Napolitano’s Case Against Military Tribunals

Fox News’ Judge Andrew Napolitano makes the case against using military tribunals for suspected 9/11 terrorists in Sunday’s LA Times. Excerpt:

The casual use of the word “war” has lead to a mentality among the public and even in the government that the rules of war could apply to those held at Guantanamo. But the rules of war apply only to those involved in a lawfully declared war, and not to something that the government merely calls a war. Only Congress can declare war — and thus trigger the panoply of the government’s military powers that come with that declaration. Among those powers is the ability to use military tribunals to try those who have caused us harm by violating the rules of war.

The last time the government used a military tribunal in this country to try foreigners who violated the rules of war involved Nazi saboteurs during World War II. They came ashore in Amagansett, N.Y., and Ponte Vedra Beach, Fla., and donned civilian clothes, with plans to blow up strategic U.S. targets. They were tried before a military tribunal, and President Franklin D. Roosevelt based his order to do so on the existence of a formal congressional declaration of war against Germany.

In Ex Parte Quirin, the Supreme Court case that eventually upheld the military trial of these Germans — after they had been tried and after six of the eight defendants had been executed — the court declared that a formal declaration of war is the legal prerequisite to the government’s use of the tools of war. The federal government adhered to this principle of law from World War II until Bush’s understanding of the Constitution animated government policy.

The recent decision to try some of the Guantanamo detainees in federal District Court and some in military courts in Cuba is without a legal or constitutional bright line. All those still detained since 9/11 should be tried in federal courts because without a declaration of war, the Constitution demands no less.

Read the rest at: Los Angeles Times

Watch the video below to see Judge Napolitano debate Bill O’Reilly regarding military tribunals and civilian courts.

Judge Bill Sowder’s Experience on Military Tribunals

Gitmo Detainees

Last night, the Lubbock County Republican Party held its Executive Committee meeting with special guest speaker, Judge Bill Sowder. Judge Sowder is a lieutenant colonel in the Army Reserves. He was called called for active duty to serve as a senior legal advisor for the military commissions in Guantanamo Bay.

He started out with a disclaimer that President Obama is his boss and that he would not criticize the orders from the Commander in Chief regarding closing Gitmo and trying detainees in New York. He then shared his experiences in working within the military tribunal system.

He was adamant that military tribunals offer due process and afford the defendants the same rights as in civilian trials. He did admit, however, that there are two distinct differences between military tribunals and civilian courts. First, the use of evidence presented through the use of “enhanced interrogation techniques” was permissible if the judge reviewed the context of the information and believed it to be reliable. Second was the use of “hearsay” as evidence against the defendant was permissible; again, after review from the judge to determine reliability and context.

Sowder was quick to say that the judges would not accept evidence obtained through torture. He didn’t say what the judges defined as torture and how it differed from “enhanced interrogation techniques”.

In all, I believe his experience of military tribunals depicted a fair trial system; the same system that soldiers are awarded.

With that said, there were a few questions I wish I could have asked him. The first would be if he ever witnessed a trial where the defendant was found not guilty. If so, what happened in those situations? There have been dozens of accounts of where innocent men have been detained for years, only to be released. What happens in those situations? Does the US offer any type of reconciliation?

Judge Sowder said he liked the military tribunal system –without criticizing the decision to try them in New York– because the defendants were at war with the US. He believes that since they are “soldiers” at war with us, they should be tried for war crimes through the military tribunal system just like any other prisoner of war.

This brings up an interesting question. What constitutes a “prisoner of war”? Does the prisoner’s personal declaration of war on the US define him as a prisoner of war? He said that if they were picked up off the battlefield then it is easier to label them as such. I’d disagree with him there, but only because we haven’t officially declared war on either Afghanistan or Iraq. According to Article 2, Section 8 of the US Constitution, only Congress can declare war; which they did not. Because of this oversight, it creates a legal quagmire. It would have been easy to label them as prisoners of war if we declared war, but since we didn’t, they are in the gray murky territory of “soldiers” and “criminals”.

So while Sowder’s speech did inspire confidence that the military tribunals weren’t a “guilty until proven innocent” process, I wish he would have expanded more on the two key areas of detention of innocent men and whether “enemy combatants” are clearly prisoners of war.

