There Is Much To Be Said For The Law; How About Enforcing It?
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Tuesday, December 29, 2009
Military Commission Trials: Sources of Rights
The Fifth Amendment to the Constitution provides that “no person shall be ... deprived of life, liberty, or property, without due process of law.” Due process includes the opportunity to be heard whenever the government places any of these fundamental liberties at stake. The Constitution contains other explicit rights applicable to various stages of a criminal prosecution. Criminal proceedings provide both the opportunity to contest guilt and to challenge the government’s conduct that may have violated the rights of the accused. The system of procedural rules used to conduct a criminal hearing, therefore, serves as a safeguard against violations of constitutional rights that take place outside the courtroom, for example, during arrests and interrogations.
The Bill of Rights applies to all citizens of the United States and all aliens within the United States.10 However, the methods of application of constitutional rights, in particular the remedies available to those whose rights might have been violated, may differ depending on the severity of the punitive measure the government seeks to take and the entity deciding the case. The jurisdiction of various entities to try a person accused of a crime could have profound effect on the procedural rights of the accused. The type of judicial review available also varies and may be crucial to the outcome.
International law also contains some basic guarantees of human rights, including rights of criminal defendants and prisoners. Treaties to which the United States is a party are expressly made a part of the law of the land by the Supremacy Clause of the Constitution11 and may be codified through implementing legislation,12 or in some instances, may be directly enforceable by the judiciary.13 International law is incorporated into U.S. law,14 but does not take precedence over statute. The law of war, a subset of international law, applies to cases arising from armed conflicts (i.e., war crimes).15 It remains unclear how the law of war applies to the current hostilities involving non-state terrorists, and the nature of the rights due to accused terrorist/war criminals may depend in part on their status under the Geneva Conventions. The Supreme Court has ruled that Al Qaeda fighters are entitled at least to the baseline protections applicable under Common Article 3 of the Geneva Conventions,16 which includes protection from the “passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”17
Endnotes
10 Zadyvydas v. Davis, 533 U.S. 678, 693 (2001). ("the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent”); Wong Wing v.United States, 163 U.S. 228, 238 (1896) ("all persons within the territory of the United States are entitled to the protection guarantied by [the Fifth and Sixth Amendments], and … aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law”).
11 U.S. CONST. Art. VI (“[A]ll Treaties ... shall be the Supreme Law of the Land; ...”).
12 See, e.g. 18 U.S.C. § 2441 (War Crimes Act).
13 Treaty provisions that are self-executing are binding on the courts in the absence of implementing legislation. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 113 (1987). Most human rights treaties, however, are not likely to be held self-executing.
14 Id. § 111.
15 For a brief explanation of the sources of the law of war, see generally CRS Report RL31191, Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions, by Jennifer K. Elsea.
16 Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006).
17 The Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, art. 3 § 1(d), 6 U.S.T.3317). The identical provision is included in each of the four Geneva Conventions and applies to any “conflict not of an international character.” The majority declined to accept the President’s interpretation of Common Article 3 as inapplicable to the conflict with Al Qaeda and interpreted the phrase “in contradistinction to a conflict between
nations,” which the Geneva Conventions designate a “conflict of international character.”
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Labels: law
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Who's To Blame For Ex-Gitmo Prisoners Behind Terror Plot?
By Heather Horn on December 29, 2009 10:12am
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- Good One, Republicans At left-leaning Americablog, John Aravosis suggests "Mr. Cheney will have some explaining to do." He sneers at "Republicans [who] have a problem with President Obama wanting to try suspected terrorists in US courts. Maybe if we promise the maximum sentence will be 'art therapy,' the Republicans will come on board."
- Will Cheney Finally Go Away Now? BarbinMD of the liberal Daily Kos wonders if Dick Cheney "will ... again be booked on Fox News to peddle more criticism of President Obama, or [if] ... this little 'oops' moment [will] mean that Dick is slithering back to his undisclosed location."
- Don't Let This Mess Up Prisoner Release Plans "It's inevitable," begins Jeralyn at TalkLeft, "some of the released Guantanamo detainees may become militant or revert to militantism, particularly when some were tortured and all were subjected to overly harsh interrogation methods and conditions of confinement. It's a fallacy to say most of them will. Refusing to release remaining detainees with no demonstrated ties to terrorism would be a mistake."
- Only More of the Same Coming "Thanks to Obama's progressive view," writes conservative blogger Dan Riehl, "we're looking to send up to 80 Gitmo detainees back to Yemen? Will we provide them with coloring books, or perhaps decoupage supplies?"
- Thank You, Liberals William Teach of right-wing blog Stop the ACLU openly blames liberals for the event: "If the Left weren't such raving wackjobs," he writes, apparently failing to focus on the November, 2007 date of the terrorists' release, "... these folks would still be sitting at Club Gitmo."
- Less Partisan Takes Hot Air's Allahpundit doesn't let either the previous nor the current administration off the hook: "at least The One has learned from Bush's terrible folly here, right? Wrong." He wonders what Plan B should be for remaining detainees. Charles Johnson of Little Green Footballs has an idea: try them in civilian court. Saying that, until now, he's been undecided on the notion, Johnson declares, "I have a lot more faith in the American criminal justice system than I do in Saudi Arabia’s 'art therapy' program."
