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Improvisational Justice

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Posted on Jun 7, 2007

By Marie Cocco

WASHINGTON—Now we’ve bungled our own kangaroo courts.

    Two military judges, acting separately in the cases of two alleged terrorists, have dismissed war crimes charges against both. The legal reasoning is technical. But this breakdown is no technicality—it is farce.

    The detainees, Omar Khadr, a Canadian who was 15 at the time he was picked up in Afghanistan and flown to the U.S. military detention camp at Guantanamo Bay, Cuba, was charged with lobbing a grenade that killed an American soldier, as well as with spying and other terrorism-related offenses. Salim Ahmed Hamdan, a Yemeni, is said to have been Osama bin Laden’s driver and bodyguard.

    Their cases were dismissed when the military judges ruled that the Pentagon had not properly determined the two were “unlawful enemy combatants”—and thus eligible to be tried for war crimes. The two were designated in a different, earlier Pentagon review only as “enemy combatants.” Lawful combatants who kill opposing forces can’t be tried for war crimes.

    This is what happens when you make up the rules as you go along.

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    The origins of the semantic squabble lie in the Bush administration’s rejection of the Geneva Conventions, the longstanding and internationally recognized system for classifying people picked up on the battlefield, detaining them and determining their fate. Having thrown out the rule book, the Bush administration devised its own seat-of-the-pants schemes for those it detains in the so-called war on terror.

    “The chaos we’re seeing now is a direct result of that,” Jameel Jaffer, a human rights monitor for the American Civil Liberties Union, said in a telephone interview as he was leaving Guantanamo, where he’d monitored the proceedings.

    Here is how it has gone: Five years after the administration opened the detention camp, not a single suspected terrorist has been tried, found guilty and sentenced. Only David Hicks, an Australian who made sordid allegations of abuse, pleaded guilty and returned home last month to serve nine months in jail there. The Hicks deal was engineered between the Bush administration and Australian Prime Minister John Howard, whose re-election prospects have been weighted down by the Hicks case and by the prime minister’s supportive relationship with Bush in general.

    No court—not the U.S. Supreme Court, and now not even the Pentagon’s own court, which was set up by Congress last year in pre-election legislation—has found the Bush procedures to be lawful.

    The newfangled Military Commissions Act of 2006—a nightmarish hodgepodge of rules that mock basic concepts of what most Americans would recognize as justice—was hastily cobbled together after the Supreme Court rejected the administration’s first effort to set up such a system. Now the quick-fix replacement has failed.

    The Pentagon says it believes its new procedures are valid and is considering an appeal. This would be another detour on the way to the inevitable: The overdue closure of the Guantanamo penal colony.

    Of more than 750 men who once were imprisoned there, only about 380 remain. The rest have been transferred back to their home countries where, in the vast majority of cases, their governments have determined that the former prisoners pose no risk. They have resumed their lives without much indication that they were ever among “the worst of the worst,” as former Defense Secretary Donald Rumsfeld famously called them.

    Robert Gates, the current Pentagon chief, has urged Congress and the White House to work together on a system for closing the camp and transferring only those detainees who must still be held to prisons in the United States. Congress now fiddles with several proposals, notably measures introduced by Sens. Tom Harkin, D-Iowa, and Dianne Feinstein, D-Calif., to shutter the shameful place and salvage some measure of American dignity by allowing those who must be tried to have their cases heard in standard military or civilian courts.

    What we do not need is another attempt by the White House and its blinkered allies on Capitol Hill to rewrite a new legal “system” for Guantanamo to circumvent the objections that the Pentagon’s own judges have thrown up. We’ve had five years of such fiddling. And all the while, the United States has done nothing but burn a black mark of shame upon itself.

    Marie Cocco’s e-mail address is mariecocco(at symbol)washpost.com.

    © 2007, Washington Post Writers Group


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By johnofportland, June 14, 2007 at 4:53 pm #

JNagarya -

Scared ya, huh?  If it walks like a duck… 

“Undisclosed location” is in quotes because we know about it.  The phrase is Bush administration doublespeak - they say it when telling the brain-blanked press where Cheney’s gone. Bear in mind, Cheney and Rummy have been up to this since Reagan - documented in Iran Contra Hearings, not some “wingnut whatever” review.

