(11 am. – promoted by ek hornbeck)
Military Commissions: Ritualized “justice” to cover-up torture, murder, & innocence.
Obama’s flip-flopping on the use of military commissions means, apparently, we can never turn the page on BushCo, which permanently broke the Constitution. The law is still subject to whims of stubborn rulers, justice is arbitrary, and “the days of compromising our values” are definitely not over.
Remember this gem from William Haynes who was over-seeing the rigged Military Commissions at Guantanamo, as related by the Commission’s chief prosecutor Col. Morris Davis?
“[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.
“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.'”
Col. Davis honorably resigned.
Contrast Hayne’s view of the law with that of Retired Rear Admiral John D. Hutson, who served as a Judge Advocate in the US Navy from 1973 to 2000, and was the Navy’s Judge Advocate General from 1997 to 2000:
“You can’t have a legitimate court unless you are willing to risk an acquittal. If you aren’t willing to accept the possibility that a jury will acquit the accused based on the evidence fairly presented, then it isn’t really a court. It’s a charade.”
At stake in these competing views is the root tension between two simple ideas: whether a person merely accused of a crime should be presumed innocent or guilty, with that presumption controlling subsequent legal processes following from that accusation.
The Magna Carta provided the basis for the notion of “due process” for the past 800 years:
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”[
Bush v. Gore 9/11 changed everything.
Our corrupt government has no problem subverting our 800-year-old system of laws to prevent implicating themselves in the false imprisonment, torture, and murder that occurred at the Guantanamo Bay false-imprisonment, torture, and murder facility.
As Lt. Cmdr. Charles Swift noted, both Gitmo and the military commissions were designed to break the law:
“The whole purpose of setting up Guantánamo Bay is for torture. Why do this? Because you want to escape the rule of law. There is only one thing that you want to escape the rule of law to do, and that is to question people coercively – what some people call torture. Guantánamo and the military commissions are implements for breaking the law.”
Swift was denied promotion and “let go” by the Pentagon, but went on as a civilian to secure a victory in Hamdan v. Rumsfeld.
If you were to give Guantanamo detainees fair trials, ugly discoveries would follow. Many would be found innocent. Many would be found to have been tortured, confessions coerced. The government may even be found to have murdered some of those it has tortured. These crimes must be covered up.
To achieve these cover-ups, the government intends to provide an elaborate ritualized process of simulated justice designed to give the appearance of “due process,” the idea that those alleged to have committed breaches of laws have rights that must be treated fairly by carefully observed legal procedures, without actually giving due process and being fair.
Obama’s habit of making promises he won’t keep.
As Jason Leopold notes, on the campaign trail, Obama insisted:
“I will reject a legal framework that does not work,” Obama said, his words slightly drowned out by the loud applause that erupted. “There has been only one conviction at Guantanamo. It was for a guilty plea on material support for terrorism. The sentence was nine months. There has not been one conviction of a terrorist act. I have faith in America’s courts, and I have faith in our [Judge Advocate Generals].”
“As president, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions,” he continued. “Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists … Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.”
Due to internal political pressure, including outlandishly ridiculous red herrings about “mirandizing al Qaeda on the battelfield,” and “endangering our Homeland by bringing al Qaeda into Article III courts,” notably from architects of torture, war crimes, and proponents of the Imperial Presidency, Obama retracted and supplanted yet another signature campaign promise:
”Military commissions have a long tradition in the United States. They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered.”
Jonathan Turley accurately noted that Obama was politicizing the law and attempting to deny authentic due process:
“It is clear that Obama has determined that these men stood a chance of being released if they were given full legal protections and procedures. Thus, he has discovered the value of extrajudicial punishment with indefinite detentions and tribunals. The tribunal system is run on rules written by the Bush administration to ensure convictions. It has even fewer protections than allowed in the military system and has been widely ridiculed, even by some conservatives, as a Kangaroo trial system.”
Military commissions are broken beyond repair
Lt. Col. Darrel Vandeveld, a former Military Commissions prosecutor, and true believer in the commissions, completely lost faith in the fairness of the process, while prosecuting what he believed to be a straightforward case:
I began to realize that the problems with Jawad’s case were symptomatic of the military commissions regime as a whole. Indeed, if any case was likely to be free of such anomalies, it should have been that of Mr. Jawad, whose alleged crime was as straightforward as any on the prosecutor’s docket. Instead, gathering the evidence against Mr. Jawad was like looking into Pandora’s Box: I uncovered a confession obtained through torture, two suicide attempts by the accused, abusive interrogations, the withholding of exculpatory evidence from the defense, judicial incompetence, and ugly attempts to cover up the failures of an irretrievably broken system.
Evidence from US Army criminal investigators showed that Jawad had been hooded, slapped repeatedly across the face and then thrown down at least one flight of stairs while in US custody in Afghanistan. Detainee records show that once at Guantánamo, he was subjected to a sleep deprivation regime, known as the “frequent flier program,” during which he was moved to different cells 112 times over a 14-day period – an average of once every two and a half hours – and that he had tried to commit suicide by banging his head repeatedly against a wall. Evidence from a bone scan showed that he was, in fact, a juvenile when he was initially taken into US custody. Field reports, and examinations by US personnel in the hours after Jawad had been apprehended, indicated that he had been recruited by terrorists who drugged him and lied to him, and that he probably hadn’t committed the crime for which he was being charged. In fact, the military had obtained confessions from at least two other individuals for the same crime.
