October 18, 2012 archive

Terrorist Conviction Overturned

Cross posted from The Stars Hollow Gazette

The United States Court of Appeals for the District of Columbia Circuit overturned the conviction of Salim Ahmed Hamdan for providing material support for terrorism. Hamdan, a Yemeni, was captured in Afghanistan in 2001

The court ruled that the conviction could not stand because ,at the time of Handan’s conviction “under the international law of war in effect at the time of his actions, there was no such defined war crime”:

The Military Commission Act, a law passed in 2006, does not authorize such retroactive prosecutions, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled. [..]

The ruling called into question whether other Guantanamo detainees  accused of being part of Al Qaeda but not of plotting any specific terrorist attack can receive military trials.

The opinion was written by Judge Brett Kavanaugh, who worked as a lawyer in the White House for President George W. Bush before he was appointed to the bench. His opinion was largely joined by Chief Judge David Sentelle and Judge Douglas Ginsburg, appointees of Ronald Reagan.

Zachary Katznelson, senior staff attorney at the American Civil Liberties Union, said the decision “strikes the biggest blow yet against the legitimacy of the Guantánamo military commissions, which have for years now been trying people for a supposed war crime that in fact is not a war crime at all.” He said the  government should prosecute in civilian courts any Guantánamo prisoners against whom it has enough admissible evidence.

This should come as no surprise to the administration since, as Marcy Wheeler at emptywheel noted in her analysis, this had been predicted (pdf) by an assistant attorney general over three years ago:

There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.

The DC court agreed:

   First, despite Hamdan’s release from custody, this case is not moot. This is a direct appeal of a conviction. The Supreme Court has long held that a defendant’s direct appeal of a conviction is not mooted by the defendant’s release from custody.

   Second, consistent with Congress’s stated intent and so as to avoid a serious Ex Post Facto Clause issue, we interpret the Military Commissions Act of 2006 not to authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred. Therefore, Hamdan’s conviction may be affirmed only if the relevant statute that was on the books at the time of his conduct – 10 U.S.C. § 821 – encompassed material support for terrorism.

   Third, when Hamdan committed the relevant conduct from 1996 to 2001, Section 821 of Title 10 provided that military commissions may try violations of the “law of war.” The “law of war” cross-referenced in that statute is the international law of war. See Quirin, 317 U.S. at 27-30, 35-36. When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime. Indeed, the Executive Branch acknowledges that the international law of war did not – and still does not – identify material support for terrorism as a war crime. Therefore, the relevant statute at the time of Hamdan’s conduct – 10 U.S.C. § 821 – did not proscribe material support for terrorism as a war crime.

   Because we read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under 10 U.S.C. § 821, Hamdan’s conviction for material support for terrorism cannot stand. We reverse the judgment of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated.

This ruling could obviously effect the convictions and prosecutions of other Guantánamo detainees. The Administration has yet to announce whether it will appeal, I suspect that they will try.

On This Day In History October 18

Cross posted from The Stars Hollow Gazette

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

October 18 is the 291st day of the year (292nd in leap years) in the Gregorian calendar. There are 74 days remaining until the end of the year.

On this day in 1767, Mason and Dixon Draw a line.

Charles Mason and Jeremiah Dixon complete their survey of the boundary between the colonies of Pennsylvania and Maryland as well as areas that would eventually become the states of Delaware and West Virginia. The Penn and Calvert families had hired Mason and Dixon, English surveyors, to settle their dispute over the boundary between their two proprietary colonies, Pennsylvania and Maryland.

In 1760, tired of border violence between the colonies’ settlers, the British crown demanded that the parties involved hold to an agreement reached in 1732. As part of Maryland and Pennsylvania’s adherence to this royal command, Mason and Dixon were asked to determine the exact whereabouts of the boundary between the two colonies. Though both colonies claimed the area between the 39th and 40th parallel, what is now referred to as the Mason-Dixon line finally settled the boundary at a northern latitude of 39 degrees and 43 minutes. The line was marked using stones, with Pennsylvania’s crest on one side and Maryland’s on the other.

Background

Maryland’s charter granted the land north of the entire length of the Potomac River up to the 40th parallel. A problem arose when Charles II  granted a charter for Pennsylvania. The grant defined Pennsylvania’s southern border as identical to Maryland’s northern border, the 40th parallel. But the terms of the grant clearly indicate that Charles II and William Penn assumed the 40th parallel would intersect the Twelve-Mile Circle around New Castle, Delaware when in fact it falls north of Philadelphia, the site of which Penn had already selected for his colony’s capital city. Negotiations ensued after the problem was discovered in 1681. A compromise proposed by Charles II in 1682, which might have resolved the issue, was undermined by Penn receiving the additional grant of the ‘Three Lower Counties’ along Delaware Bay, which later became the Delaware Colony, a satellite of Pennsylvania. These lands had been part of Maryland’s original grant.