For the record, conspiracy stuff is generally pretty silly - except when it is true (e.g. Gonzales and the attorneys, or maybe GWB and Company headed for Iraq). 

Also recall, there were probably many folks aboard Titanic who undoubtedly denied that it was going down. Maybe it made them feel better as the ice water closed over their heads.

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By Skruff, June 14, 2007 at 9:38 am #
(Unregistered commenter)

77883 by JNagarya on 6/14 at 12:51 am

“It is exactly such right-wingnut-originated anti-gum’mint socially corrosive bunk that obscures reality and insidiously and destructively undermines faith in—and support for—our system of gov’t.”

Of course “faith in—and support for—our system” of government is not “undermined” by the obvious:

The stolen elections, the negligence of the Katrina response, the failure to secure borders, the Walmart sponsored build up of China’s military machine, NAFTA, WTO, The corporate greed and huberous of purchasing government officials to do the bidding of the 1% who control 90% of the wealth but pay only 40% of all taxes?

No couldn’t be that. must be the “right-wingnut-originated anti-gum’mint socially corrosive bunk.”

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By JNagarya, June 14, 2007 at 4:51 am #

“Mount Weather is the premier “undisclosed location” where Cheney goes to plan the domestic mechanisms of the ShadowGov (he went there when 9-11 went down).  Rumsfeld still has an office near the Pentagon, all his security clearances, and a large staff working on internment and interrogation, and martial law, among other things (which we don’t know about).”

If we “don’t know about ” it, then how do we also know about it?

As is usual for conspirabunk, there is always “evidence” for the conspiracy—even though the “evidence” can never be proven to exist, let alone located—and we know the contents and meaning of the “evidence” even though we don’t know where it is, so don’t know what it is.

It is exactly such right-wingnut-originated anti-gum’mint socially corrosive bunk that obscures reality and insidiously and destructively undermines faith in—and support for—our system of gov’t.  Beyond irresponsible, it is hateful and stupid.

Such irresponsible infotainment is for children, not for adults.  While Rome burns, you fools pour on the gasoline.

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By johnofportland, June 10, 2007 at 11:46 am #

Cyrene - thanks for “seeing the comet” too.  It’s like the “elephant in the livingroom” in the alcoholism and addiction metaphor - nobody wants to see it (not even me).  I believe Chertoff would be the National Continuity Coordinator, #3 in the line of presidential succession.  Would that be the Adolph Eichmann position on the team?

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By cyrena, June 10, 2007 at 1:57 am #

john of portland, What an excellent post!! I never knew about Mount Weather, though now that you say where it is, it would put it close to Cheney’s big spread there…I think.

And, you were reading my mind, because this whole sordid saga of the distruction of a nation (or two or three) has been accomplished in real time. I frequrently compared all of this stuff to those old Robert Ludhlum novels from the 80’s. Then I gradually starting finding far greater comparisons to the real life history of various Mafia organizations of the past, and it’s all just too much, with the torture and the renditions, and all of that.

And then all of the fear tactics, and finding alledged terrorists under every back porch, and missing the ones that we should have easily spotted before they could do harm.

So for years now, as one more outrageous thing after another happens, I still have to keep asking myself if I’ve somehow fallen down the rabbit hole.

On this recent directive you wrote:

  “Under Directive NSPD-51/HSPD-20 a new National Continuity Coordinator takes over all”.....

which is basically everything. When I read this at the time, I got a serious case of fright, just like all of the other times, with the gradual gutting of the Constitution.

I think the person that would be in charge is Frances Townsend. (or at least all of these departments and everything that the directive includes). Does it say what Chernoff’s “job” would be? I can’t remember anything other than that he has apparently been the one to put it together? I’m still missing how he even gets involved in something like this.

But then, it’s another one of those “unprecedenteds” that we keep having, which is why I keep having to ask myself if I’ve fallen down the rabbit hole.

I’ve looked at escape routes, and nothing is promising.

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By johnofportland, June 9, 2007 at 7:11 pm #

It reads like a cheap novel:

The ShadowGov is highly secretive, although it surfaces occasionally.  It was seen in 1978 when House Democrat Jack Brooks futilely condemned it during Iran-Contra Hearings exposing Reagan’s dirty secrets.  Dick Cheney and Donald Rumsfeld were architects of a duplicate government at Mount Weather, the FEMA command center near Bluemont, Virginia.