Vandeveld soon resigned in disillusionment, and testified to Congress that the military commissions were FUBAR (Fucked up beyond all recognition):
“I am here today to offer a single, straightforward message: the military commission system is broken beyond repair. Even good-faith efforts at revision, such as legislation recently passed by the Senate Armed Services Committee, leave in place provisions that are illegal and unconstitutional, undermine defendants’ basic fair-trial rights, create unacceptable risks of wrongful prosecution, place our men and women in uniform at risk of unfair prosecution by other nations abroad, harm the reputation of the United States, invite time-consuming litigation before federal courts, and, most importantly, undermine the fundamental values of justice and liberty upon which this great country was founded.”
“The military commissions cannot be fixed, because their very creation – and the only reason to prefer military commissions over federal criminal courts for the Guantanamo detainees – can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.”
Legitimacy is essential.
Admiral Hutson nails it:
In what was perhaps the most critical passage, however, he pointed out that using Commissions instead of federal court trials appeared to demonstrate only that the government was afraid that some federal court trials would fail, and was therefore seeking a forum that eliminated the possibility of acquittals. “If the point of this exercise is to create a court system that will ensure convictions of alleged terrorists against whom we don’t have sufficient admissible evidence, then we have missed the point,” he said. “You can’t have a legitimate court unless you are willing to risk an acquittal. If you aren’t willing to accept the possibility that a jury will acquit the accused based on the evidence fairly presented, then it isn’t really a court. It’s a charade.”
He added, “The corollary to that is that you can’t have a real court if the evidence and procedure are so stacked against the defendant that he has no real chance to present his case or defend against the government’s case. The admissible evidence against him based on the facts may be so overwhelming that conviction is assured but that must be the consequence of facts, not rules of evidence tilted in favor of the prosecution.”
What’s the point of trying to “fix” military commissions?
Admiral Hutson also points out that Obama’s attempt to “fix” the military commissions doesn’t make any sense.
[I]f we create yet another military commission system that “contains all the judicial guarantees considered to be indispensable by all civilized peoples” as required by Common Article 3 of the Geneva Conventions, then we have essentially duplicated our own Federal courts. There is no logical reason to create a system that mirrors one already in existence and is functioning so well. We should strive for the minimum change necessary to accomplish the purpose, not a wholesale change to an already effectively functioning system.
Clearly and undeniably, the Administration and this Committee are dedicated to untying this Gordian knot in a way that serves the very best interest of the country. We are now operating under the Military Commission Act of 2006 which many find to be badly flawed. I very much respect and admire your effort to improve it. My recommendation, however, is to repeal [the 2006 Military Commission Act] rather than improve it. In the process, I urge you to express this body’s preference to prosecute alleged terrorists in federal court and thereby demonstrate to the world, friend and foe alike, what kind of Justice the United States wishes to export.
There is no defense of military commissions. Many of these so-called “enemies” have been held for years and years without redress or relief, without assistance or cure, without remedy or rectification. Without fairness. Without justice. Abused, beaten, and utterly unrelieved by the “Unitary Executive.”
Covering the sins of the past with new, equally deplorable sins is no remedy.
800 years of legal precedent says, “No more, Mr. President-King!” Enforcement, not spelunking, is in your grand charter.
3 comments
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This is reprehensible.
I understand that John McCain and Joe Lieberman intend to brace the Magna Carta, while Lindsey Graham kicks its ribs, vital organs, and testicles, until such time as President Barack Obama can snap its neck, thus ending 800 years of the legal precedent of “fairness.”
… a trip to the Moon on gossamer wings.
First of all, the whole notion that we are “at war” is just theater. The military and intel services were asked to pick up some people and hold them. We needed extras. Torturers were recruited and they did what torturers always do and that is have fun with putting people in pain. You tell the half-wit torturers that they are saving America and then they can have fun without it bothering what little conscience they have and avoiding cognitive dissonance etc., etc.
The whole point of the torture was to scare “the world” into fearing the U.S.A. This was clearly spelled out in the writings of various conservatives in the 90’s. The neoconservative agenda was 1) to unite the USA in facing a common enemy whether it was real or not and to put us on a war footing — even a permanent war footing; 2) to intimidate other countries into accommodating our needs for energy and credit. That was the whole motive behind 9/11. The neocons share a certain background with me and that is a fascination with the classics that came out of the University of Chicago in mid-century under Robert Maynard Hutchins. It is a given, in much of classical literature, that war is virtuous. If you read Adam Smith’s The Theory of Moral Sentiments you will find that Smith thought war as a necessity not so much for conquest or geo-political gain but as a moral education for young men. War to a neoconservative is important to instill discipline and meaning. That is what is behind the wars we are fighting.
Alas, is all went awry. Now it is just “one of those things” that cannot be opposed and that feathers the nest of everybody in the power-elite in one way or the other so it must continue whether it serves any practical purpose or not since we are a country that is governed chiefly by inertia at this point in history.
The courts you describe have nothing to do with justice and nothing to do with anything sensible. We live in an Alice in Wonderland culture and there is no sign, other than pending collapse (within the decade) that will change that.
had a shred of integrity, he’d resign, and hold a press conference on why he did it.