airports. In one line will be those who have foreign passports – they will go to the kangaroo military tribunals for conviction and punishment. In another line will be those who have U.S. passports – they will go to the federal courts – well, until federal officials decide that Americans terrorists should be treated no differently than foreign terrorists. And that will be the day when Americans start to recognize more clearly the consequences of having permitted the Congress, the president, and the Pentagon to have hijacked their criminal-justice system and decimated the judicial principles that formed the founding of our nation.

After all, the only reason that Americans do not find themselves at Gitmo is because the Pentagon, in its discretion, decided not to send Americans suspected of terrorism to Gitmo. That discretionary decision could be changed at any time, just as the current policy of “rendering” foreigners to Syria and other tyrannical regimes for torture can be changed at any time to include Americans.

The same holds true for Americans accused of terrorism in the future – they could easily find themselves before a kangaroo military tribunal fighting for their lives rather than in a U.S. district court.

After all, no one should forget the Padilla doctrine. Even though Jose Padilla, an American citizen, is in federal court now, the president and the Pentagon have made it perfectly clear that they now have the power to arrest any American for terrorism and send him to the military for punishment, bypassing the federal-court system. In fact, there’s little doubt that if Padilla is acquitted in federal court, the feds intend to yank him back into military custody as an “enemy combatant” in the “war on terrorism,” despite the bar on double jeopardy in the Bill of Rights.

Why are the feds fighting so hard for those military tribunals? Because the tribunals will enable them to directly control both the proceeding and the outcome of the proceedings. They can ensure that the defendants won’t describe too extensively the torture and sex abuse to which they have been subjected while in captivity. They can restrict access by the press to both the defendants and the proceedings. They can ensure that the defendants will be more easily convicted, given that their right to counsel will be limited and that hearsay evidence and coerced testimony, some of which will be kept secret from the accused, will be able to be used to convict them. They can keep a short leash on the military officials presiding over the proceedings, something they cannot do with an independent federal judge. They can ensure that a jury of ordinary people will not interfere with what the prosecutors are seeking, as the jury in the Zacharias Moussaoui case did in sentencing him to life in prison instead of granting prosecutors’ request to inflict the death penalty on him – or as the jury did when it acquitted several terrorism defendants in Detroit.

The military tribunals will ensure that those in the executive branch, not those in the judicial branch, will be the final deciders of who is guilty of terrorism and who isn’t and how these “terrorists” will be punished. This despite the fact that the federal “war on terrorism” dragnet has netted innocent people in the process – innocent people who have been tortured, sexually abused, and even murdered by U.S. personnel or their duly authorized foreign agents.

The tribunal legislation will confirm once again the power of federal officials to use the 9/11 attacks – attacks that ironically were motivated by anger against wrongful U.S. government policies – as a way to fundamentally alter the American way of life. More important, the enactment of the tribunal legislation will reflect once again how the American people’s fear of terrorism is causing them to look away while their federal officials decimate the Constitution and dismantle a criminal-justice system whose principles stretch back centuries.

September 28, 2006

 

[muckraker10021]

<font face="georgia" size="3" color="#0000ff">
The legislation voted into law today would explicitly permit the use of evidence obtained through waterboarding and other forms of torture. The photos below show one of the actual waterboards used by <font color="#ff0000"><b>Pol-Pot's Khymer Rouge regime</b></font> Here's the first:
<p><img alt="Waterboard1-small.jpg" src="http://www.davidcorn.com/archives/Waterboard1-small.jpg" height="274" width="366">
<br>Here's another view:
<br><img alt="Waterboard2-small.jpg" src="http://www.davidcorn.com/archives/Waterboard2-small.jpg" height="274" width="366">
<b>How were they used? Here's a painting by a former Khymer Rouge prisoner that shows the waterboard in action:</b>
<br><img alt="Waterboard3-small.jpg" src="http://www.davidcorn.com/archives/Waterboard3-small.jpg" height="274" width="366">

According to Cheney-bush-rove-rumsfeld & the US congress waterboarding is not torture. The White House has declared the use of waterboarding as a legitimate practice of the US government.</font>

 

[Greed]

Privilege of the Writ of Habeas Corpus

I'm a little torn here.

