- The 2006 Military Commissions Act authorized torture
and sweeping unconstitutional powers to detain, interrogate, and prosecute
alleged suspects and collaborators (including US citizens), hold them (without
evidence) indefinitely in military prisons, and deny them habeas and other
- Section 1031 of the FY 2010 Defense Authorization Act
contained the 2009 Military Commissions Act (MCA), listing changes that
include discarding the phrase "unlawful enemy combatant" for
"unprivileged enemy belligerent." Language changed but not intent
or lawlessness. Obama embraces the same Bush agenda, including keeping
Guantanamo open after promising to close it, and allowing torture there
- MCA grants sweeping police state powers, including that
"no court, justice, or judge shall have jurisdiction to hear or consider
any claim or cause for action whatsoever....relating to the prosecution,
trial, or judgment of a military commission (including) challenges to the
lawfulness of (its) procedures...."
- MCA scraped habeas protection (dating back to the Magna
Carta in 1215) for domestic and foreign state enemies, citizens and non-citizens
alike, and says "Any person is punishable... who....aids, abets, counsels,
commands, or procures," and in so doing helps a foreign enemy, provide
"material support" to alleged terrorist groups, engages in spying,
or commits other offenses previously handled in civil courts. No evidence
is needed. Those charged are guilty by accusation.
- Other key provisions include:
- -- legalizing torture against anyone, letting the president
decide what procedures can be used on his own authority;
- -- denying detainees international law protection, letting
the executive interpret or ignore it;
- -- letting the president convene "military commissions"
at his discretion to try anyone he designates an "unprivileged enemy
belligerent," detaining them indefinitely in secret;
- --denying speedy trials or any at all;
- -- letting torture coerced confessions be used as evidence
in trial proceedings, despite US and international law prohibiting cruel
and inhuman treatment at all times, under all conditions, with no allowed
exceptions; also, the US Supreme Court's February 1936 Brown v. Mississippi
- "The rack and torture chamber may not substitute
for the witness stand," and an earlier November 1926 Fisher v. State
decision called coerced confessions "the chief iniquity, the crowning
infamy (and) the curse of all countries" using them.
- -- letting hearsay and secret evidence be used; and
- -- denying due process, destroying human dignity, mocking
the rule of law, and establishing the principle of kangaroo court justice
for anyone the executive targets with or without evidence.
- In other words, the rule of law is null and void. Whatever
the president says goes. No one any longer is safe. America is a police
state, making everyone potentially vulnerable.
- Stepped Up Military Commission Prosecutions Planned
- On January 19, New York Times writer Charlie Savage headlined,
"US Prepares to Lift Ban on Guantanamo Cases," saying:
- "The Obama administration (will) increase the use
of military commissions to prosecute Guantanamo detainees....Defense Secretary
Robert M. Gates is expected to soon lift an order blocking the initiation
of new cases....(It will) clear the way for tribunal officials, for the
first time under the Obama administration, to initiate new charges against
detainees" no matter how lawless the process or lack of evidence.
Military commissions are convened to convict, not exonerate, denying every
trial victim justice.
- Last May, Obama authorized 13 prosecutions when his January
20 Executive Order (EO) halted initiation of new ones.
- Within weeks, so-called "high-value detainees"
will face trial, including Abd al-Rahim al-Nashiri, the alleged mastermind
of the 2000 USS Cole bombing, charged with "organizing and directing"
it. After capture in 2002, he was brutally tortured. The Bush administration
admitted he was waterboarded, faced mock executions, and threatened with
a power drill, among other abuses, to extract confessions to the Cole attack,
other incidents, and that bin Laden had access to nuclear weapons.
- In 2003, two of his alleged co-conspirators were indicted
in federal court. Al-Nashiri's lawyer, Lt. Cmdr. Stephen Reyes, said he's
"being prosecuted at the commissions because of the torture issue,"
preventing a civilian trial. However, other torture victims got them, including
Aafia Siddiqui, Jose Padilla, John Walker Lindh, Zacarias Moussaoui, and
Ahmed Khalfan Ghailani.
