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.

Defense Secretary Gates Says Iran Diplomacy is the Answer, Not Military Action

Gates: "Diplomacy, not war in Iran"

Robert Gates made clear this morning that he does not see the Iranian problem as one that can be solved principally by military means:

“WASHINGTON (Reuters) — Defense Secretary Robert Gates said Sunday that diplomacy and sanctions rather than military action are the way to persuade Iran to change its nuclear program as divisions emerge in the Iranian leadership.

Iran’s nuclear dispute with the West intensified last week after Tehran disclosed that it is building a second uranium enrichment plant.

“While you don’t take options off the table, I think there’s still room left for diplomacy,” Gates said on CNN’s Sunday program “State of the Union.”

The Pentagon chief said military force would only gain time but not convince Iranians to abandon their quest for nuclear weapons.”

I find it fascinating that politicians don’t realize that military action in Iran would only increase the risk of terrorism  from groups such as Hezbollah.

I do disagree with Gates, however, on issuing sanctions on Iran, though. Sanctions would only internalize their conflict with the rest of the world and would rally the public around the Iranian government. Essentially, it would give Iranians a reason to bind together around a specific cause; American intervention.

And obviously, the fact that we can’t afford another conflict doesn’t seem to cross their minds.

Source: Below the Beltway

http://belowthebeltway.com/2009/09/27/secdef-gates-on-iran-diplomacy-is-the-answer-not-military-action/

Obama: Iran Is on Notice, Won’t Rule Out Military Action

Is Second Facility Really ‘Provocative’ or a Hedge Against Attack?

Iranian uranium enrichment facility

Citing Iran’s revelation earlier this week that it is constructing a second, smaller uranium enrichment facility, President Barack Obama demanded that the Iranian government “come clean” about his long-standing accusations of a nuclear weapons program, and said he would not rule out attacking the nation if they refused.

Obama said the second facility, reportedly an underground plant outside of Qom, was “inconsistent with a peaceful program” and claimed that the nation was “breaking rules that all nations must follow.”

Despite these claims, it isn’t apparent that Iran broke any rules with the facility. The IAEA only requires that it be informed six months before the facility is operational, which Iran apparently did on Monday. The IAEA has said the information it has been given suggests the facility, like Iran’s current one, is only designed to enrich uranium to 5%, useful only for civilian purposes.

Read the rest of the article at Antiwar.com.

ACORN Brings Down the Military-Industrial Complex

Ryan Grim reports that the Defund ACORN Act could end up defunding much, much more:

The congressional legislation intended to defund ACORN, passed with broad bipartisan support, is written so broadly that it applies to “any organization” that has been charged with breaking federal or state election laws, lobbying disclosure laws, campaign finance laws or filing fraudulent paperwork with any federal or state agency. It also applies to any of the employees, contractors or other folks affiliated with a group charged with any of those things….

Rep. Alan Grayson (D-Fla.) picked up on the legislative overreach and asked the Project on Government Oversight (POGO) to sift through its database to find which contractors might be caught in the ACORN net.

Lockheed Martin and Northrop Gumman both popped up quickly, with 20 fraud cases between them, and the longer list is a Who’s Who of weapons manufacturers and defense contractors.

After this revelation, we’ll see how long this bill stays above the water. My guess, not long.

Source: The Huffington Post

“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

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.

Liberals Elected Bush to a Third Term

George W. Obama

Well, it looks like Obama has broken another one of his campaign promises. While on the campaign trail, Obama often alluded to ending the Bush-era military commission system for prosecuting accused terrorists. While he never directly advocated its abolition, he was repeatedly quoted as saying he would reform the tribunals “by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice.” However, President Obama has reversed course today, and said he will plan to continue the military tribunals.

“Military commissions have a long tradition in the United States,” said Obama in a statement. “They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered.”

Lt. Cmdr. Brian Mizer, the military lawyer who defended Salim Hamdan, Osama bin Laden’s personal driver, disagrees with Obama’s assessment. In an AP interview, Mizer expressed his dismay in the president’s decision to continue the Guantanamo terror tribunals. Mizer states,

“What is particularly disappointing is the fact that the government is now openly stating that the reason he is reviving this commissions process is because it is going to be hard to obtain convictions in traditional courts. And this would be the first time in our Republic that we have created a court system [simply] to obtain convictions, and that’s more than disappointing.”

Lt. Cmdr. Mizer then discusses other alternatives available that could be effective in adequately hearing the cases of these terror suspects.

“It would be either Court marshal for those individuals who have committed actual war crimes under the laws of war, or in federal court. Our founding fathers created a system of justice that has endured for over 200 years. And there’s nothing unique about this threat that requires fake courts applying laws that did not exist at the time the offenses allegedly took place.”

What is abundently clear is there is little difference between the democrat officials and the republican officials in terms of foreign policy. Congratulations America, you voted Bush into his third term!

Torture: Pandora’s Box?

Waterboarding Americans?

On May 3, 1946, the International Military Tribunal for the Far East (Tokyo Trials) began investigations into atrocities of our prisoners of war committed by the Japanese during World War II. Among these atrocities were waterboarding. Seven Japanese generals were charged, convicted, and executed for their participation in waterboarding US soldiers to extract intelligence.

In 1983, Texas sheriff James Parker and three of his deputies were convicted for conspiring to force confessions. The method they used: water torture. The sheriff was sentenced to ten years in prison, and the deputies to four years.

The case against torture has been embedded deeply into our country’s history. When did this change? Did September 11 change everything?

Just like any other government program, when you give the government permission to torture terrorists, it won’t stop. In fact, it will most likely grow. When the Department of Homeland Security identifies you as a terrorist, either because you are pro-life, an environmental activist, own a gun, or are political, will torture be acceptable? Either way it won’t matter, because by then, it’s too late.