My thanks also Ernest. I haven’t found information as pertinent or incisive as yours anywhere on the net. But then I haven’t found anyone else expressing the idea that law itself - beyond factions, ideologies or leanings - is what is at stake; law that is the ultimate protection of a citizenry against any government that might become tyrannous. So freedom (or its ideal, anyway) dies “not with a bang, but with a whimper.” I’ll do as you suggest. And I have copied and kept your e-mails. Have you considered launching a website to explain all of this?

Thanks Ernest.

#117078 by Allan Scheer on 11/30 at 9:59 am
(Unregistered commenter)

Gulag?
Gulag?
Kindly point out a Gulag that offers the same .

Surely it depends on which side of the bars you’re on.

Dominick, the issue before the Court has nothing to do with the 230 year old system of American jurisprudence which Mr. Billis referred to--a system that guarantees due process of law.

The VP’s Chief of Staff, Mr. Addington, came up with the military commissions system only after the Supreme Court in 2003 ruled in Rasul v. Bush that Guantanamo was not a judicial no-man’s land, beyond the reach of U.S. law.  Under the Addington system, codified by the Military Commissions Act, an individual can be relegated to this new military commissions system on nothing more than the president’s unilateral determination that someone should be classified as an “enemy combatant.”

The military tribunals are straight out of Kafka.  As described by Justice Stevens, writing for the Hamdan majority, the “accused and his counsel may be excluded from, and precluded from ever learning what evidence presented during any part of the proceeding that...the presiding officer decides to close.” It permits “the admission of evidence that, in the opinion of the presiding officer, ‘would have probative value to a reasonable person.’...Under this test, not only is testimonial hearsay and evidence obtained through coercion fully admissible, but neither live testimony nor witnesses’ written statements need to be sworn....As the District Court observed, this section apparently permits receipt of testimony from a confidential informant in circumstances where ‘Hamdan will not be permitted to hear the testimony, see the witness’s face, or learn his name.  If the government has information developed by interrogation of witnesses in Afghanistan or elsewhere, it can offer such evidence in transcript form, or even summaries of transcripts.”

Translated from legalese, once designated as an “enemy combatant” an accused can be “convicted” on evidence obtained by pulling out someone’s fingernails. This secret “evidence” could then be presented by way of a summary that edited out the screams.

As revealed by Jane Mayer in “The New Yorker,” citing a Seton Hall study, this system has been imposed on a detainee population, 55% of whom have never committed a hostile act and only 8% of which were alleged to have been connected with al Qaeda.  The vast majority, 86%, were captured either by Pakistan or the Northern Alliance at a time when the US was offering huge bounties for “suspected” terrorists.  Addington is well aware of this for the JAG & CIA officers sent to Guantanamo to find out why no useful intelligence was being extracted returned, reporting to Addington & Alberto Gonzaqles that “more than half the detainees...didn’t belong there.” There pleas were callously ignored.  One perplexed administration official questioned the logic of locking up innocent people.  “There were old people, sick people--why do we want to keep them?”

The answer lies in the fact that Guantanamo has absolutely nothing to do with national security or protecting America.  Mayer quotes an administration lawyer as stating “Torture isn’t important to Addington as a scientific matter, good or bad, or whether it works or not.  It’s more about his philosophy of Presidential power.  He thinks if the President wants torture he should get torture.  He always argued for ‘maximum flexibility.’” This calls to mind the words of O’Brien as he is torturing Winston Smith in George Orwell’s “1984:” “The Party seeks power entirely for its own sake.  We are not interested in the good of others; we are interested solely in power.  Not wealth or luxury or long life or happiness; only power, pure power.”

Allan Scheer:  The level of your ignorance is disturbing.  Even if we treated the detainees well, we would have no right to hold innocents indefinitely against their will.  The fact is that people have been tortured at Guantanamo.  People have committed suicide as they see no other way out.  If you really need a glimpse inside, try reading Eric Saars “Inside the Wire.”

thomas billis says: “No one wants terrorists freed but I believe our system developed over 230 years, if allowed to work ,is superior to the British and Spanish and will accomplish the goal of punishing the culpapble and freeing the innocent.”
***************************************************

First they have to be proven to be terrorists and that can’t be done if they are being held for years with out ever being tried.  In this country, of course, we are suppose to be given a Fast and speedy trial, not to be let to languish away in some remote area and refused any contact whatsoever to the outside world OR to have legal advise.  The system your talking about seems to have been abandoned by the Bush Administration, And that very administration has snubbed a ruling from a High Court!

Dominick

Sara, the way to reverse this abominable situation is to insist on application of the rule of law.  There are a few members of Congress, led by Dennis Kucinich, who understand this.  His articles of impeachment have been brought forth as a means for defending the constitution “before” we pass the point of no return.  Everyone who considers him or herself a “citizen” should write to John Conyers, the head of the house judiciary committee and insist that impeachment hearings commence forthwith.  But, unfortunately, the so-called Democratic leadership is so focused on collecting corporate monies for the next election that they simply cannot or will not see the clear and present danger to the very survival of our constitutional democracy.  Indeed, both laws and executive orders are now in place that would permit the president to declare a “national emergency” in the event of a new terrorist incident on U.S. soil.  With Cheney still pushing to attack Iran, this is not as unlikely a scenario--at least Paul Craig Roberts, who served as an assistant secretary in the Reagan administration.  He asserts that people just don’t appreciate the level of Cheney’s ruthlessness.

In the meantime, we wait to see whether the five members of the U.S. Supreme Court who voted the right way in Hamdan will have both the courage and integrity to do the right thing this time around.

