Adonis Diaries

Posts Tagged ‘Military Commissions Act

Is indefinite detention Constitutional by any stretch of the imagination? Why detainees in Guantanamo prison camp not a priority  in Presidential campaign?  Is indefinite detention evil?  Like in the Guantanamo prison camp?

Shouldn’t Presidential contenders in the US give more priorities to the “Unconstitutional” activities done during the Bush reign and that are still going on with Obama?  Like indefinite detention in Guantanamo prison and the pursuing of drone attacks that are killing more civilians than the listed targeted “terrorists” in Pakistan, Afghanistan, Yemen, Somalia…?

This Wednesday will mark the ten-year anniversary of the opening of the US Guantanamo prison camp (located in Cuba).  In September 2006, the U.S. Congress passed the Military Commissions Act (MCA) which, among other things, not only authorized the detention of accused Terrorist suspects without a trial, but even explicitly denied all Guantanamo detainees the right of habeas corpus: the Constitutionally mandated procedure to allow prisoners, at least one opportunity to convince a court that they are being wrongfully held.

Habeas hearings are a much lower form of protection than a full trial: the government need not convince a jury beyond a reasonable doubt that someone is guilty, but rather merely present some credible evidence to justify the imprisonment. But the MCA denied even habeas rights to detainees.

Glenn Greenwald published this lengthy article “The evil of indefinite detention and those wanting to de-prioritize it”.  I  split this long article into two distinct posts, and this is on the indefinite detention case. Greenwald wrote (with slight editing and arrangement):

“Lakhdar Boumediene,  a camp’s former prisoner, sent an Op-Ed to the The New York Times.  Lakhdar recounts the gross injustice of his due-process-free detention, which lasted seven years. It was clear from the start that the accusations against this Bosnian citizen — who at the time of the 9/11 attack was the Red Crescent Society’s director of humanitarian aid for Bosnian children — were false.  Indeed, a high court in Bosnia investigated and cleared him of American charges of Terrorism. But U.S. forces nonetheless abducted him, tied him up, shipped him to Guantanamo, and kept him there for seven years with no trial.

Once the U.S. Supreme Court, in a 2008 decision bearing Boumediene’s name, ruled that this habeas-denying provision of the MCA was unconstitutional, and that Guantanamo detainees were entitled to habeas corpus review, was the U.S. government finally required to show its evidence against Boumediene in an actual court.

A Bush appointed federal judge ruled that there was no credible evidence to support the accusations against him, and he was finally released in May, 2009.

(1) Since the Supreme Court’s Boumediene decision, dozens of Guantanamo detainees like Boumediene were finally able to have a federal court review whether there was any credible evidence against them, and the vast majority have won their cases on the ground that there was no such evidence.  At one point, 75% of Guantanamo detainees prevailed, though the percentage is now somewhat lower. Had the Military Commissions Act been upheld as constitutional, Boumediene — and dozens of other innocent, now-released Guantanamo detainees — would undoubtedly still be indefinitely imprisoned.

If those who voted for the MCA had their way,  (including all GOP Senators except Lincoln Chafee along with 12 Democrats such as Jay Rockefeller, Debbie Stabenow, Robert Menendez, Frank Lautenberg, and current Interior Secretary Ken Salazar) Boumediene and dozens of other innocent detainees would still be wrongly imprisoned. The irony is that he Democrats had 46 Senators at the time and could have filibustered but did not.

Indeed, even many Democrats who voted against the bill anointed John McCain as their negotiator and were prepared to vote for the MCA until the very last weekend when some unrelated changes were made without their input and they were offended on that procedural ground. As Boumediene’s Op-Ed reflects, acting to empower the President to imprison people indefinitely with no charges is one of the most pernicious and dangerous steps a government can take, and yet the U.S. Congress in 2006 did exactly that.

(2) The Boumediene Supreme Court decision was a 5-4 vote; thus, four Justices of the U.S. Supreme Court voted to uphold the constitutionality of imprisoning human beings indefinitely, possibly for life, without even the minimal protections of a habeas hearing. Had Anthony Kennedy voted with his conservative colleagues, not only would Boumediene and dozens of others still be wrongly imprisoned, but the power which the U.S. has long taught its citizens is the defining hallmark of tyranny — the power to imprison without due process — would have been fully enshrined under American law.

