Saturday, November 18, 2006

Legal News ~ Kangaroo Military Tribunals Steam Full Speed Ahead While Cheney Exhorts The Faithful

Pope Cheney Blesses the Party Faithful

Cheney appears before the Federalist Society, archconservative lawyers' group & incubator of conservative legal thought for decades

Cheney & other luminaries of the neocon movement--all of whom serve in the GWB administration or were appointed to the Supreme Court by same--spoke to the Federalist Society, just days after the Republicon Revolution was soundly trumped at the election polls. But as to the latter, not if Dick Cheney & friends like Michael Chertoff have anything to say about it. We all know what a stubborn man Dick, particularly, is.

In today's Washington Post, an article entitled, "No Secrets Here--Federalist Society Plots in the Open" (title bar) opens thus:

"'Some people now have taken up the idea that, really, the Federalist Society is kind of like a modern-day da Vinci conspiracy, a secret society that controls all the legal jobs and all the legal decision-making in the administration,' Chertoff quipped. 'And of course that is nonsense.'

"Of course.

"Except, um... what about all those Cabinet secretaries, White House lawyers, Justice Department memo writers and appeals court nominees who are so tight with the society? Not to mention Supreme Court Justice Samuel Alito, a longtime Federalist and Thursday's dinner speaker.

"As Cheney said, to big, big applause from the audience of more than 600: 'And I assure you, nothing that's happened in the last two weeks' -- what election? --'will change [President Bush's] commitment to nominating first-rate talent like John Roberts and Sam Alito.'"

Neocons' Lasting Contribution to Legal Thought?--Guilty Until Proven Innocent (And We’re Not About to Let You Prove Innocence)

According to a report released yesterday by a
law professor whose students analyzed transcripts obtained via Freedom of Information Act request of what the Pentagon euphemistically termed “administrative procedures” at Gitmo--as opposed to illegal actions per the later Hamdan decision which sent Bushco back to the drawing board to come up with another, preferably legal means for determining the treatment of alleged terrorists-- the proceedings as practiced for the past several years are legal “shams.”

“Twenty-one first-year law students at Seton Hall University in Newark, N.J., analyzed the documents to create a database analyzed by eight second- and third-year students.
Among their findings:

"1. The government did not produce any witnesses in any hearing;

2. The military denied all detainee requests to inspect the classified evidence against them;

3. The military refused all requests for defense witnesses who were not detained at Guantanamo, but in 74 percent of the cases, the government denied requests to call witnesses even though they were detained at the prison;

4. In 91 percent of the hearings, the detainees did not present any evidence;

5. In three cases, the panel found that the detainee was 'no longer an enemy combatant,' but the military convened new tribunals that later found them to be enemy combatants.

“No American would ever consider this to be hearing,” [Professor] Denbeaux said. “This is a show trial.”

These kangaroo court legal procedures earned Bushco a spanking by the Supreme Court (minus 2 archconservative Justices who had to recuse themselves from participating in the decision) . Later we saw Bushco’s attempt to legalize these sorts of trials in the form of “military tribunals” in the recently passed Military Commissions Act ("MCA") --pushed through Congress just before the mid-term elections for the specific purpose of ostensibly satisfying the requirements of democratic government by belatedly letting Congress in on the lawmaking project. The MCA is currently being litigated. If you remember, the MCA sets up the "new" procedures by which Gitmo detainees will be railroaded--er, tried.

I’m not the only legal mind to think so.

Group of 7 former judges file “friend of the court” brief in opposition to the MCA

Why? Well, because it not only allows evidence obtained by torture, it makes it “presumptively” valid, among other heinously stupid & inhumane provisions.

“The military commissions set up by the Bush administration to try Guantanamo detainees may order indefinite detention of suspects based on evidence secured by torture, concluded an amicus curiae brief filed by seven former federal judges before the D.C Circuit Court of Appeals.

“Lawyers for Guantanamo detainees also filed separate briefs arguing that the Military Commissions Act of 2006 (MCA) does not prevent the court from hearing habeas corpus petitions from detainees.

“A court uses the writ of habeas corpus to examine whether a person is lawfully imprisoned by the government, and to compel release if the imprisonment is not legal. In common law countries, habeas corpus is an important instrument for protecting an individual's freedom against arbitrary state action.”

