Friday :: Jun 30, 2006

Judging The Judgers

by pessimist

George's 'War on Terrah' isn't meeting with legal standards. The good news - it isn't just George that is getting spanked with the law. The bad news - the 'legal' principles George espouses are being used against him - and us.

Supreme Court Blocks Guantánamo Tribunals
Jamie Rose for The New York Times

"The executive is bound to comply with the Rule of Law that prevails in this jurisdiction," Justice John Paul Stevens, writing for the 5-to-3 majority [joined completely by Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, and partially by Justice Anthony Kennedy] said at the end of a 73-page opinion that in sober tones shredded each of the administration's arguments, including the assertion that Congress had stripped the court of jurisdiction to decide the case.

Ah! If it were the end of the issue once and for all! Alas, it is not:

A principal but by no means the only flaw the court found in the commissions
was that the president had established them without Congressional authorization.
[Breyer] wrote a brief concurring opinion of his own that focused on the role of Congress. "The court's conclusion ultimately rests upon a single ground: Congress has not issued the executive a blank check," he said.

Never fear! Arlen's here! When there's anti-Bu$hCo trouble, he's there on the double!

Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, introduced a bill immediately and said his committee would hold a hearing on July 11, as soon as Congress returns from the July 4 recess.

The so-called opposition party [SCOP] weighed in for the defense of Bu$hCo as well - even while playing partisan politics over another sensitive issue:

Representative Adam Schiff, a California Democrat who has also introduced a bill with procedures for trying the Guantanamo detainees, said the court's refusal to give an open-ended ruling to the force resolution meant that the resolution could not be viewed as authorizing the National Security Agency's domestic wiretapping.

At least, George was getting some kind of a defense, even if it was from a hated Democrat. The rest of the nation was left without any at all.

What of all those GOP 'Justices' who were put on the Court with great effort by the GOP to do its corporatist bidding?

The dissenters were Justices Clarence Thomas, Antonin Scalia, and Samuel A. Alito Jr.

This would indicate that the job of the GOP to subvert the courts of this nation is not yet complete, yet so much effort was expended just to get these three on the nation's loftiest bench that their agenda has been made clear to the American people. The Bu$hCo 'Rush Two Justices' Plan is showing what may prove to be a fatal flaw - One of their own couldn't participate:

Chief Justice John G. Roberts Jr. did not take part in the case. Last July, four days before President Bush nominated him to the Supreme Court, he was one of the members of a three-judge panel of the federal appeals court here that ruled for the administration in this case.

He might as well have not been there! Even though he has done a lot of damage to America in this session, the GOP lives by "What have you done for me today?".

There is hope for the future, assuming that someone doesn't follow Ann Coulter's call for conducting the non-Bu$hCo Justices to an early earthly exit:

In the courtroom on Thursday morning, the chief justice sat silently in his center chair as Justice Stevens, sitting to his immediate right as the senior associate justice, read from the majority opinion. It made for a striking tableau on the final day of the first term of the Roberts court: the young chief justice, observing his work of just a year earlier taken apart point by point by the tenacious 86-year-old Justice Stevens, winner of a Bronze Star for his service as a Navy officer during World War II.

The opinion made it clear that while this provision does not necessarily require the full range of protections of a civilian court or a military court martial, it does require observance of protections for defendants that are missing from the rules the administration has issued for military commissions. The flaws the court cited were the failure to guarantee the defendant the right to attend the trial and the prosecution's ability under the rules to introduce hearsay evidence, unsworn testimony, and evidence obtained through coercion.

Perhaps most significantly, in ruling that Common Article 3 of the Geneva Conventions applies to the Guantanamo detainees, the court rejected the administration's view that the article does not cover followers of Al Qaeda. The decision potentially opened the door to challenges, by those held by the United States anywhere in the world, to treatment that could be regarded under the provision as inhumane.

Justice Stevens said that because the charge against Mr. Hamdan, conspiracy, was not a violation of the law of war, it could not be the basis for a trial before a military commission.

Several articles I've linked to recently have asked the question "Is this how you promote the American version of justice?" As this next testimonial points out, at least in one instance we have:

Lt. Cmdr. Charles Swift, Mr. Hamdan's Navy lawyer, told the Associated Press that he had informed his client about the ruling by telephone. "I think he was awe-struck that the court would rule for him, and give a little man like him an equal chance," Commander Swift said. "Where he's from, that is not true."