(3) Post-Boumediene, indefinite detention remains a staple of Obama policy. The Obama DOJ has repeatedly argued that the Boumediene ruling should Not apply to Bagram (prison in Afghanistan), where — the Obama administration insists — it has the power to imprison people with no due process, not even a habeas hearing!

The Obama DOJ has succeeded in having that power enshrined. Obama has proposed a law to vest him with powers of “prolonged detention” to allow Terrorist suspects to be imprisoned with no trials. His plan for closing Guantanamo entailed the mere re-location of its indefinite detention system to U.S. soil, where dozens of detainees, at least, would continue to be imprisoned with no trial.

The President just signed into law the NDAA which contains — as the ACLU put it — “a sweeping worldwide indefinite detention provision,” meaning — as Human Rights Watch interpret — that “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.” Those held at Guantanamo will continue to receive at least a habeas hearing, but those held in other American War on Terror prisons will not.

(4) As we head into Election Year, there is an increasingly common, bizarre and self-evidently repellent tactic being employed by some Democratic partisans against those of us who insist that issues like indefinite detention (along with ongoing killing of civilians in the Muslim world) merit high priority. The argument is that to place emphasis on such issues is to harm President Obama (because he’s responsible for indefinite detention, substantial civilian deaths, and war-risking aggression) while helping competing candidates (such as Gary Johnson or Ron Paul) who vehemently oppose such policies.

So goes this reasoning, to demand that issues like indefinite detention andcivilian deaths be prioritized in assessing the presidential race is to subordinate the importance of other issues such as abortion, gay equality, and domestic civil rights enforcement on which Obama and the Democrats are better. Many of these commentators strongly imply, or now even outright state, that only white males are willing to argue for such a prioritization scheme because the de-prioritized issues do not affect them.

There are numerous glaring flaws with this divisive tactic. For one, it relies on a full-scale, deliberate distortion of the argument being made: Demanding that issues like indefinite detention, civilian deaths and aggressive war be given high priority in the presidential race does not remotely advocate the de-prioritization of any other issues. For another, many women and ethnic and racial minorities – as well as gay Americans — are making similar arguments about the need for these issues to receive substantial attention in the election.

More important, it’s irrational in the extreme to argue that self-interest or “privilege” would cause someone to want to prioritize issues like indefinite detention and civilian casualties given that the civil liberties and anti-war advocates being so accused are extremely unlikely themselves to be affected by the abuses they protest.

It isn’t white males being indefinitely detained, rendered, and having their houses and cars exploded with drones — the victims of those policies are people like Boumediene, or Gulet Mohamed, or Jose Padilla, or Awal Gul, or Sami al-Haj, or Binyam Mohamed, or Afghan villagers, or Pakistani families, or Yemeni teenagers.

When you spend the vast bulk of your time working against the injustices imposed almost exclusively on minorities and the marginalized — as anyone who works on these war and civil liberties issues by definition does — it’s reprehensible for someone to deploy these sorts of accusatory tactics, all in service of the shallow goal of partisan loyalty enforcement. Those who were actually driven primarily by privileged self-interest would want to de-prioritize these issues in a presidential campaign, not insist on their vital importance.

And that is this real point here: what’s so warped about those who employ this tactic for partisan ends is how easily it could be used against them, rather than by them. All of the authors of the three accusatory examples linked above (Carpentier, Pollitt, and Matthews) — as well as most of those Democrats who have now sunk to explicitly arguing that such matters are unimportant — are white and non-Muslim. To apply their degraded rhetoric to them, one could easily say:

Of course they don’t consider indefinite detention, invasions and occupations, and civilian slaughter to be disqualifying in a President or even meriting substantial attention in the presidential election — of course they will demand that everyone faithfully support a President who continues to do these things aggressively — because, as non-Muslims, they’re not the ones who will be imprisoned for years with no trial or have their children blown to bits by a U.S. drone or air strike, so what do they care?

I don’t employ or endorse that wretched reasoning, but those who do — such as the authors of the above-linked accusations — should have it applied to them and their own political priorities; they deserve to reap what they are sowing.

Note: The NYT has published an Op-Ed from another released, innocent Guantanamo detainee, Murat Kurnaz, that is just as harrowing and moving. It isn’t the people who are demanding these injustices receive high priority who have to answer charges of race-and-privilege-based self-interest and indifference; if anyone should answer those scurrilous charges, it’s those insisting that these abuses are not disqualifying and can and should be de-prioritized in the 2012 election.