Thank you, Mr Canning for that very informative if terrifying post. So, if I understand you, a series of mini-acts have been striking down laws once crafted by treaty and hundreds of years of of history? The crimes we once abhorred are no longer crimes? Do any of them stand by law? And are ordinary people in any position to demand their laws back *and* demand that they be binding on those whom they were designed to bind - even the most powerful in the land?

As someone who has practiced law for more than thirty years I have learned that it is often difficult to predict how an appellate court will rule.  Everything I had learned about election law within our constitutional framework, for example, told me that had the court merely followed the law, Bush’s effort to shut down the recount in Florida would have never been heard by the U.S. Supreme Court which should have given deference to the Florida Supreme Court decision.  The court’s ultimate ruling on behalf of Bush on equal protection grounds was, shall we politely say, a stretch.

This is essentially the same Supreme Court which decided Hamdan in 2004.  That case produced a 5-3 decision which would have been a 5-4 decision except that Chief Justice Roberts recused himself because he had participated in Hamdan at the DC circuit court of appeal level.  Since these same four justices are all affiliated with the radical Federalist Society which subscribes to the subversive doctrine of a lawless “Unitary Executive” there can be little doubt they will rule on behalf of the administration.

However, it takes five votes to prevail in the Supreme Court.  In Hamdan, the court could have ended its ruling by applying a minimalist approach, to the effect that executive authority for the Kafka-like military tribunals in place at Guantanamo could be found neither in the Uniform Code of Military Justice (UCMJ), in the legislation which authorized the use of force in Afghanistan in the aftermath of 9/11 (the AUMF) or in inherent executive power.  Instead, the Court turned to broader questions, sending a shot across the bow of both the lawless administration and their enablers in the then Republican-controlled Congress.

The Court ruled it had the power to decide the merits because Common Article 3 of the Geneva Conventions applied, an article which prohibits sentencing a detainee “without previous judgment...by a regularly constituted court affording all judicial guarantees...recognized as indispensable by civilized peoples.” “Nobody in enemy hands can be outside the law.”

The Court was especially distressed by the denial of the right to be present at one’s trial and the ability to convict on summarizes of hearsay even if the hearsay was obtained by torture, which it found violated Common Article 3.  Justice Kennedy, the conservative appointee of Bush I, agreed, noting that Common Article 3 “is part of a treaty the United States has ratified and thus accepted as binding law.” He then ominously added, “By Act of Congress..., violations of Common Article 3 are considered ‘war crimes,’ punishable as federal offenses, when committed by or against United States nationals and military personnel.”

It was this passage that sent Alberto Gonzales scurrying over to Congress, seeking and then obtaining the abominable Military Commissions Act of 2006 (MCA) which seeks not only to resurrect the same Kafka like military tribunals condemned by the Court in Hamdan but which seeks to remove the Court from the equation by eliminating habeas corpus.  The act also provided Gonzales et al with an immunity from prosecution for all crimes committed in service of the so-called “war on terror” retroactive to 9/11/01. 

Where the democracy once known as the Weimar Republic ended abruptly in 1933 with passage of the Enabling Act which ceded all legislative power to Hitler, ours is fading with each mini-enabling Act like the MCA.  The case now before the Court has an importance beyond the fate of the Guantanamo detainees.  The outcome could well prove crucial to the very survival of American democracy and the rule of law.

I’ll certainly sign the petition and I hope many others do also. The thing about the Bush administration that truly frightens me is that it seems to have gone back to the medieval idea that the ends justify the means. I’m certain they mean well and believe God’s on their side (so did the crusaders and the Inquisistion). But in the process they’ve given away more than they can possibly realize. The only thing that keeps those in power accountable is, well, accountability. Law preserves that accountability and protects the weak from the powerful and the powerful from their own worst instincts. Left or right wing all of us need that protection and need to insist on it. Even if I were madly in love with President Bush, under the truth serum test I’d have to admit that he has put aside constitutional law: suspension of habeas corpus, violation of privacy laws, declaration of war without clear and present danger and under false assumptions, assumption of emergency powers without a state of emergency et alia. (He also pursued a policy which included the revenge ‘outing’ of a CIA agent which is treason under the constitution). He has violated international treaty - international law on aggression and invasion, treatment of prisoners, harm to civilians etc. By all reasonable standards this president has criminal charges to answer. If he was right to break the laws as he did then the laws are in need of change. If he was wrong,as the law says, then he needs to be charged. The worst of all possible worlds is what is happening. The laws are ignored, reinterpreted, de clawed and detoothed. They can no longer protect anyone - least of all the weak from the powerful. They are all we have and nothing, no personal love or loyalty or partisanship is as important as restoring their authority asap - no matter what.

There is a petition concerning torture at Human Rights first, if you’d like to sign it it can be found here:

http://www.humanrightsfirst.org/us_law/etn/elect08/ind ex.aspx

Maybe a majority on the court willhave a moment of decency and respect for those who died to preserve this Democracy.  What I don’t understand is why this admin is so afraid of and American Jury.  Do they really think 12 Americans would free a true terrorist.  What are they hiding, that’s the real question.  Let the war mongers keep thumping their drums.  They will be defeated in 2008, that I’m sure.  Once again, where is our news media, investigative journalists, and American outrage.  The world is watching, lets hope the Supreme Court does the right thing.....

2nd Thought:
If the justices are ethical, moral ,and honest (politically neutral), how the hell could a court be packed?  I just answered my own stupid question!  Sorry about that!

How is it that highly educated, “intelligent” people, who attain such high positions of ultimate responsibility, can then go for the fascist line, can get where they are?  How can the highest court in the land stray so far from the historical interpretations of our constitution?  Interpretations....what’s wrong with literal reading?  Are they as corrupt as they seem?  Sorry, rhetorical question! Never mind?

Well, with a packed court, we shall see.