The second paragraph in the ninth section of the first article of the Constitution states:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.​

However, this terror detainee bill doesn't seem to be a response to either since these are people captured on a battlefield, which is in itself a loose term considering that many people are picked up outside of their country of origin.

Maybe an argument says the paragragh cited doesn't limit Congress in wartime.

Maybe the 9/11 attacks counted as an invasion, so the paragraph does apply and Congress acted within their authority.

I really don't know.

There is another angle which may be valid.

The authority of the president to declare people enemy combatants, thus denying them the privilege of the Writ of Habeas Corpus . It's being stated that citizens can fall under this authority. That doesn't seem right to me since the federal courts' decision regarding Jose Padilla says he can't be detained indefinitely without charge.

But the fear-based blogs are pushing this aspect of the law hard.

 

[QueEx]

Re: Privilege of the Writ of Habeas Corpus

Well, I'm more than a little torn, based on what is being published. I don't really have a solid opinion on the matter yet because I haven't personally read and analyzed it all to my satisfaction. I wish I had the time to read the legislation and do the research, but thats just not feasible.

If this law is as flawed as some are saying and if the law is basically an election year trap for democrats merely to enhance republicans chances next month, I do have this opinion: God help us.

QueEx

 

[muckraker10021]

<font face="verdana" size="4" color="#333333">

This 'Perpetual Detention & Torture' legislation is a such a crass violation of any pretext of democracy that only those who don't believe in 'true democracy' (one person, one vote) support this move to fascism.

RepubliKlans & Neo Cons have never believed in 'true democracy'. The 'Klan' part of RepubliKlan are the southern 'cracker' politicians that permanently defected from the Democratic party when Lyndon Johnson signed the civil & voting rights bills. The southern 'cracker' politicians obviously never believed in 'true democracy' (one person, one vote) .

The Neo Cons are just another name for the primarily elite white males (Michel Crozier & Samuel P. Huntington, Trilateral Commission) who after the Vietnam war was brought to an end by the sustained protest & political action of the American people, argued that there was

TOO MUCH DEMOCRACY in AMERICA.
Download and read THE CRISIS OF DEMOCRACY pdf
http://www.trilateral.org/projwork/tfrsums/tfr08.htm
Which was written in 1975.

Neo-Cons don't believe in 'true democracy' (one person, one vote) . They believe in the <a target="_blank" style="color: #000020" href="http://rawstory.com/news/2005/CanExecutive_Branch_Decide_0923.html"><u><br>&quot;Unitary Executive&quot;</u></a> and they have nothing but contempt for transparency of government and 'true democracy'. One of their primary philosophers that the Neo-Cons follow is Leo Strauss, who says that lying to-the-people is not only permissible but a necessary part of maintaining 'rule'.
Read -
Leo Strauss' Philosophy of Deception

Watch the video at the end of this post which was taped on 9/28/06 between a old-guard Reagan Republican and a former Reagan Republican who is now a Neo-Con RepubliKlan. Listen to the arguments. The fascist lunacy of the RepubliKlan is self-evident.

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<font face="arial black" size="5" color="#d90000">
The Legalization Of Torture and Permanent Detention </font>
<font face="georgia" size="3" color="#000000">

<FONT SIZE="2"> http://glenngreenwald.blogspot.com/2006/09/legalization-of-torture-an_115945829460324274.html </FONT>

There is some ambivalence in writing about the torture and detention bill because it seems to be a ship that has already sailed (the only real significant unanswered question is how many Senate Democrats will vote in favor of this atrocity). And, on a very real level, it is actually difficult to ingest the reality of what is taking place. There are nonetheless a couple of points which need to be urgently emphasized.

Opponents of this bill have focused most of their attention -- understandably and appropriately -- on the way in which it authorizes the use of interrogation techniques which, as this excellent <em>NYT</em> <a href="http://www.nytimes.com/2006/09/28/opinion/28thu1.html?_r=1&amp;oref=slogin">Editorial</a> put it, &quot;normal people consider torture,&quot; along with the power it vests in the President to detain indefinitely, and with no need to bring charges, all foreign nationals and even legal resident aliens within the U.S. But as Law Professors <a href="http://balkin.blogspot.com/2006/09/imagine-giving-donald-rumsfeld.html">Marty Lederman</a> and <a href="http://www.latimes.com/news/opinion/la-oe-ackerman28sep28,0,619852.story?coll=la-opinion-rightrail">Bruce Ackerman</a> each point out, many of the extraordinary powers vested in the President by this bill also apply to U.S. citizens, on U.S. soil.