Two buttocks in same pant: Democrat and Republican?

Do Democrat and Republican elites and mass media bosses cover one another back in times of “emergency”? Like mass upheaval and crimes against humanity…, in order to defend an immunity that they might one day need themselves?

This is an excerpt of  published on Nov. 1, under “America’s Elites Look Out for Each Other

“Given the clarity of this law [Article 2 of the Convention Against Torture] and its multiple reiterations, what can explain the resolve of the political and media class to ignore it?

Why do ostensibly adverse factions leap to one another’s defense even in cases of egregious criminality, with Democrats shielding Republicans, media figures demanding no transparency or accountability for political officials, self-proclaimed populist politicians devoting themselves to the protection of Wall Street?

One easy answer is that those factions are not really adversaries, at least not in any way that counts.

All their members belong to the same class — the powerful and the elite — and thus are motivated to defend an immunity that they might one day need themselves.

But the unanimous support for Bush-era war criminals is motivated by more than just shared self-interest: it has at least as much to do with shared guilt.

Bush officials did not commit their crimes by themselves. Virtually, the entire Washington establishment supported or at least enabled the lawbreaking.

Leading members of the Democratic Party were implicated in various ways.

In July 2008, the reporter Jane Mayer was asked in a Harper’s interview why there was so little push by Democrats — the “opposition party” — for investigations into Bush programs of torture, warrantless eavesdropping, and the like. She pointed out that one “complicating factor is that key members of Congress sanctioned [these activities], so many of those who might ordinarily be counted on to lead the charge are themselves compromised.”

Indeed, key congressional Democrats were contemporaneously briefed on what the Bush administration was doing, albeit often in vague and unspecific ways. The fact that they did nothing to stop the illegal plans, and often explicitly approved of them, obviously gives leading Democratic officials an incentive to block any investigations or judicial proceedings.

In December 2007, the Washington Post reported that, back in 2002, the CIA had briefed a bipartisan group of Congress people on its use of waterboarding and other torture tactics. That group included the ranking members of both the Senate and House intelligence committees: Jay Rockefeller and Nancy Pelosi.

Yet, reported the Post, “no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder.”

Similarly, several leading Democrats, including Rockefeller and Representative Jane Harman, were told that the Bush administration was eavesdropping on Americans without warrants. Rockefeller did nothing to stop it, and Harman actually became the administration’s leading defender.

After the illegal program was revealed by the New York Times, Jane Harman publicly stated that the wiretapping was “both necessary and legal.”

Two years after reporter Eric Lichtblau coauthored the story revealing the Bush NSA program, he revealed that Harman had attempted to convince him not to write about the program on the ground that it was so vital. Appearing on MSNBC in June 2008, the law professor Jonathan Turley pointed out the logical result of this bipartisan support for the crimes.

There’s no question in my mind that there is an obvious level of collusion here. We now know that the Democratic leadership knew about the illegal surveillance program almost from its inception. Even when they were campaigning about fighting for civil liberties, they were aware of an unlawful surveillance program as well as a torture program. And ever since that came out, the Democrats have been silently trying to kill any effort to hold anyone accountable because that list could very well include some of their own members.

As Mayer put it, “Figures in both parties would find it very hard at this point to point the finger at the White House, without also implicating themselves.”

The opinion-making elites were similarly implicated. Very few media figures with any significant platform can point to anything they did or said to oppose the lawbreaking — and they know that.

Indeed, some of the nation’s most prominent “liberal commentators” vocally supported Bush’s policies.

It was Newsweek’s Jonathan Alter who became the first establishment media figure to openly advocate torturing prisoners.  Jonathan Alter, in his November 4, 2001, Newsweek column (headlined “Time to Think About Torture”), began by proclaiming that “in this autumn of anger, even a liberal can find his thoughts turning to … torture” and went on to suggest “transferring some suspects to our less squeamish allies.”

It was Alan Dershowitz who argued for the creation of “torture warrants,” proposing for cases such as the proverbial “ticking time bomb” that “judicially monitored physical measures designed to cause excruciating pain” should be made “part of our legal system.”

It was the writers of the Washington Post editorial page who hailed the Military Commissions Act — the single most repressive law enacted during the Bush era, crucial parts of which the Supreme Court ultimately struck down as unconstitutional — as a “remarkably good bill” that “balances profound and difficult interests thoughtfully and with considerable respect both for the uniqueness of the current conflict and for the American tradition of fair trials and due process.”