When he finally gets to go home, maybe that seed will be planted and sprout. It may be needed to replace those lost when the nations that devised and protected such a judicial philosophy decline into totalitarianism.

I mentioned above that it isn't just George who is getting the bum's rush for misbehavior - his Killer Attack Lap Poodle, Tony, is as well:

Blair loses ruling in terror case
By Alan Cowell The New York Times
June 28, 2006

Throwing down a new challenge to the British government's tactics against terrorism, a High Court judge ruled Wednesday that so-called control orders - a form of house arrest without trial - were incompatible with European human rights laws.

In his ruling, Justice Jeremy Sullivan said control orders were incompatible with the respondents' right to liberty under a section of the European Convention on Human Rights.

The authorities, thus, had no power to make the orders and they must therefore all be quashed.
In a separate case last April, Sullivan found that the 2005 Prevention of Terrorism Act, which authorized control orders, was also incompatible with the European Convention because people held under control orders had not received a fair hearing. Both of Sullivan's ruling are likely to be scrutinized in the governments' challenge at the Court of Appeals, possibly next Monday.

Control orders were introduced after Britain's highest court, the Law Lords, ruled in December 2004 that a previous practice of indefinite detention of foreign terror suspects also contravened the European convention. Control orders can be used against both Britons and foreigners.

The newest case turned on the interpretation of Article 5 in the European Convention, which prevents signatories from depriving people of their freedom without trial unless governments first take the formal step of suspending basic rights under a state of emergency. The British have not taken that step , known as "derogation," arguing that control orders do not infringe the definition of liberty envisaged by the European code.

However, after the ruling Wednesday, Natalia Garcia, a lawyer representing people held under control orders, said her clients were "prisoners without rights who have not been charged with an offense and who, it is now clear, are denied their liberty for political reasons."

It isn't just foreigners who are 'denied their liberty for political reasons' in Britain. It is also happening to British citizens:

Blair laid bare: the article that may get you arrested
By Henry Porter
30 June 2006

In the guise of fighting terrorism and maintaining public order, Tony Blair's Government has quietly and systematically taken power from Parliament and the British people. The author charts a nine-year assault on civil liberties that reveals the danger of trading freedom for security - and must have Churchill spinning in his grave.

When governments attack the media, it is often a sign that the media have for once gotten something right. I might add that this column also comes with the more serious warning that, if rights have been eroded in the land once called "the Mother of Parliaments", it can happen in any country where a government actively promotes the fear of terrorism and crime and uses it to persuade people that they must exchange their freedom for security.

Churchill lived in far more testing times than ours, but he always revered the ancient tradition of Britain's "unwritten constitution". I imagined him becoming flesh again and walking purposefully toward Downing Street - without security, of course - there to address Tony Blair and his aides on their sacred duty as the guardians of Britain's Parliament and the people's rights.

For Blair, that youthful baby-boomer who came to power nine years ago as the embodiment of democratic liberalism as well as the new spirit of optimism in Britain, turns out to have an authoritarian streak that respects neither those rights nor, it seems, the independence of the elected representatives in Parliament.

He offers something new: not a police state but a controlled state, in which he seeks to alter radically the political and philosophical context of the criminal-justice system. "I believe we require a profound rebalancing of the civil liberties debate," he said in a speech in May. "The issue is not whether we care about civil liberties but what that means in the early 21st century."

And what is remarkable - in fact almost a historic phenomenon - is the harm his government has done to the unwritten British constitution in those nine years, without anyone really noticing, without the press objecting or the public mounting mass protests. At the inception of Cool Britannia, British democracy became subject to a silent takeover.

He now wants legislation to limit powers of British courts to interpret the Human Rights Act. The Act, imported from the European Convention on Human Rights, was originally inspired by Winston Churchill, who had suggested it as a means to entrench certain rights in Europe after the war.

Baroness Kennedy, a lawyer and Labour peer, is one of the most vocal critics of Blair's new laws. In the annual James Cameron Memorial Lecture at the City University, London, in April she gave a devastating account of her own party's waywardness. She accused government ministers of seeing themselves as the embodiment of the state, rather than, as I would put it, the servants of the state.

"The common law is built on moral wisdom," she said, "grounded in the experience of ages, acknowledging that governments can abuse power and when a person is on trial the burden of proof must be on the state and no one's liberty should be removed without evidence of the highest standard. By removing trial by jury and seeking to detain people on civil Asbo orders as a pre-emptive strike, by introducing ID cards, the Government is creating new paradigms of state power. Being required to produce your papers to show who you are is a public manifestation of who is in control.