They continued work on it under George H. W. Bush, and under George Jr. they are institutionalizing it - with 9-11 instead of the Cold War as excuse for subverting the Constitution– but still bypassing the nation’s legitimate duly elected representatives, and now supported by their new ideologically impaired Supreme Court.
http://en.wikipedia.org/wiki/Continuity_of_government
“Rumsfeld and Cheney were principal figures in one of the most highly classified programs of the Reagan administration.  Under it, the administration furtively carried out detailed planning exercises to establish a new American ‘president’ and his staff, outside and beyond the specifications of the U. S. Constitution…” - Mann, J. Rise of the Vulcans: The History of Bush’s War Cabinet (Viking Adult, 2004).
Mount Weather is the premier “undisclosed location” where Cheney goes to plan the domestic mechanisms of the ShadowGov (he went there when 9-11 went down).  Rumsfeld still has an office near the Pentagon, all his security clearances, and a large staff working on internment and interrogation, and martial law, among other things (which we don’t know about).
http://thinkprogress.org/2007/01/25/rumsfeld-consultant/
http://www.geocities.com/Area51/Shadowlands/6583/bases075.html?200721
http://en.wikipedia.org/wiki/Mount_Weather
http://www.Bartcop.com reports:  Without so much as a press statement, President Bush signed a directive on May 9, 2007 that grants near dictatorial powers to the president in the event of a to-be-identified “national emergency” declared by the president. In layman’s terms, Bush becomes our dictator so he can direct any and all government and business activities until he declares the emergency over. Under Directive NSPD-51/HSPD-20 a new National Continuity Coordinator takes over all government functions and directs all private sector activities to ensure we will emerge from the emergency with an “enduring constitutional government,” but makes no meaningful reference whatsoever to Congress, suggesting that the powers of the executive order can be implemented without any congressional approval or oversight. It puts the Homeland Security Director third in the succession chain - (not Speaker Pelosi).  By this internal hollowing out, they don’t need a military coup to take power.  Recall, the Roman senate had a constitutional position under the Caesars, but it wasn’t worth much.

Add to the pot: send the Army and National Guard out of the country to a hopeless war; employ thousands of “Blackwater” private security forces for foreign and domestic use (see New Orleans, and Kansas - where they also practiced martial law); and, shut off habeas corpus and the posse Comitatus law.  Heckuva mise en scene for our bestseller. 
Reporting the directive on Air America, Thom Hartmann pointed out that it’s the conditional as opposed to absolute statements that most threaten us.  It’s weasel speak, and the courts and congress ought to be in the loop (at least as much as Michael Chertoff (?) - for gosh sakes). 
An Italian Renaissance astronomer once saw a new comet through his telescope, then called everyone in his household, then passersby off the street, until their confirmations made him certain that he really saw what he saw.  Maybe there isn’t a comet here, but it seems problematic taken all together.  Gonzogate, and the sado-masochistic disaster at Abu Graib are ultimately related. To square this five billion pound monster blocking us from a peaceful and progressive future, the whole country must blithely ignore its collective dysfunction daily.

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By Case Wagenvoord, June 9, 2007 at 5:22 pm #

It is indeed ironic that the only heroes in this sordid affair have been the military who had the courage to do what Congress was afraid to do:  put an end to this travesty.

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By Expat, June 9, 2007 at 9:49 am #

If we as Americans don’t fight for the rights of the detainee’s in Gitmo, we will forever compromise our own legal rights under the constitution.  Gitmo is our Constitution trashed, stomped on and denigrated beyond existence!  We are next!

Shrub has steam-rolled “The Constitution” and “The Bill of Rights” in one swift motion.  By all measure he has committed treason!

You the citizens of America have succumbed to fear and cowardice.  Those of us who put our asses on the line in the streets of America and Nam have been betrayed.

There is a pall of shame over our once great country.

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By cyrena, June 8, 2007 at 9:57 pm #

I read a headline that claimed a judge had ordered Paris back to jail. But, that’s all I know.

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By lawlessone, June 8, 2007 at 4:40 pm #
(Unregistered commenter)

Three separate cases against alleged terrorists were simultaneously totally thrown out for lack of jurisdiction.  The entire system for prosecuting them is now in jeopardy as a result. 