Judge: Texas Ban On Gay Marriage Unconstitutional

Judge declares Texas' gay marriage ban unconstitutional

A Dallas judge declared Texas’ ban on gay marriage unconstitutional yesterday. In a case involving two men married in another state, the judge allowed them to get a divorce.

To be honest, I really don’t care either way. I disagree with the judge that it’s unconstitutional for a state to decide what type of marriage is acceptable or not. However, I don’t think marriage should be in the realm of government control to begin with.

Marriage is a sacred commitment you make with another person (or persons) before God. This is a religious ceremony, not a government ceremony. If your faith allows you to marry someone of the same gender, then so be it.

The government’s only role in the whole affair should be to make a contract between the parties involved, called a civil union. It’s a contract between consenting adults that lays out various legal questions regarding the involvement (death, illness, etc.).

However, the judges decision that it is unconstitutional is not accurate. Constitutionally, it’s something the state can decide if it so chooses. The same can be said with abortion. They are both unconstitutional at the national level, but the 10th amendment gives states ability to make such laws. I would just prefer the state stay out of marriage all together and just enforce civil unions and let the religious organizations perform and acknowledge marriages.

Source: NBC Dallas-Fort Worth

Lubbock Hero of the Week: Lawyer Ben Webb

Ben Webb

Lubbock lawyer Ben Webb was strip-searched and jailed because he refused testify against his former client as ordered by Judge Jim Bob Darnell. Yes, his real name is Jim Bob.

Webb’s courage to stand up for his former client’s rights is a shining example of true patriotism.

A Lubbock attorney this morning was exculpated after a judge signed an order finding him not guilty and releasing him of his bond obligations.

Ben Webb was arrested and jailed in June of this year after he refused to testify against a former client on trial in the 140th District Court.

Judge Jim Bob Darnell found him in contempt and ordered him arrested.

He was strip-searched and jailed before another judge released him on a personal recognizance bond.

Darnell also stipulated he must pay back any attorney fees he collected for representing the defendant he refused to testify against, Donald R. Johnson.

Visiting Judge Paul Davis, appointed after Darnell recused himself, freed Webb by signing the order agreed upon by Rod Hobson, Webb’s attorney and John Grace, who represents the county.

“I feel two things today: pride and vindication,” Webb said at a news conference on the courthouse lawn. “It feels good to know what I felt was right was right.”

Darnell declined comment.

Source: Lubbock Avalanche Journal

“No Credible Threat,” But Flurry of Terror Alerts Issued

Though both the FBI and the Department of Homeland Security concede that they have “no information regarding the timing, location or target of any planned attack,” they have issued a flurry of terror alerts across the country in the past few days.

The alerts sparked a lot of enhanced security across the nation, but even those doing the enhancing were quick to note that there was “no credible threat” to any of the potential targets.

The latest speculation about attacks appear to stem from the high-profile arrest of 26-year old airport shuttle driver Najibullah Zazi, which officials have claimed was linked to terrorism but has not prompted any terror-related charges.

The primary evidence culled from Zazi’s arrest were “bomb-making materials,” which consisted of little more than a battery powered scale and some extra batteries for it. It has been speculated that the scale might hypothetically have been intended to weigh explosives at some point in the future. An imam who was an FBI informant was also arrested because he told Zazi he had been asked about him.

Read the entire article at Antiwar.com

Democrats Not Backing Obama on Patriot Act Extension

Rep. John Conyers (D-Mich.) (WDCpix)

Eight years after it was passed, the USA Patriot Act remains among the most controversial pieces of counterterrorism legislation in the so-called “war on terror.” On December 31 of this year, some of its more controversial provisions will expire, forcing Congress to revisit it and decide whether to reauthorize the expiring provisions, amend them, or re-work the entire law.

The sections set to expire give the government the authority to access business records, operate roving wiretaps and conduct surveillance on “lone wolf” suspects with no known link to foreign governments or terrorist groups. A justice Department official last week told Congress that the Obama administration supports their renewal. Assistant Attorney General Ronald Weich wrote to Senator Patrick Leahy (D- Vt.) that the administration would consider stronger civil rights protections “provided that they do not undermine the effectiveness of these important (provisions).”

But at a House Judiciary Committee hearing on Tuesday, it was clear that Democrats don’t uniformly support the White House on that. Some Democrats on the committee were still bitter that some Republicans back in 2001 had pushed aside a bipartisan version of the bill produced by the Judiciary Committee in favor of a version substantially revised and altered by the Rules Committee, led by then-chairman David Dreier (R-Calif.).

