The Law of War Criminals, Up Date

(9 am. – promoted by ek hornbeck)

Cross posted from The Stars Hollow Gazette

Two years and two months ago the American people hailed a new President and an end to our national nightmare of the Bush reign of eight years of trampling the Constitution, the laws that govern  and the economy. Since then the reality that nothing has changed comes down with crashing reality. This President, Barack Hussein Obama, is as complicit as the last President in the war on the US Constitution, International laws and treaties and human rights. Today it became evidently clear that Obama is not Bush, he’s Cheney.

Today Obama issued an Executive Order (pdf) that not only will restart the Military Commissions at Guantanamo but also orders indefinite detention for forty seven detainees without any of them ever being charged with a crime. Why? Because Obama is covering up the war crimes of the previous administration which, according to the Nuremberg Principles, is a war crime. Claims that the evidence against these men would harm national security just rings hollow.

Marcy Wheeler at FDL explains that “the new and improved Military Detention Regime has two parts”. The first part relates to the indefinite detention polices without anything other than a claim of “because I say it’s justified”:

“Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.“

. . . .this doesn’t appear to tie to any wrong-doing on the detainee’s part. “It” here appears to refer to “continued law of war detention,” suggesting that “it” may be necessary regardless of any threat posed by the detainee himself.

Also note that the standard “significant threat to the security of the United States” doesn’t invoke the war (ostensibly, the war against Afghanistan) itself. This seems very very wrong. It also seems designed to authorized the continued detention of the Yemeni detainees who we admit aren’t themselves a threat, but must be detained, our government says, because they come from a dangerous country.

(all emphasis mine)

The EO also restarts the Military Commissions where evidence that has been attained through torture is admissible.

Dana Milbank, in his Op-Ed, remarked that the conference call with reporters and “some top-notch lawyers from across the executive branch” with “ground rules required that the officials not be identified”, sounded very much like what the Bush lawyers used to say:

It was another important moment in the education of Barack Obama.

He began his presidency with a pledge to close the military prison at Guantanamo Bay within a year. Within months, he realized that was impossible. And now he has essentially formalized George W. Bush’s detention policy.

Even the Tea Baggers, like newly minted Senators Rand Paul (R-KY) and Mike Lee(R-UT), are saying indefinite detention is wrong and calling for trials in civilian courts:

Fox News contributor Andrew Napolitano, subbing for Glenn Beck on his television show, hosted Sens. Rand Paul (R-KY) and Mike Lee (R-UT) to talk about a variety of issues. At one point, Napolitano mentioned Obama’s announcement and queried the two senators about their positions on indefinite detention. Lee and Paul both broke with the standard positions of their party, slamming the policy and endorsing trials for terrorism suspects instead. Paul said that he had met with a mother of a 9/11 victim who said that what she really wanted to see was justice, and that the best way to do that was to “have trials.” Lee said that detaining someone who “has been tried and found not guilty” is “particularly problematic”

Human Rights Watch points out that 47 of these men will never be tried. Those detainees will be able to “submit documentary evidence every six months, but will only go before the full panel once every three years”. However, as the press release states, “the use by the US of indefinite detention without trial still fails to meet the most basic elements of due process under international law”.

While Obama’s EO confirms the administration’s commitment to prosecuting  some cases in civilian courts

“Is added review an improvement? Yes. Does it make US detention policies lawful? No,”

said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. “Signing an executive order does not suddenly make it legal to lock people up and hold them forever without proving they have committed a crime.”

HRW further notes:

. . .compared to federal courts, military commissions have moved very slowly. During the nine years since the military commissions were first announced, military prosecutors have brought only six cases to completion, four of them by plea bargain. Federal courts, in contrast, have prosecuted hundreds of terrorism-related offenses during the same period, convicting, among others, 9/11 conspirator Zacarias Moussaoui and “shoe bomber” Richard Reid.

“Any trial in the military commission system carries the stigma of Guantanamo and will be tainted by a lack of due process,” Prasow said. “A verdict in the federal court system, in contrast, would be recognized internationally as legitimate.”

As I read through the executive order and news articles, all that I could think of was that surely, Dick Cheney will approve.

Up Date: As expected, Glenn Greenwald weighed in:

None of this is the slightest bit unexpected. The new Executive Order has been previewed for months and merely codifies what has long been Obama’s policy: “long” in the sense of “since he’s inaugurated”  — not, of course, “when he was a Senator and presidential candidate.” I’m writing about this merely to address the excuse from the White House and its loyalists that the fault for this policy, this inability to “close Guantanamo,” lies with Congress, which forced the President to abandon his oft-stated campaign pledge. That excuse is pure fiction.

It is true that Congress — with the overwhelming support of both parties — has enacted several measures making it much more difficult, indeed impossible, to transfer Guantanamo detainees into the U.S. But long before that ever happened, Obama made clear that he wanted to continue the twin defining pillars of the Bush detention regime: namely, (1) indefinite, charge-free detention and (2) military commissions (for those lucky enough to be charged with something). Obama never had a plan for “closing Guantanamo” in any meaningful sense; the most he sought to do was to move it a few thousand miles north to Illinois, where its defining injustices would endure.

(emphasis mine)

He also sited an article by Daphne Linzer at ProPublica:

While the order is new, most of the ideas it contains are not. This is the third time such a board has been created for nearly the same purpose. Two similar processes to review detainee cases were in place during the Bush administration. Like its predecessors, the Obama administration’s review process will operate outside the courts and will be subject to no independent review.

While the idea is recycled, Obama now owns it.