As Ackerman put it: &quot;The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.&quot; Similarly, Lederman explains: &quot;this [subsection (ii) of the definition of 'unlawful enemy combatant'] means that if the Pentagon says you're an unlawful enemy combatant -- using whatever criteria they wish -- then as far as Congress, and U.S. law, is concerned, you <strong>are</strong> one, whether or not you have had any connection to 'hostilities' at all.&quot;

This last point means that even if there were a habeas corpus right inserted back into the legislation (which is unlikely at this point anyway), it wouldn't matter much, if at all, because the law would authorize your detention simply based on the DoD's decree that you are an enemy combatant, regardless of whether it was accurate. This is basically the legalization of the Jose Padilla treatment -- empowering the President to throw people into black holes with little or no recourse, based solely on his say-so.


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<table border="1" width="600" id="table1" bgcolor="#375D9C" cellspacing="1" height="100">
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<font face="arial black" size="5" color="#d90000">
The White House Warden</font><font face="tahoma" size="4" color="#0000FF"><b>
Congress may give the president the power to
lock up almost anyone he thinks is a terror threat.</font><font face="arial" size="2" color="000000">

BRUCE ACKERMAN is a professor of law and political science at Yale and author of "Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism."</font>
<font face="georgia" size="3" color="#000000">

By Bruce Ackerman

September 28, 2006 </b>

http://www.latimes.com/news/opinion/la-oe-ackerman28sep28,0,619852.story?coll=la-opinion-rightrail


BURIED IN THE complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.

This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops "during an armed conflict," it also allows him to seize anybody who has "purposefully and materially supported hostilities against the United States." This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.

Not to worry, say the bill's defenders. The president can't detain somebody who has given money innocently, just those who contributed to terrorists on purpose.

But other provisions of the bill call even this limitation into question. What is worse, if the federal courts support the president's initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.

Legal residents who aren't citizens are treated even more harshly. The bill entirely cuts off their access to federal habeas corpus, leaving them at the mercy of the president's suspicions.

We are not dealing with hypothetical abuses. The president has already subjected a citizen to military confinement. Consider the case of Jose Padilla. A few months after 9/11, he was seized by the Bush administration as an "enemy combatant" upon his arrival at Chicago's O'Hare International Airport. He was wearing civilian clothes and had no weapons. Despite his American citizenship, he was held for more than three years in a military brig, without any chance to challenge his detention before a military or civilian tribunal. After a federal appellate court upheld the president's extraordinary action, the Supreme Court refused to hear the case, handing the administration's lawyers a terrible precedent.

The new bill, if passed, would further entrench presidential power. At the very least, it would encourage the Supreme Court to draw an invidious distinction between citizens and legal residents. There are tens of millions of legal immigrants living among us, and the bill encourages the justices to uphold mass detentions without the semblance of judicial review.

But the bill also reinforces the presidential claims, made in the Padilla case, that the commander in chief has the right to designate a U.S. citizen on American soil as an enemy combatant and subject him to military justice. Congress is poised to authorized this presidential overreaching. Under existing constitutional doctrine, this show of explicit congressional support would be a key factor that the Supreme Court would consider in assessing the limits of presidential authority.

This is no time to play politics with our fundamental freedoms. Even without this massive congressional expansion of the class of enemy combatants, it is by no means clear that the present Supreme Court will protect the Bill of Rights. The Korematsu case — upholding the military detention of tens of thousands of Japanese Americans during World War II — has never been explicitly overruled. It will be tough for the high court to condemn this notorious decision, especially if passions are inflamed by another terrorist incident. But congressional support of presidential power will make it much easier to extend the Korematsu decision to future mass seizures.