"What we seem to have forgotten is that the state is there courtesy of us
and we are not here courtesy the state."

Just as in America, the British people seem to be forgetting that. Instead, they are meekly acquiescing as if such a change is inevitable:

I find myself regretting that my countrymen's opinions - their bloody-mindedness, their truculence in the face of authority, their love of insult and robust debate - are being edged out by this fussy, hairsplitting, second-guessing, politically correct state that Blair is trying to build with what he calls his "respect agenda".
"That compliance is what scares me the most. People are resigned to their fate. They've bought the Government's arguments for the public good. There is a generational failure of memory about individual rights. Whenever Government says that some intrusion is necessary in the public interest, an entire generation has no clue how to respond, not even intuitively And that is the great lesson that other countries must learn. The US must never lose sight of its traditions of individual freedom."
- Simon Davies, a fellow at the London School of Economics

Just as I found some hope in the words of Justice Stevens, Henry Porter finds solace in the protest actions of a few British citizens:

Those who understand what has gone on in Britain have the sense of being in one of those nightmares where you are crying out to warn someone of impending danger, but they cannot hear you. And yet I do take some hope from the picnickers of Parliament Square.

A small group of people - mostly young and dressed outlandishly - hold a tea party on the grass of Parliament Square. A woman looking very much like Mary Poppins passes plates of frosted cakes and cookies, while other members of the party flourish blank placards or, as they did on the afternoon I was there, attempt a game of cricket. The non-demo demo, or tea party, is a legalistic response to the law.

It is all rather silly and yet in Blair's Britain there is a kind of nobility in the amateurishness and persistence of the gesture. If anything is written on the placards, or if someone makes a speech, then he or she is immediately deemed to be in breach of the law and is arrested.

This collection of oddballs, looking for all the world as if they had stepped out of the Michelangelo Antonioni film Blow-Up, are challenging a new law which says that no one may demonstrate within a kilometre, or a little more than half a mile, of Parliament Square if they have not first acquired written permission from the Commissioner of the Metropolitan Police.

This effectively places the entire centre of British government, Whitehall and Trafalgar Square,
off-limits to the protesters and marchers who have traditionally brought their grievances
to those in power without ever having to ask a policeman's permission.

It's no different in Washington these days, mate!

But I digress.

Here is where Hope Grows In Porter's Fields:

May the numbers of these young eccentrics swell and swell over the coming months, for their actions are a sign that the spirit of liberty and dogged defiance are not yet dead in Britain.

Brings to mind the climactic scenes in V For Vengeance! But I digress.

Let's hope that the spirit of liberty and dogged defiance are dead neither in Britain nor in the EU in general. While Americans seem to have forgotten what it means to not have liberty and freedom, in the EU - where many still remember the horrors of the Nazi occupation of their lands - they are taking action against the neoconazis of Bu$hCo:

No repeat over CIA flights urged
27 June 2006

Europe's human rights body has called for steps to ensure terror suspects never again "disappear into thin air" from European soil. The Council of Europe accused states of colluding with the CIA on secret flights transferring prisoners to third countries where they could be tortured. It urged governments and parliaments in each state to hold their own inquiries.

Earlier this month, Swiss Senator Dick Marty published a report accusing 14 European countries of helping the CIA spin a "spider's web" of disappearances, secret detentions and illegal flights. The report, based on air traffic logs, satellite images and personal testimonies said there was evidence that Poland and Romania had allowed the CIA to set up secret detention centres on their territory.

[T]he Parliamentary Assembly of the Council of Europe approved on Tuesday a resolution based on the Marty report, which said it had been "demonstrated incontestably" that secret detentions and illegal flights took place.

It calls for:

* In-depth inquiries at a national level
* A review of the legal framework regulating the intelligence services
* A review of agreements with the US on the use of military infrastructure to ensure they comply with human rights norms
* Efforts to develop "a truly global strategy" against terrorism, with the US

Member states are obliged to respond.

Read the full draft report [469kb PDF]

Something needs to happen soon to take down these PNAC Pirates of the Coalition. Their corporatist agenda is failing miserably, as the wars of conquest begun in Afghanistan and Iraq have become bloody stalemates, with the residents of the occupied lands fighting every bit as valiantly as did the Maquis and the other European Resistance movements against Hitler's Wehrmacht.

They - despite all the Bu$hCo crap about bringing democracy to their lands - are actually practicing democracy - by deciding (through their resistance to externally-imposed governance change) what kind of a government they are willing to accept.

