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Tag(s): Congress; Government; Guantanamo; Law; Military; Rights; Torture; Torture
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November 21, 2007 at 17:09:13

GITMO LAWYERS KEEP TRYING

by William Fisher Page 2 of 2 page(s)

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Under the Detainee Treatment Act (DTA), passed by Congress in 2005, judicial review of CSRT decisions is limited to a single court, the U.S. Court of Appeals for the District of Columbia.

Many in the legal and human rights communities see the upcoming arguments as potentially the first step in restoring one of America's founding tenets -- the rule of law - even to those whose goal might be to destroy the country.

Prof. David Cole of Georgetown University Law Center told us, "If our detentions of enemy combatants are ever to be accepted as legitimate by the rest of the world, we must be willing to conform our actions to basic principles of due process and fundamental fairness. Thus far, we have failed."

Cole's view is echoed by Prof. Peter Shane of the University of Ohio Law School. He told us, "When President Bush issued his November 2001 'Notice,' which set in motion the military commissions at Guantanamo, the Administration plainly hoped that the approach would provide a rough-and-ready version of 'Adjudication Lite' that, without anyone's interference, could provide the appearance of adhering to the rule of law without treating too fastidiously the rights of Guantanamo detainees."

Marjorie Cohn, a professor at the Thomas Jefferson School of Law and president of the National Lawyers Guild, expressed a similar opinion. She told us that the Supreme Court should "determine that the judicial review of the decisions of CSRTs do not provide an adequate substitute for constitutional habeas corpus."

Brian J. Foley, visiting associate professor at Drexel University College of Law, agrees. He told us that the CSRTs serve "no purpose other than to expand executive power. The CSRT simply rubberstamps the executive's earlier decision to imprison and interrogate suspects, by making it practically impossible for a prisoner to prove he is not an 'enemy combatant'."

The overwhelming view of the human rights community was expressed by Mary Shaw of Amnesty International USA. She told us, "The current system of legal tribunals suggests a lack of independent review, no guarantee of legal counsel, use of secret evidence that may be been obtained through unlawful methods such as torture, and no meaningful way for a defendant to confront the government's case against him. It's a no-win situation."

Some legal observers think there is another factor that might result in a ruling against the government. One source, who declined to be identified because he is not authorized to comment on the issue, told us, "The Supreme Court has an institutional aversion to being told by Congress or by the President which cases it can consider and which ones it can't. It's in the high court's DNA."

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http://billfisher.blogspot.com

William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now writes on subjects ranging from human rights to foreign affairs for a number of newspapers ond online journals.

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independent
Robert Winnindependent

Rights of Americans

American citizens have about the same rights under present interpretation of law that prisoners in Guantanamo have. Although the sixth Amendment to the Constitution guarantees the right to trial by jury in "all criminal prosecutions", since the 1960's judges in the United States have denied right to trial by jury except in cases which are serious felonies. This reasoning that most criminal prosecutions are not included in all criminal prosections stems from the idea that courts are legislative bodies which enact legislation through "case law".

The fact of the matter is that as long as the Constitution is in effect, the Constitution is the supreme law of the land, and judges in every state are bound thereby. A judge cannot amend the Constitution. Amendments to the Constitution have to come from Congress or from the legislatures of two thirds of the states.

It is true that judges can pretend that they cannot understand the Constitution, but when a person accused of a misdomeanor appears in court and asks for a trial by jury, these courts are faced with the possibility that a defendant can appeal his case on the grounds of being denied trial by jury all the way to the Supreme Court, keeping the case in court for years. We thus see that present interpretation of law depends on a frightened citizenry which will not insist upon their rights, a citizenry like we have in the United States, which is in debt, plagued with health problems, and financially insecure, presented only with opportunities to increase their insecurity. Such a citizenry needs a special class of people to make their decisions, people who are educated in the complexities of oppression. Is it any wonder that daytime television is an endless parade of court television shows?

Instead of a nation of laws we have today a nation of unlawful interpretations in which the letter of unjust court decisions is held higher than the supreme law of the land.

The status of "enemy combatants" is easy to determine. Since Congress has sole power to declare war, and the last war which was declared was declared in 1941, resulting in an unconditional surrender in 1945, there are no "prisoners of war" in Guantanamo. These prisoners can only be held as persons who have committed some crime against the United States, and, as such, they are entitled to all of the rights of any other accused persons in the United States, which at the present time, means that their criminal cases are not included in "all criminal prosecutions", and they are going to be treated the same way any other person accused of crime in the United States can be treated.

Accordingly, I am offering to solve this problem by declaring candidacy for the office of President of the United States as an independent candidate. If elected, I will put all of the prisoners in Guantanamo onto airplanes and take them back where they came from. If the United States is going to fight undeclared military conflicts in foreign nations, then military prisoner issues need to be resolved in the countries in question, not at a military base in Cuba.

The United States has become an "evil empire" controlled by ridiculous judicial interpretations which has no more regard for the rights of "enemy combatants" than it does for the rights of its own citizens. The rights of "enemy combatants" are easy to resolve. The rights of United States citizens are a more difficult situation.

Robert B. Winn

by Robert Winn (0 articles, 0 quicklinks, 0 diaries, 28 comments) on Friday, November 23, 2007 at 12:06:30 PM