Yoo Never Met Bush but Would Recommend He Torture People All Over Again
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Welcome to Orwell’s World 2010 By John Pilger
Posted on December 30, 2009 | By John Pilger
December 30, 2009 – “Information Clearing House“
In Nineteen Eighty-Four, George Orwell described a superstate called Oceania, whose language of war inverted lies that “passed into history and became truth. ‘Who controls the past’, ran the Party slogan, ‘controls the future: who controls the present controls the past’.”
Barack Obama is the leader of a contemporary Oceania. In two speeches at the close of the decade, the Nobel Peace Prize winner affirmed that peace was no longer peace, but rather a permanent war that “extends well beyond Afghanistan and Pakistan” to “disorderly regions and diffuse enemies”. He called this “global security” and invited our gratitude. To the people of Afghanistan, which America has invaded and occupied, he said wittily: “We have no interest in occupying your country.”
In Oceania, truth and lies are indivisible. According to Obama, the American attack on Afghanistan in 2001 was authorised by the United Nations Security Council. There was no UN authority. He said the “the world” supported the invasion in the wake of 9/11 when, in truth, all but three of 37 countries surveyed by Gallup expressed overwhelming opposition. He said that America invaded Afghanistan “only after the Taliban refused to turn over [Osama] bin Laden”. In 2001, the Taliban tried three times to hand over bin Laden for trial, reported Pakistan’s military regime, and were ignored. Even Obama’s mystification of 9/11 as justification for his war is false. More than two months before the Twin Towers were attacked, the Pakistani foreign minister, Niaz Naik, was told by the Bush administration that an American military assault would take place by mid-October. The Taliban regime in Kabul, which the Clinton administration had secretly supported, was no longer regarded as “stable” enough to ensure America’s control over oil and gas pipelines to the Caspian Sea. It had to go.
Obama’s most audacious lie is that Afghanistan today is a “safe haven” for al-Qaeda’s attacks on the West. His own national security adviser, General James Jones, said in October that there were “fewer than 100” al-Qaeda in Afghanistan. According to US intelligence, 90 per cent of the Taliban are hardly Taliban at all, but “a tribal localised insurgency [who] see themselves as opposing the US because it is an occupying power”. The war is a fraud. Only the terminally gormless remain true to the Obama brand of “world peace”.
Beneath the surface, however, there is serious purpose. Under the disturbing General Stanley McCrystal, who gained distinction for his assassination squads in Iraq, the occupation of one of the most impoverished countries is a model for those “disorderly regions” of the world still beyond Oceania’s reach. This is a known as COIN, or counter-insurgency network, which draws together the military, aid organizations, psychologists, anthropologists, the media and public relations hirelings. Covered in jargon about winning hearts and minds, its aim is to pit one ethnic group against another and incite civil war: Tajiks and Uzbecks against Pashtuns.
The Americans did this in Iraq and destroyed a multi-ethnic society. They bribed and built walls between communities who had once inter-married, ethnically cleansing the Sunni and driving millions out of the country. The embedded media reported this as “peace”, and American academics bought by Washington and “security experts” briefed by the Pentagon appeared on the BBC to spread the good news. As in Nineteen Eighty-Four, the opposite was true.
Something similar is planned for Afghanistan. People are to be forced into “target areas” controlled by warlords bankrolled by the Americans and the opium trade. That these warlords are infamous for their barbarism is irrelevant. “We can live with that,” a Clinton-era diplomat said of the persecution of women in a “stable” Taliban-run Afghanistan. Favored western relief agencies, engineers and agricultural specialists will attend to the “humanitarian crisis” and so “secure” the subjugated tribal lands.
That is the theory. It worked after a fashion in Yugoslavia where the ethnic-sectarian partition wiped out a once peaceful society, but it failed in Vietnam where the CIA’s “strategic hamlet program” was designed to corral and divide the southern population and so defeat the Viet Cong — the Americans’ catch-all term for the resistance, similar to “Taliban”.
Behind much of this are the Israelis, who have long advised the Americans in both the Iraq and Afghanistan adventures. Ethnic-cleansing, wall-building, checkpoints, collective punishment and constant surveillance – these are claimed as Israeli innovations that have succeeded in stealing most of Palestine from its native people. And yet for all their suffering, the Palestinians have not been divided irrevocably and they endure as a nation against all odds.
The most telling forerunners of the Obama Plan, which the Nobel Peace Prize winner and his strange general and his PR men prefer we forget, are those that failed in Afghanistan itself. The British in the 19th century and the Soviets in the 20th century attempted to conquer that wild country by ethnic cleansing and were seen off, though after terrible bloodshed. Imperial cemeteries are their memorials. People power, sometimes baffling, often heroic, remains the seed beneath the snow, and invaders fear it.
“It was curious,” wrote Orwell in Nineteen Eighty-Four, “to think that the sky was the same for everybody, in Eurasia or Eastasia as well as here. And the people under the sky were also very much the same, everywhere, all over the world … people ignorant of one another’s existence, held apart by walls of hatred and lies, and yet almost exactly the same people who … were storing up in their hearts and bellies and muscles the power that would one day overturn the world.”
Howard Zinn: On The Stupidity Of War (2007)
The Chilcot ‘Inquiry’: A Theatre Of The Absurd By William Bowles
Richard Engel: New Pentagon Report + Afghan Soldier Opens Fire, Kills Us Trooper
Afghanistan On Dandelion Salad
Meet The New Boss The Same As The Old Boss
Thoughts Of What We Have Been, Are And Perhaps Yet Can Become…
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