Is this yet another case of Bush betting badly on his battalions of bungling barristers?  Or, did the various judges involved simply remember their oath of office, particularly that little bit about swearing to uphold and defend the Constitution? 

I thought it was supposed to be “quaint” to still believe that scrap of paper has merit.  Courageous of them.  They better watch out though.  Any judge who disagrees with Bush the II could end up benched and on the wrong side of the bar at Gitmo.

[more irreverence at resistence-is-possible.blogspot.com]

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By THOMAS BILLIS, June 8, 2007 at 1:58 pm #
(Unregistered commenter)

Why does everyone forget the suspension of Habeus Corpus?In these troubled times I am thankful that some of those charged with administering this farce stand up and say no.I know that King George would like our system to be based on the show trials of Russia but you cannot fit a square peg into a round hole. The greatest judicial system in the world is righting itself after Captain Crazy decided to aim for the iceberg.Sanity is grdually returning to America the Congress is taking up restoration of Habeus Corpus and the Bush show trial paln is falling apart.What I say to the rest of world is do not give up on us we are a good people being led by a bad man and we will fix it.

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By Skruff, June 8, 2007 at 9:48 am #
(Unregistered commenter)

“....a nightmarish hodgepodge of rules that mock basic concepts of what most Americans would recognize as justice—”

Is one allowed to say “Paris Hilton” on this high-brow site?

U.S. Citizens recognize, all-to-well, the “nightmarish hodgepodge of rules” our government labels “justice.”

In these semi united states, one can have all the justice they can afford….just like health care.

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By KISS, June 8, 2007 at 8:43 am #

Marie, you only touch a small portion of the iceberg. Beyond Guantanamo penal colony, we have how many secret CIA foreign prisons doing exactly the same thing as Guantanamo, are the prisoners to be tried under a foreign law in the courts of the country where the prisoners are kept? where will American judges be in deciding the fate and justice of these prisoners? Where are the usual liberal politicals in stopping these crimes of humanity? The Feinsteins and Boxers and Clinton seem not to notice the other atrocities of Bush’s secret police and encampments..

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By Sang Ze, June 8, 2007 at 8:36 am #
(Unregistered commenter)

Ask Paris Hilton.

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By cyrena, June 8, 2007 at 3:14 am #

Thanks everybody, and Marie.

‘Tis correct that there was never such a “category” as “unlawful enemy combatant” in the language of the Conventions, until Cheney had his lawyers change it. I doubt if any of the other signatories changed their copies, but that hasn’t seemed to matter.

Prof. Boldin, I’m interested in reading the link on the application of the bill of rights, but it will have to wait till tomorrow. Hopefully we’ll still be here then.

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By DennisD, June 7, 2007 at 10:46 pm #
(Unregistered commenter)

You want “improvisational justice” - I give you Paris Hilton. Money talks and Paris walks.

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By tone-wreck, June 7, 2007 at 6:23 pm #

I suspect that America will be visited by the shame of its various blunders, illegalities, atrocitites,.. for the next 30 years.

Year after year, months after months there will be a constant dribble revealing a new atrocious aspect of what went on during the Cheney administration.

We will witness a barrage of reminders of America’s misdeeds that will probably shatter the image of the country for a century and possibly for ever.

It is probably too late to change that.

Reality is coming back and it will bite. Acts have consequences after all.

Not unlike the Germans after world war 2, Americans will loose the will and the ability to have any influence in the world for a generation.

It is probably a good thing as modern Germany has become a beacon of political moderation and wiseness.

Lets hope America and the world will benefit from those gigantic mistakes.

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By Michael Boldin, June 7, 2007 at 5:49 pm #

This whole issue is just disgusting, and should be totally repugnant to a free society.

The idea that politicians can determine who can and cannot exercise their right is not what our ancestors fought for.  They resisted tyranny like this because they wanted freedom.

Unfortunately, not all of us have had freedom - but what we shouldn’t do, is let it get even worse.

The constitution is not just a mere “suggestion,” it’s the law.  There’s nothing in it, whatsoever, that empowers the federal government to do any of this.

Period.

Some follow-up reading on this issue:

“To Whom Does the Bill of Rights Apply?”
http://www.populistamerica.com/to_whom_does_the_bill_of_rights_apply

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