Though it may not feel that way, we are living at a moment of relative calm. It would be tragic if the Republican leadership rammed through an election-year measure that would haunt all of us on the morning after the next terrorist attack.
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There really is no other way to put it. Issues of torture to the side (a grotesque qualification, I know), we are legalizing tyranny in the United States. Period. Primary responsibility for this fact lies with the authoritarian Bush administration and its sickeningly submissive loyalists in Congress. That is true enough. But there is no point in trying to obscure the fact that it's happening with the cowardly collusion of the Senate Democratic leadership, which quite likely could have stopped this travesty via filibuster if it chose to (it certainly could have tried).

I fully understand, but ultimately disagree with, the viewpoint, <a href="http://www.dailykos.com/storyonly/2006/9/27/17247/6012">well-argued by Hunter</a> and others, that this bill constitutes merely another step on a path we've long been on, rather than a fundamental and wholly new level of tyranny. Or, as Hunter put it: &quot;So this is a merely another slide down the Devil's gullet, not a hard swallow.&quot; But even with the extreme range of abuses the Bush presidency has brought, this is undeniably something different, and worse, by magnitude, not merely by degree.

There is a profound and fundamental difference between an Executive engaging in shadowy acts of lawlessness and abuses of power on the one hand, and, on the other, having the American people, through their Congress, endorse, embrace and legalize that behavior out in the open, with barely a peep of real protest. Our laws reflect our values and beliefs. And our laws are about to explicitly codify one of the most dangerous and defining powers of tyranny -- one of the very powers this country was founded in order to prevent.

One could cite an infinite number of sources to demonstrate what a profound betrayal this bill is of the fundamental promises of the American system of government. As Justice Jackson wrote in his concurring opinion in <a href="http://www.justia.us/us/344/443/">Brown v. Allen</a>, 344 U.S. 443, 533 (1953):

<blockquote><I><B>Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint. </I></b></blockquote>

Thomas Jefferson, in his <a href="http://etext.virginia.edu/jefferson/quotations/jeff1520.htm">letter</a> to Thomas Paine, 1789. ME 7:408, Papers 15:269, said: &quot;I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.&quot; And Patrick Henry <a href="http://teacher.sduhsd.k12.ca.us/mmontgomery/american_govt/antipapers/phenry.htm">warned us</a> well in advance about Government officials who would seek to claim the right to imprison people without a trial:
<blockquote><B>
Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty?</B> Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings--give us that precious jewel, and you may take everything else! ...Guard with jealous attention the public liberty. <B>Suspect everyone who approaches that jewel.</B></blockquote>

Consider the significant alteration to our structure of government that is embodied in this legislation regarding the treatment of detainees—the so-called habeas-stripping provision. In the midst of the debate between the White House and Republican Senators McCain, Graham, and Warner concerning Article 3 of the Geneva Conventions, the significance of the proposed habeas-stripping language (which remains in the “compromise” legislation agreed upon by the Senate Republicans and the White House) has arguably been underplayed. This is a serious mistake because the change that this provision would bring about to our constitutional heritage is of enormous significance.

Pursuant to the habeas-stripping provision, any non-U.S. citizen who has been or will be swept up by the military, the CIA, or our allies and transferred to a secret black-site or Guantanamo Bay, or rendered to another country where they are held and interrogated at the behest of the U.S. government, may no longer have any recourse to a U.S. court. As a result, the administration will have no obligation to put forward to an independent branch of government even a minimal explanation of the basis for a potentially indefinite detention. Nor will there exist any mechanism to check military or CIA abuses, including torture, of detainees. Whatever rights to humane treatment under the Geneva Conventions that remain following the “compromise” between the White House and the Republican Senators (and there is serious question as to whether this was indeed a compromise or a capitulation to the White House) will be meaningless since the habeas-stripping provision unquestionably ensures that those rights will find no day in court and no remedy.