In 1732 the proprietary governor of Maryland, Charles Calvert, 5th Baron Baltimore, signed a provisional agreement with William Penn’s sons which drew a line somewhere in between, and also renounced the Calvert claim to Delaware. But later Lord Baltimore claimed that the document he signed did not contain the terms he had agreed to, and refused to put the agreement into effect. Beginning in the mid-1730s, violence erupted between settlers claiming various loyalties to Maryland and Pennsylvania. The border conflict between Pennsylvania and Maryland would be known as Cresap’s War.

The issue was unresolved until the Crown intervened in 1760, ordering Frederick Calvert, 6th Baron Baltimore to accept the 1732 agreement. Maryland’s border with Delaware was to be based on the Transpeninsular Line and the Twelve-Mile Circle around New Castle. The Pennsylvania-Maryland border was defined as the line of latitude 15 miles south of the southernmost house in Philadelphia.

As part of the settlement, the Penns and Calverts commissioned the English team of Charles Mason and Jeremiah Dixon to survey the newly established boundaries between the Province of Pennsylvania, the Province of Maryland, Delaware Colony, and parts of Colony and Old Dominion of Virginia.

After Pennsylvania abolished slavery in 1781, the western part of this line and the Ohio River became a border between free and slave states, although Delaware remained a slave state.

Cartnoon

Missing, The Heckling Hare.  This next one originally posted July 13, 2011.

Stop! Look! And Hasten!

Muse in the Morning

Photo Sharing and Video Hosting at Photobucket
Muse in the Morning


Art Glass 47

Libertarian Candidate: Gary Johnson

Cross posted from The Stars Hollow Gazette

The Libertarian Party is the third largest and fastest growing political party in the United States. The party platform is favors minimizing regulation, less government, strong civil liberties (including support for same-sex marriage and other LGBT rights), the legalization of cannabis, separation of church and state, open immigration, non-interventionism and neutrality in diplomatic relations, freedom of trade and travel to all foreign countries, and a more responsive and direct democracy. They support the repeal of NAFTA, CAFTA and other trade agreements, as well as, withdrawal from the United Nations, the World Trade Organization and NATO. The party was founded in 1971 and has qualified for the ballot in 48 states and the District of Columbia.

Former two time Republican governor of New Mexico, Gary Johnson is the 2012 party nominee for president:

He entered politics for the first time by running for Governor of New Mexico in 1994 on a fiscally conservative, low-tax, anti-crime platform. Johnson won the Republican Party of New Mexico’s gubernatorial nomination, and defeated incumbent Democratic governor Bruce King by 50% to 40%. He cut the 10% annual growth in the budget: in part, due to his use of the gubernatorial veto 200 times during his first six months in office, which gained him the nickname “Governor Veto”. [..]

Johnson sought re-election in 1998, winning by 55% to 45%. In his second term, he concentrated on the issue of school voucher reforms, as well as campaigning for marijuana decriminalization and opposition to the War on Drugs. [..]

Johnson announced his candidacy for President on April 21, 2011, as a Republican, on a libertarian platform emphasizing the United States public debt and a balanced budget through a 43% reduction of all federal government spending, protection of civil liberties, an immediate end to the War in Afghanistan and his advocacy of the FairTax.

On December 28, 2011, after being excluded from the majority of the Republican Party’s presidential debates and failing to gain traction while campaigning for the New Hampshire primary, he withdrew his candidacy for the Republican nomination and announced that he would continue his presidential campaign as a candidate for the nomination of the Libertarian Party. He won the Libertarian Party nomination on May 5, 2012. His vice-presidential running mate is Judge James P. Gray of California.

Johnson could become the spoiler in this election siphoning off votes from the Republican nominee, Mitt Romney, much as many believe the Green Party candidate, Ralph Nader, cost Al Gore the Florida vote in 2000 and Ross Perot candidacy lost George H. W. Bush his second term in 1992. This has the GOP running scared in swing states like Pennsylvania:

The fear of Mr. Johnson’s tipping the outcome in an important state may explain why an aide to Mr. Romney ran what was effectively a surveillance operation into Mr. Johnson’s efforts over the summer to qualify for the ballot at the Iowa State Fair, providing witnesses to testify in a lawsuit to block him that ultimately fizzled.

Libertarians suspect it is why Republican state officials in Michigan blocked Mr. Johnson from the ballot after he filed proper paperwork three minutes after his filing deadline.

And it is why Republicans in Pennsylvania hired a private detective to investigate his ballot drive in Philadelphia, appearing at the homes of paid canvassers and, in some cases, flashing an F.B.I. badge – he was a retired agent – while asking to review the petitions they gathered at $1 a signature, according to testimony in the case and interviews.

The challenge in Pennsylvania, brought by state Republican Party officials who suspected that Democrats were secretly helping the effort to get Mr. Johnson on the ballot, was shot down in court last week, bringing to 48 the number of states where Mr. Johnson will compete on Nov. 6.

On MSNBC’s Daily Rundown, political analyst Chuck Todd discusses the impact of third party candidates and interviewed Gov. Johnson:

You can read more about Gov. Johnson and his running mate, Judge James P. Gray at his campaign’s web site.