Their resistance is already having a noticeable effect in the Land of George and Tony's First War of Aggression:

UK's Afghan mission is failing, says drugs body
By Kim Sengupta and Gustavo Montes
30 June 2006

Instead of taking part in the reconstruction of the country shattered by decades of war, British forces find themselves "at war" with a resurgent Taliban and alienated from an increasingly hostile population. The UK mission in Afghanistan is in danger of failing because of "misguided" support for American military and drug-eradication policies, an international think-tank has claimed.

The study by the Senlis Council, a drug policy think-tank, predicts that the violence in the south will escalate. The Taliban and their allies have been exploiting the anger felt by farmers at the destruction of opium crops and by civilians who have suffered in US-led operations.

The Senlis report stated "the unbalanced approach of the international community, which has mainly been directed towards counter-narcotics and counter-insurgency, has not only been ineffective and indirectly responsible for the growing state of war, it has also ignored the ... needs of the Afghan people."

Lt-Gen David Richards, the British officer who is due to take over all NATO operations in Afghanistan with US troops under his command, warned the [poppy] crop eradication programme was driving farmers into the hands of the Taliban and the Western forces are creating new enemies.

Emmanuel Reinert, the council's executive director, said: "There is no peace to keep, there is no peace at all. It is a war mission, but it is not a mission that can be won with a military approach or otherwise you will be seen as invaders."

It appears that we already ARE seen by Afghans as invaders... :

The Senlis Council says villagers cannot differentiate between foreign troops. One researcher said that when she tried to explain the difference at a village shura (council) in Helmand, one elder said: "You cannot tell the difference between our tribes, so how can you expect us to tell the difference between yours.
"As far as we are concerned,
they are all foreign soldiers who are Christians
and they are in our country."
The Taliban and their Islamist allies have forced more than 200 schools and colleges to close. Jamilai Nassi, the headmistress of a girls' school in Lashkar Gar, the capital of Helmand province, received letters warning her to shut down the school. One read:
"In this school they are teaching infidel books to girls
and we don't want these girls to become infidels...
"I don't want you or the students to die at this young age. This is the last warning. If you are tired of life, then come [to the school] and your blood will be on your hands."

Armed men also visited Ms Nassi's home at night.

... and there is nothing that Bu$hCo puppet President 'UNOCAL' Karzai can do about it:

When an international organisation reported what was happening to the British base at Lashkar Gar, an officer said that it was a matter for the Afghan authorities.

Last week Hamid Karzai, the President, levelled unprecedented criticism at the US-led coalition'stactics, deploring the deaths of hundreds of his countrymen and women while the Taliban grows in strength. About 600 people have been killed this year.

It isn't going to matter Bu$hCo does, there is no way to fix this. We are going to have to leave both Afghanistan and Iraq, and not get into any more mischief anywhere else in the world. Bu$hco may not care that the consequences of their actions may not come back to haunt us for a few years yet, but I do. I want to minimize the damage.

We are going to have to pull back to boundaries we can afford - and which we can defend, if necessary. We can't afford to be the dominant power of the world anymore. Those days are gone.

America did its bit for the world back in 1945, when for a multitude of reasons both good and bad, we put the war-ravaged world back on its feet and gave much of it a good measure of prosperity. But rather than let the world grow up and complete its healing on its own, American governments assisted corporate efforts to convert the world into an expanded plantation for the economic benefit of the few. As this effort became ever more expensive, more Americans were shunted aside to join the majority of the world in the realm of the Have-nots.

We passed the tipping point many years ago, about the time of Ronald Reagan coming to power. We didn't understand that the Gravy Train had derailed, and that our share of the spoils was going to be cut back to ensure that those with better connections would not have to suffer privation. That group becomes smaller by the day, as more former executives discover that the pensions they thought they had have disappeared, that government retirement services once totally covered now come with surcharges and fees - if they still exist at all.

I've mentioned before that the super-wealthy have been moving their money off-shore so that once they abandon this land, they won't have to worry about eating when they arrive in their new homelands. The rest of us aren't going to be getting that option.

We will be subject to the mercy of those who come to collect what we have left after the super-wealthy depart to pay off their foreign-exchange debts. We had better hope that they have a concept of mercy in their beliefs - at least one that is more developed than that of the BFEE-PNAC Petroleum Pirates who have squandered our legacy for personal and ill-gotten gain.

I for one won't appreciate being expected to pay for their sins.

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