This change works a significant destruction of our constitutional heritage for at least two reasons. First, the U.S. Constitution establishes as a fundamental structural premise that there will be three independent branches of government that serve as checks and balances upon each other. Removing entirely the independent judiciary from any role in checking the conduct of the Executive and Congress is a substantial alteration to that structural premise. Second, the writ of habeas corpus has, since this country’s founding, served as a particularly important guardian of liberty. Throughout our history, when the government has captured and detained individuals, the “Great Writ” has served the basic function of guarding against arbitrary government in the form of unjustified and secret detention. Here is how Alexander Hamilton in Federalist No. 84 (quoting Blackstone) powerfully described the critical importance of the writ of habeas corpus:
<blockquote>
To bereave a man of life …without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.</blockquote>

Moreover, these objections to the removal of habeas corpus are not merely academic debating points. We now know with certainty that the U.S. has detained for years innocent men at Guantanamo Bay, such as the five ethnic Uighurs who arrived there after being sold by Pakistani tribesmen for a bounty and the U.S. labeled them enemy combatants with no evidence supporting that designation. <div align="RIGHT"><!-- MSTableType="layout" --><img src="http://thinkprogress.org/wp-images/upload/thumb-guantanamo.gif" align="RIGHT"></div>It was in part because of the existence of habeas corpus jurisdiction and the pressure of the U.S. Supreme Court’s ruling in the Rasul v. Bush case, which held that non-citizens detained at Guantanamo had a right to file habeas petitions, that these men gained their freedom. The habeas-stripping legislation will overrule Rasul v. Bush, making future challenges to wrongful and indefinite detention impossible. <div align="LEFT"><!-- MSTableType="layout" --><img src="http://www.pbs.org/newshour/images/terrorism/july-dec06/9-28_detainee_bhead.jpg" align="LEFT"></div>We also know that innocent men such as Maher Arar and Khaled El-Masri have been tortured in the process of secret detention and extraordinary rendition either by or at the behest of the U.S. government. The habeas-stripping provision will eliminate any opportunity for the judiciary to ensure that existing and future detentions are not grounded on torture or other abuse.

In one sense, these observations are compelling because they define the core of what our country is supposed to be. But in another sense, they don't matter, because our Government is controlled by people and their followers who literally don't understand and, worse, simply do not believe in the defining values and principles of America. They know that this bill is a seizure of the most un-American powers imaginable, but their allegiance is to the acquisition of unlimited power and nothing else.

It was taken as an article of faith by Beltway Democrats that Americans want to relinquish these protections and radically change our system of government in the name of terrorism, so no political figures of national significance really tried to convince them they ought not to. We'll never really know whether Americans really wanted to do this or not because the debate was never engaged. It was ceded.
<span style="background-color: #FFFF00"><b>
And as a result, we are now about to vest in the President the power to order anyone -- U.S. citizen, resident alien or foreign national -- detained indefinitely in a military prison regardless of where they are -- U.S. soil or outside of the country. American detainees are cut off from any meaningful judicial review and everyone else is cut off completely. They can be subject to torture with no recourse, and all of this happens on the unchecked say-so of the administration. Really, what could be more significant than this?</b></span>

</font>

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http://www.pbs.org/perl/media.cgir?...h092806_220k.asf&s=987921&e=1660911&extn=.asx

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[African Herbsman]

Supreme Court sides with Guantanamo detainees.

High Court sides with Guantanamo detainees again

<!-- END HEADLINE --> <!-- BEGIN STORY BODY --> By MARK SHERMAN, Associated Press Writer 8 minutes ago