- In alleged terrorism cases, civilian courts usually are
as unjust as military commissions. Exceptions, however, occur, Ghailani
- An alleged Al Qaeda member, he was charged for involvement
in the 1998 attacks on US embassies in East Africa, placed on the FBI's
Most Wanted Terrorists list, captured in 2004, sent to Guantanamo, then
tried in US District Court for the Southern District of New York in June
2009, the first former Guantanamo detainee tried in a civilian court.
- On November 17, 2010, he was convicted on one count of
conspiracy, but acquitted on 284 others, including multiple murder charges.
On January 20, New York Times writer Benjamin Weiser headlined, "Judge
Suggests Evidence in Terror Case Supports Conviction," saying:
- Judge Lewis A. Kaplan supported Ghailani's conviction
on one conspiracy count to destroy government buildings and property even
though prosecutors seek life in prison. Minimally he'll get 20 years. On
January 25, he'll be sentenced. Three others allegedly involved with him
got life terms at ADX Florence, CO, the sole federal supermax prison, called
"The Alcatraz of the Rockies" or "A Clean Version of Hell,"
for prisoners deemed most dangerous.
- If tried in a military commission, conviction on all
major charges was assured as well as a death sentence without appeal because
alleged murders were involved.
- Other Military Commission Trials
- Savage mentioned Ahmed al-Darbi, accused of a failed
operation "to attack oil tankers in the Straits of Hormuz; and Obaydullah,
an Afghan," accused, according to Reuters of:
- "allege(dly concealing) mines and other explosives
in the Khost area of Afghanistan from October 2001 to July 2002 and carr(ying)
a notebook describing 'how to wire and detonate explosive devices in preparation
for acts of terrorism.' "
- Likely trials for 30 or more others will also be by military
commissions, assuring convictions on all or most serious charges.
- Moreover, an Executive Order (EO) authorizing indefinite
detentions is imminent. In May 2009, Obama suggested it, saying detainees
(including ones ordered released) "who cannot be prosecuted yet who
pose a clear danger to the American people" will be held without statutory
authority. Over 50 innocent ones are affected. They may never be released
(despite semi-annual and annual reviews, parole-like hearings rigged to
deny), yet subjected to torture, other abuses, and denial of all fundamental
- In response, Center for Constitutional Rights (CCR) Managing
Attorney, Shayana Kadidal, said:
- "Preventive detention goes against every principle
our nation was founded on. We have courts and laws in place that we respect
and rely on because we have been a nation of laws for hundreds of years;
we should not simply discard them when they are inconvenient."
- At the same time, CCR President Michael Ratner called
military commissions "irredeemably flawed." In an earlier article,
he described them as "kangaroo courts" no different than ones
in police states. The combination of lawless arrests, torture, military
commissions and indefinite detentions describe today's America accurately,
especially for anyone, rightly or wrongly, accused of terrorism or conspiracy
to commit it.
- Last March, after reports about new military commission
trials, the ACLU bought a full-page Sunday New York Times ad urging the
Justice Department to try high-value" terror suspects in civil courts,
- "a second class system of justice which should be
shut down for good. The Constitution is not optional, and the rule of law
must be restored."
- The ad showed an Obama picture morphing into Bush, asking:
"What will it be Mr. President? Change or more of the same."
ACLU's executive director Anthony Romero said "it's critical that
Americans know what is at stake here: nothing less than America's commitment
to the Constitution and the rule of law."
- Post-9/11, both were trashed. Bipartisan complicity in
lawlessness followed. Most all Guantanamo and other offshore prison detainees
are innocent. In January 2010, The New York Times said:
- "in the eight years since the Bush administration
first set up military commissions, only three Guantanamo detainees have
been convicted, in part because of legal challenges to the tribunals. Two
of the three received modest sentences and are now free," showing
there was no basis for trial in the first place, and a year later the conviction
number is still three.
- Moreover, the many hundreds held offshore are wrongfully
called terrorists. Yet they've been tortured, denied counsel and due process,
contact with family members, and in some cases murdered, though innocent
of any crime. Today's America institutionalized injustice, and not just
offshore given the hundreds of political prisoners languishing domestically
under gulag conditions.
- Stephen Lendman lives in Chicago and can be reached at
email@example.com. Also visit his blog site at sjlendman.blogspot.com
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