Catch that—“arbitrary state action?” You would think that a bunch of archconservative lawyers would not only comprehend but defend the concept of habeus corpus, ancient & fundamental to the conservative cause as it has always been--champions of small & presumably non-tyrannical government that the conservative movement originally purported to be (until , we surmise, it came to mean the preservation of such legal rights that nobody but the "right-thinking" should be able to enjoy). What more proof do still-sane Americans need that the aggro far right has gone way too far? Must we really allow them to wipe out the fundamental legal underpinnings of civilized society while crowing about their completely bankrupt adherence to "principle" as exemplified by the likes of Dick Cheney?

“Based on rules that compelled the tribunal to accept the government’s evidence against prisoners as presumptively ‘genuine and accurate,’ the tribunal relied on incriminating statements by detainees, even though they testified that the statements were obtained by torture and that medical records and other reports confirm the use of torture.

“The government has maintained that investigating allegations of torture was not ‘the CSRT's role’ and has claimed that the tribunals are permitted to rely on evidence ‘obtained through a non-traditional means, even torture’ to determine that a prisoner was an enemy combatant.

"The MCA interpretation of the review process falls short of the "adequate and effective" remedy constitutionally required, according to detainee lawyers, with the following shortcomings -

1. The administration contends that detainees, or their attorneys, are not entitled to classified information relevant to the case but not in the CSRT's record;

2. The administration claims that the Act forbids the Circuit court from considering any facts not in the record of the CSRT proceedings or excluding any part of the evidence presented in the record (for instance, evidence obtained by torture);

3. The government also interprets the Act to require the Court to uphold the CSRT's decision, unless there was no evidence supporting detention.

4. It does not allow the Court to assess the relative weight of the evidence, thus, as long as some evidence supported detention, this Court would be constrained to uphold the imprisonment;

5. Finally, the Circuit court itself has no power under the Act to order the release of a detainee if the CSRT process or its ruling is unlawful.

6. "The briefs further argue that the MCA does not prevent the detainees claiming rights under the Geneva Conventions. "

But fear not--not yet, anyway. Democratic Senator Patrick Leahy, next year's chair of the Senate Judiciary Committee, has already written to Alberto Gonzales & requested the release of documents the existence of which was unearthed by the (evil) ACLU.

Gonzales & Co.'s response was more of the same: hiding behind a claim of state secrets & confidential attorneys' opinions (a confidentiality principle the government does not respect if the attorneys are from the ACLU & the BushState wants to spy on them).

Leahy “asked the Justice Department to release two newly acknowledged documents, which set U.S. policy on how terrorism suspects are detained and interrogated.

“The CIA recently acknowledged the existence of the documents in response to a lawsuit by the American Civil Liberties Union.

“The first is a directive President Bush signed giving the CIA authority to establish detention facilities outside the United States and outlining interrogation methods that may be used against detainees.

“The second is a 2002 memo from the Justice Department's Office of Legal Counsel to the CIA's general counsel regarding interrogation methods that the spy agency may use against al-Qaeda leaders.

"’The American people deserve to have detailed and accurate information about the role of the Bush administration in developing the interrogation policies and practices that have engendered such deep criticism and concern at home and around the world,’ Leahy wrote Attorney General Alberto R. Gonzales.

“Leahy asked Gonzales to produce any revisions and analyses of those and other memos. He also requested agency documents that interpret the scope of interrogation practices permitted and prohibited by the Detainee Treatment Act or the Military Commissions Act.

“The Justice Department will respond appropriately, spokesman Brian Roehrkasse said yesterday.

“But he added that ‘it is vital to protect national security secrets,’ particularly in sensitive programs overseen by the intelligence committees. Roehrkasse also said the department will weigh whether the documents being sought fall under the category of confidential deliberations, including legal advice. "

All lawyers know that when you can't cover up the speciousness of your position anymore, it's time to push a novel argument & hope the judges buy it. In view of the recent elections, I'd say that the judges' gullibility has already been exploited to the max.


Blogger dusty said...

I get Common Dream's daily emails. Its one of my best sources for information and news. I have heard lately that some in the legal profession think the MCA is so poorly written it will be overturned..unless they get a Bush Judge..kangaroo court is right DP.

7:25 AM  
Blogger Demon Princess said...

Hey Dusty,

Everyone seems to agree that the MCA is indeed very poorly written--but why, is the question--slap-dash electioneering-stunt haste, or purposely broad & vague, leaving lotsa room for a very friendly court (the Supremes, for instance) to interpret & make "legal"...I think it's just plain scary. It could be the foundation of a new American despotism.

1:29 AM  

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