The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.
In its third rebuke of the Bush administration's treatment of prisoners, the court ruled 5-4 that the government is violating the rights of prisoners being held indefinitely and without charges at the U.S. naval base in Cuba. The court's liberal justices were in the majority.
Justice Anthony Kennedy, writing for the court, said, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."
Kennedy said federal judges could ultimately order some detainees to be released, but that such orders would depend on security concerns and other circumstances.
It was not immediately clear whether this ruling, unlike the first two, would lead to prompt hearings for the detainees, some of whom have been held more than 6 years. Roughly 270 men remain at the island prison, classified as enemy combatants and held on suspicion of terrorism or links to al-Qaida and the Taliban.
The administration opened the detention facility at Guantanamo Bay shortly after the Sept. 11, 2001, terrorist attacks to hold enemy combatants, people suspected of ties to al-Qaida or the Taliban.
The Guantanamo prison has been harshly criticized at home and abroad for the detentions themselves and the aggressive interrogations that were conducted there.
The court said not only that the detainees have rights under the Constitution, but that the system the administration has put in place to classify them as enemy combatants and review those decisions is inadequate.
The administration had argued first that the detainees have no rights. But it also contended that the classification and review process was a sufficient substitute for the civilian court hearings that the detainees seek.
In dissent, Chief Justice John Roberts criticized his colleagues for striking down what he called "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."
Justices Samuel Alito, Antonin Scalia and Clarence Thomas also dissented.
Scalia said the nation is "at war with radical Islamists" and that the court's decision "will make the war harder on us. It will almost certainly cause more Americans to be killed."
Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens joined Kennedy to form the majority.
Souter wrote a separate opinion in which he emphasized the length of the detentions.
"A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years," Souter said. "Hence the hollow ring when the dissenters suggest that the court is somehow precipitating the judiciary into reviewing claims that the military ... could handle within some reasonable period of time."
The court has ruled twice previously that people held at Guantanamo without charges can go into civilian courts to ask that the government justify their continued detention. Each time, the administration and Congress, then controlled by Republicans, changed the law to try to close the courthouse doors to the detainees.
The court specifically struck down a provision of the Military Commissions Act of 2006 that denies Guantanamo detainees the right to file petition of habeas corpus.
Habeas corpus is a centuries-old legal principle, enshrined in the Constitution, that allows courts to determine whether a prisoner is being held illegally.
The head of the New York-based Center for Constitutional Rights, which represents dozens of prisoners at Guantanamo, welcomed the ruling.
"The Supreme Court has finally brought an end to one of our nation's most egregious injustices," said CCR Executive Director Vincent Warren. "By granting the writ of habeas corpus, the Supreme Court recognizes a rule of law established hundreds of years ago and essential to American jurisprudence since our nation's founding."
In addition to those held without charges, the U.S. has said it plans to try as many as 80 of the detainees in war crimes tribunals, which have not been held since World War II.
A military judge has postponed the first scheduled trial pending the outcome of this case. The trial of Salim Ahmed Hamdan, Osama bin Laden's one-time driver, had been scheduled to start June 2.
Five alleged plotters of the Sept. 11 attacks appeared in a Guantanamo courtroom last week for a hearing before their war crimes trial, which prosecutors hope will start Sept. 15.
Navy Cmdr. Jeffrey Gordon, a Pentagon spokesman, said he had no immediate information whether a hearing at Guantanamo for a Canadian charged with killing a U.S. Special Forces soldier in Afghanistan would go forward next week as planned. Omar Khadr is one of 19 detainees so far facing the first U.S. war-crimes trials since the World War II era.
President Bush has said he wants to close the facility once countries can be found to take the prisoners who are there.
Presidential candidates John McCain and Barack Obama also support shutting down the prison.

http://news.yahoo.com/s/ap/20080612/ap_on_go_su_co/scotus_guantanamo

 

[QueEx]

<font size="5"><center>
Supreme Court rules Guantanamo prisoners
have right to sue in U.S. courts</font size><font size="4">

Repudiating a key tenet of the Bush administration’s
war-on-terror policy, the court’s 5-4 majority concluded
the foreigners held in Guantanamo Bay retain the same
habeas corpus rights as U.S. residents</font size></center>

A detainee stands outside a fenced recreation area at the
Camp Delta detention facility in Guantanamo Bay, Cuba, on
July 7, 2004.

McClatchy Newspapers
By Michael Doyle
Thursday, June 12, 2008

WASHINGTON — A sharply divided Supreme Court on Thursday ruled Guantanamo Bay detainees have the right to challenge their extended imprisonment in federal court, and struck down as inadequate an alternative review system set up by Congress.

Repudiating a key tenet of the Bush administration’s war-on-terror policy, the court’s 5-4 majority concluded the foreigners held in Guantanamo Bay retain the same habeas corpus rights as U.S. residents.


“Some of these petitioners have been in custody for the past six years with no definitive judicial determination as to the legality of their detention,” Justice Anthony Kennedy wrote for the majority. “Their access to the writ is necessary to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.”


The court’s long-awaited ruling in the combined cases known as Boumediene v. Bush and Al-Odah v. United States is the latest in a string of judicial defeats for the Bush administration, which has sought to exclude foreign prisoners from traditional legal protections.


