Tag: Military Commissions Act

I’m cross-posting this from my diary over at DailyKos and my blog

In 2006, the Supreme Court ruled in Hamdan v. Rumsfeld that Bush’s military commissions violated the Geneva Conventions and the Uniform Code of Military Justice. As a result of that decision, the Bush administration asked Congress to pass legislation on military commissions. They passed the Military Commissions Act, which was struck down later.

From 2006-2008, Congress was giving the Bush administration nearly everything they wanted. They got their very own courts to try detainees and their very own spying program complete with immunity, even while the administration was suspected of holding detainees in secret CIA black sites.

Enter Dick Cheney.

On September 7, 2006, Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimson and Army Deputy Chief of Staff for Intelligence (G-2) Lt. Gen. John Kimmons showed up at a State Department foreign press briefing on the then-new DoD Directive 2310.10E (on its detainee program) and the also then brand-new Army Field Manual on interrogations (see note at end of post re links). Only the day before, Kimmons and Stimson had held a news briefing for U.S. reporters at the Department of Defense on the same subjects, which I covered in a recent article at AlterNet.

While few bloggers paid attention to the September 6 DoD briefing (except one noted reporter, as I’ll note later), most likely that was because President Bush had one of his infrequent news conferences the same day, and this one was a blockbuster. Bush acknowledged the existence of a secret CIA prison network. He also announced he was ordering the transfer of Khalid Sheikh Mohammed and 13 other “high-value detainees” to Guantánamo Bay to be put on trial.

The following letter has been faxed to the defense counsel of Mohammad Jawad, currently due to stand trial as part of the military tribunal process at Guantanamo. A juvenile when arrested in Afghanistan, Jawad’s likely innocence, and his abuse at the hands of both Afghan and U.S. captors has been well documented. His attorney, Major David Frakt, is asking interested individuals and organizations to write similar letters on his client’s behalf.

There is also a petition covering the primary details of the case, and asking for withdrawal and dismissal of charges against the former teenage combatant. I urgently ask my readers to at least consider signing the petition. A great wrong can be undone, if you help and take action.

The text of my letter:

I have never been tortured. But I have worked clinically with those who have, including U.S. POWs. I can tell you it breaks the mind and the body, the soul and the spirit, in a way that can never be forgotten.

Now John McCain cites his experience as a POW and torture victim as an anodyne to every mildly injurious political attack. While his painful experience as a POW matters in the history of the man, in our nation’s history, what matters now is that McCain has betrayed that experience, and the lives of thousands he could both know and not know. In doing so, he also betrayed the ideals of American fair-play and justice, going back to George Washington (who forbid his revolutionary army to engage in torture, even if the British did). As everyone should know, those ideals were not realized fully, and we are still fighting for them today. But McCain has trampled them in the mud.

By a 5-4 vote, the Supreme Court has ruled unconstitutional the provision of the Military Commissions Act of 2006 that suspended the use of habeas corpus by detainees in Bush’s “war on terror.” The MCA was pushed by Bush, and overwhelmingly approved by Congress, including both supposed anti-torture politician John McCain and many Democrats.

From Justice Kennedy’s majority opinion:

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives….

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law….

Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. (Thanks to Phil at Daily Kos for the quotes)

Good news for a change.  In 5-4 decision the U.S. Supreme Court has ruled that internees at Guantanamo are entitled to have their cases heard by a U.S. Federal Court.

So much for an October execution of KSM to improve Republican prospects in the election (or just make its theft more credible).

This AP Story is just a stub (update: now enough details to quote)-

Supreme Court backs rights for Guantanamo detainees

Associated Press

4 Minutes ago

WASHINGTON – The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.

The justices handed the Bush administration its third setback at the high court since 2004 over its treatment of prisoners who are being held indefinitely and without charges at the U.S. naval base in Cuba. The vote was 5-4, with the court’s liberal justices in the majority.

Justice Anthony Kennedy, writing for the court, said, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

Yesterday, Monday April 28, 2008, the man who used to be the Chief Prosecutor at Guantanamo  gave sworn testimony that puts the lie to the farce of the of the Military Commissions AcT (MCA) proceedings being used to try alleged terrorists. Col. Morris Davis told the tribunal hearing the case of Salim Ahmed Hamdan that

Defense Department general counsel William J. Haynes II, who announced his retirement in February, once bristled at the suggestion that some defendants could be acquitted, an outcome that Davis said would give the process added legitimacy.

“He said, ‘We can’t have acquittals,’ ” Davis said under questioning from Navy Lt. Cmdr. Brian Mizer, the military counsel who represents Hamdan. ” ‘We’ve been holding these guys for years. How can we explain acquittals? We have to have convictions.’ “

(Note, there is no transcript available at this time.)

There comes a time where the echoes of history begin to take on a most alarming toll, like the sounding of a gong announcing the approach of an ominous new enemy just like a previously-defeated old foe.

This is that time. Put on your tinfoil hat for a trip down memory lane, and follow me…

Crossposted from ePluribus Media 2.0, because one can never have enough foil and recycling is good for you. Also available in orange.