When it comes to media figures who cheered on Bush’s lawlessness and then self-serve demanded that there be no investigations, the Washington Post’s David Broder is a particularly illustrative case. In April 2009, he wrote a column dramatically denouncing the Bush presidency as “one of the darkest chapters of American history, when certain terrorist suspects were whisked off to secret prisons and subjected to waterboarding and other forms of painful coercion in hopes of extracting information about threats to the United States.”

Despite this acknowledgment, Broder in the same column opposed any criminal investigations of the Bush torture regime, proclaiming Obama “right to declare that there should be no prosecution of those who carried out what had been the policy of the United States government.”

Given Broder’s acknowledgment of how horrific Bush’s presidency had been, what explains his simultaneous opposition to investigations? Like most of his journalistic colleagues, the dean of the Washington press corps never sounded the alarm while this lawlessness was taking place, when it mattered. He did the opposite, repeatedly mocking those who warned of how radical and dangerous the Bush administration was.

As torture went on, David Broder continuously defended what Bush officials were doing as perfectly normal and well within the bounds of legitimate policy.

After the 2004 election, Broder dismissed those who were arguing that Bush and Cheney had succeeded in entrenching presidential lawlessness. “Checks and balances are still there,” he insisted. “The nation does not face ‘another dark age,’ unless you consider politics with all its tradeoffs and bargaining a black art.

In 2006, he derided those who warned that the “war on terror” had ushered in an era of extreme lawlessness by sarcastically proclaiming, “I’d like to assure you that Washington is calm and quiet this morning, and democracy still lives here,” and Broder denounced Bush critics “who get carried away by their own rhetoric.”

Broder’s 2009 recognition that the Bush presidency was “one of the darkest chapters of American history” came, of course, with no acknowledgment of his 2004 declaration that “the nation does not face ‘another dark age.’”

So when these media and political elites are defending Bush officials, minimizing their crimes, and arguing that no one should be held accountable, they’re actually defending themselves as well. Just as Jane Harman and Jay Rockefeller can’t possibly demand investigations for actions in which they were complicit, media stars can’t possibly condemn acts that they supported or toward which, at the very best, they turned a blissfully blind eye.

Bush officials must be exonerated, or at least have their crimes forgotten — look to the future and ignore the past, the journalists all chime in unison — so that their own involvement might also be overlooked.

In this world, it is perfectly fine to say that a president is inept or even somewhat corrupt. A titillating, tawdry sex scandal, such as the Bill Clinton brouhaha, can be fun, even desirable as a way of keeping entertainment levels high.

Such revelations are all just part of the political cycle. But to acknowledge that our highest political officials are felons (which is what people are, by definition, who break our laws) or war criminals (which is what people are, by definition, who violate the laws of war) is to threaten the system of power, and that is unthinkable.

Above all else, media figures are desperate to maintain the current power structure, as it is their role within it that provides them with prominence, wealth, and self-esteem. Their prime mandate then becomes protecting and defending Washington, which means attacking anyone who would dare suggest that the government has been criminal at its core.

The members of the political and media establishment do not join forces against the investigations and prosecutions because they believe that nothing bad was done. On the contrary, they resist accountability precisely because they know there was serious wrongdoing — and they know they bear part of the culpability for it.

The consensus mantra that the only thing that matters is to “make sure it never happens again” is simply the standard cry of every criminal desperate for escape: “I promise not to do it again if you don’t punish me this time“.

And the Beltway battle cry of “look to the future, not the past!” is what all political power systems tell their subjects to do when they want to flush their own crimes down the memory hole.

In the long run, immunity from legal accountability ensures that criminality and corruption will continue. Vesting the powerful with license to break the law guarantees high-level lawbreaking. Indeed, it encourages such behavior. One need only look at what’s happened in the United States over the last decade to see the proof.” End of the excerpt.

Note 1: With Liberty and Justice for Some: How the Law is Used to Destroy Equality and Protect the Powerful by Glenn Greenwald, published October 25th by Metropolitan Books, an imprint of Henry Holt and Company, LLC. Copyright © 2011 by Glenn Greenwald. All rights reserved.

Note 2: https://adonis49.wordpress.com/2010/09/26/part-3-election-laws-regulations-and-procedurescan-capitalist-systems-be-reformed/


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