The ruling also marks the first time in U.S. history that constitutional habeas corpus rights have been extended to alien fighters captured overseas.

The court’s conservative wing, including Chief Justice John Roberts Jr. and justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented, at times with sharp words of their own.

“The nation will live to regret what the court has done today,” Scalia wrote.

Algerian native Lakhdar Boumediene, Kuwaiti native Fawzi Khalid Abdullah Fahad Al Odah and the other detainees were seized abroad and have never been held on the U.S. mainland


In 2004, the Supreme Court ruled that the Guantanamo Bay detainees had a right to habeas corpus under a statute passed by Congress. Congress responded with a 2005 law that stripped federal courts of their jurisdiction, thereby blocking further habeas petitions. The Supreme Court then ruled that the 2005 law didn't apply retroactively to Guantanamo Bay petitions that had already been filed.


Congress returned with the Military Commissions Act of 2006, blocking all Guantanamo Bay habeas corpus cases.


In Latin, habeas corpus means "produce the body.” A legal principle dating back centuries, it enables prisoners to demand in court the legal justification and factual basis for their detention.


The Bush administration contended the men don't enjoy habeas corpus rights because they're foreigners and not imprisoned on U.S. soil. The United States has leased the 45-square-mile Guantanamo Bay property from Cuba since 1903. The court’s majority didn’t buy the argument.


“Our basic charter cannot be contracted away like this,” Kennedy wrote. “The Constitution grants Congress and the president the power to acquire, dispose of and govern territory, not the power to decide when and where its terms apply.”


Currently, the Guantanamo Bay prisoners go through a three-member Combatant Status Review Tribunal. The U.S. Court of Appeals for the District of Columbia Circuit then can review the tribunal's proceedings.


The military panels can rely on classified evidence that isn't given to the prisoners, potentially including information obtained through torture. The prisoners have "personal representatives," but not lawyers. The tribunals' officers are required to assume that the government's information is genuine and accurate


The court’s majority concluded the review process is “an inadequate substitute” for traditional habeas corpus review.

http://www.mcclatchydc.com/227/story/40872.html

 

[QueEx]

<font size="5"><center>
Obama orders halt to Guantánamo Bay tribunals</font size><font size="4">

• Military judge in case of Canadian suspect agrees to request
• Motion filed 'in interests of justice' hours after president sworn in</font sized></center>

An image of President Barack Obama is put up in the lobby of the head-
quarters of the US naval station at Guantánamo Bay. Photograph:
Brennan Linsley/AP


guardian.co.uk,
Matthew Weaver
Wednesday 21 January 2009

The US president, Barack Obama, has ordered a suspension of the controversial Guantánamo Bay military tribunals, in one of his first actions after being sworn in yesterday.

Within hours of taking office Obama's administration filed a motion to halt the war crimes trials for 120 days, until his new administration completes a review of the much-criticised system for trying suspected terrorists.

The move, which will suspend cases against 21 men, was made at the direction of Obama and Robert Gates, George Bush's defence secretary, who has kept his job in the new administration.

The first military judge to consider the motion, Army Colonel Patrick Parrish, granted the request to suspend the trial of Omar Khadr, a Canadian who is accused of killing an American soldier with a grenade in Afghanistan in 2002. Later another military judge will consider suspending the case of five men charged with plotting the September 11 attacks.

The halt to the tribunals was sought "in the interests of justice", the official request to the judges said.

Moazzam Begg, the former British detainee at Guantánamo Bay, urged Obama to go further. "There is no clear statement about this being stopped and the whole process being recognised as illegal," he said.

"For myself and other former detainees, until we see something tangible happening we are going to reserve judgment. That is because we have been here before – Bush has stated he wanted Guantánamo closed."

Human rights groups who were at Guantánamo Bay to observe this week's session of the tribunals welcomed the move.

"It's a great first step but it is only a first step," said Gabor Rona, the international director of Human Rights First. "It will permit the newly inaugurated president and his administration to undertake a thorough review of both the pending cases and the military commissions process generally.

"The suspension of military commissions so soon after President Obama took office is an indication of the sense of urgency he feels about reversing the destructive course that the previous administration was taking in fighting terrorism."