“Then-Chairman Dreier under Lord knows whose instructions, substituted that bill for another bill, that we at judiciary had never seen. So we come here today now to consider what we do with those parts that are expiring” and that, according to committee Chairman John Conyers (D-Mich.), created problems that the bill he’d approved would have prevented.

Read the entire article at The Washington Independent

Obama to Extend Patriot Act Provisions

Big Brother is watching you

President Obama has once again let down civil rights activists during his first year as president. Not content with still enforcing national cannabis laws in states that have made them legal; not content with continuing military tribunals and keeping Gitmo; not content with expanding the war in Afghanistan and killing more civilians;  Obama has decided to extend three key provisions of the Patriot Act.

The three “anti-liberty” provisions:

1. The Lone Wolf Provision – Created to conduct surveillance on suspects with no known link to foreign governments or terrorist groups.
2. The Roving Wiretaps Provision – Designed to allow investigators to quickly monitor the communications of a suspects who change their cell phone or communication device, without investigators having to go back to court for a new court authorization.
3. The Business Records Provision -  Allows for your financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records to be searched without your knowledge or consent, providing the government says it’s trying to protect against terrorism.

But it’s OK, because he’s going to change Washington! Give me a break!

Source: Yahoo! News

Sources of 9/11 Commission Report Were Tortured

9/11 Commission Report

An MSNBC investigation into the 9/11 Commission Report details how pieces of data were obtained through the use of “harsh interrogations.” From the report:

The 9/11 Commission suspected that critical information it used in its landmark report was the product of harsh interrogations of al-Qaida operatives – interrogations that many critics have labeled torture. Yet, commission staffers never questioned the agency about the interrogation techniques and in fact ordered a second round of interrogations specifically to ask additional questions of the same operatives, NBC News has learned.

Majid Khan was one of those sources subjected to harsh interrogation techniques in order to obtain information. As the report states:

“The Americans tortured him for eight hours at a time, tying him tightly in stressful positions in a small chair until his hands feet and mind went numb. They retied him in a chair every hour, tightening the bonds on his hands and feet each time so that it was more painful. He was often hooded and had difficulty breathing. They also beat him repeatedly, slapping him in the face, and deprived him of sleep.

“When he was not being interrogated, the Americans put Majid in a small cell that was totally dark and too small for him to lie down in or sit in with legs stretched out. He had to crouch. The room was also infested with mosquitoes. This torture only stopped when Majid agreed to sign a statement that he wasn’t even allowed to read.

Ultimately, Khan’s testimony was taken out of the final report, but this shows just how unreliable information obtained through torture can be. In fact, the Commission Final Report recommended that the US encourage an end to torture.

Legalize Cannabis, Support the Texas Firearms Bill

Medicinal Cannabis

Yes, you read that title right. If you would like to legalize cannabis, it would be in your interest to support the Texas Intrastate Firearms Bill (HB 1863). Under this legislation, all federal laws regarding firearms are null and void if and only if the firearms are manufactured, sold, and currently reside in Texas.

Currently, the federal gun laws are put into place using the Interstate Commerce Clause of the US Constitution, meaning that any merchandise traveling between the states falls under federal jurisdiction. The logic behind the Texas Intrastate Firearms Bill is that if the guns are made in Texas and never leaves Texas, under the 10th amendment, the State of Texas has the legal jurisdiction over the federal government to regulate those firearms.

How does this apply to cannabis you may ask? Good question. California has passed several laws regarding the use of medicinal cannabis. Doctors are allowed to prescribe cannabis for a variety of ailments and certified businesses are allowed to sale the cannabis. Also, patients are allowed to smoke cannabis as recommended by their doctor.

However, despite the State of California laws that allow for the sale of cannabis, federal agents have raided those businesses selling medicinal cannabis and imprisoned the business owners. The federal Drug Enforcement Agency has contended that federal law supersedes state law in these matters. Fortunately, President Obama promised  an immediate end to the raids in states where legislation was passed to legalize cannabis. Unfortunately, the DEA has not stopped its raids and continues to confiscate business property and arrest business owners.

The Texas Intrastate Firearms Bill would open the door for the federal government to recognize the rights of states to enact any laws within that state without interference from the federal government, provided those laws are not in violation of the US Constitution.