Jamil Dakwar, director of the human rights programme at the American Civil Liberties Union, said it was a positive step but noted: "The president's order leaves open the option of this discredited system remaining in existence."

Clive Stafford Smith, a human rights lawyer who has represented Guantánamo suspects, said: "It's great isn't it? There is no doubt it will stop the practices at Guantánamo. After all, Obama is now the commander-in-chief."

Speaking on BBC Radio 4, Stafford Smith said: "It's going to take some work but what he [Obama] is looking at, I think, here is a very clear-cut distinction between this administration and the last."

Relatives of victims of the September 11 attacks, who were also at the base to observe the hearings, have said they oppose any further delay in the trials of the men charged in the case.

The requested suspension came on the day a military judge adjourned the war crimes court just before Obama was sworn in by noting that the future of the commissions was in doubt.

Obama has pledged to close the Guantánamo Bay detention camp, which holds 245 men, and had been expected to suspend the widely criticised tribunals.

The president's nominee for attorney general, Eric Holder, has said the military commissions lack sufficient legal protections for defendants and that they could be tried in the US.

http://www.guardian.co.uk/world/2009/jan/21/barack-obama-guantanamo-bay-tribunals

 

[Fuckallyall]

IMO, while I disagree with torture as a good statecraft tool, the prisoners are not suject to the Geneva Conventions. The Conventions apply only to declared and uniformed soldiers. The detainees are not that. They also violate the Conventions by hiding among civilians, and dressing as civilians.

Remember, the entire purpose of the Conventions is to help prevent the massacre of civilians, and ensure each side knows how they are supposed to handle the wounded of the other.

They are also not subject to the US constitution, which only applies to citizens and residents of the US, of which the detainees are neither.

 

[muckraker10021]

↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑
Big Ups QueEx-
For reviving these threads, that contain years of truth-telling outlining the criminal violations and deceitful contempt for the US Constitution that the Bushit administration engaged in throughout its disastrous eight year seizure of power. All the pro Bushit sycophants arguments have been exposed & relegated to the same trash bin that contains the Third Reich’s Nazi propaganda. The final act is – will anyone be prosecuted??

 

[Spectrum]

The final act is – will anyone be prosecuted??

I don't think so and that is a real travesty.

 

[kjxxxx]

↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑
Big Ups QueEx-
For reviving these threads, that contain years of truth-telling outlining the criminal violations and deceitful contempt for the US Constitution that the Bushit administration engaged in throughout its disastrous eight year seizure of power. All the pro Bushit sycophants arguments have been exposed & relegated to the same trash bin that contains the Third Reich’s Nazi propaganda. The final act is – will anyone be prosecuted??

You are speaking as though the anti Bush arguments carry any weight to to the folks that are pro Bush.

There are no charges to be brought up and you need to get that in your head soon. Your anger about Bush don't mean shit. The history of this country is that few people have to do the dirty work so that others can talk the crap that you do without looking at the picture from many possible angles.

Obama will kill some innocent people as he tries to get Bin Laden or as he still keeps the troops in Iraq and Afganistan. You have to be careful what you want to convict Bush on because they will come back to backfire on the current and future presidents. I have stated before that if you convict Bush you also have to convict congress that gave him the power and didn't take it back and who still kept the war going. Now think about what you are asking. Think about any congress wanting to presecute the president, the staff, the military, the congress. How will they ever make another decision to go to war again knowing that they will be prosecuted.

It's time you start looking at shit from the other side and stop being so stuck on one side.


I didn't agree with a lot of Obama's politics during the campaign but I came around to seeing that it's still the same game of politics. Like Bush said "He did what he had to do to win, I might have done the same thing if I was in his shoes." ALL I AM DOING IS WATCHING AND SEEING HOW HIS POLICIES AFFECT ME AND HOW I CAN BENEFIT I AM GIVING THE MAN A CHANCE. HE IS PRESIDENT. AND THAT IS WHAT I TELL ANTI-OBAMA PEOPLE.

Obama's decisions will have heavy consequences and we will just have to give him a chance to do what he thinks is best with the information he has and hope that what he is doing is genuinely for the good of the country as I believed Bush believed.