Military lawyers criticize tribunal

[NNN0LHI]

http://www.upi.com/view.cfm?StoryID=20040114-072539-7001r

WASHINGTON, Jan. 14 (UPI) -- Five U.S. military lawyers assigned to defend prisoners captured in Afghanistan in a newly created military tribunal filed a sharply worded "friend of the court" brief with the U.S. Supreme Court Wednesday, arguing against the tribunal's legitimacy, the detention of the prisoners without hearings, and the Bush administration's attempt to have the judicial branched "usurped."

The director of the National Institute of Military Justice, an organization that tracks and analyses military justice issues, called the brief a "watershed" event for the American military's legal community.

"I don't know of any case in which uniformed defense counsel have participated in friend of the court brief in a civilian court other than the court of appeals for U.S. military justice," said Eugene Fidell.

The 30-page brief pulls no punches in its criticism of the legal issues surrounding the more than 600 detainees being held at Guantanamo Bay Naval Base, ostensibly outside the reach of civilian courts.

"If there is no right to civilian review, the government is free to conduct sham trials and condemn to death those who do nothing more than pray to Allah," the brief states.

more

[ayeshahaqqiqa]

1. Right on!

People are beginning to wake up to the very real danger this Administration poses.

[madrchsod]

2. another nail in the coffin of

the military`s support of bush and his policies. all this could lead to a war crimes trial in the future. the rule of law may mean nothing to bush but in th real world it does matter.....

[rooboy]

3. And this article...

<snip>
Hicks family cheers stand against military trial

The father of alleged Taliban fighter David Hicks has welcomed a move by his son's Pentagon lawyer to tell the United States Supreme Court that a military trial would be unconstitutional.

Major Michael Mori and other military lawyers acting for Guantanamo Bay prisoners have told the court that David Hicks and other prisoners should be given the right to be heard a civilian court.

Terry Hicks says he is relieved to hear Pentagon lawyers have argued that point.

"It's good that now that there's someone within the military system that has come out and said that it's unconstitutional and it's the possibly the wrong way of going about it," he said.

</snip>

http://www.abc.net.au/news/newsitems/s1025866.htm

[Media_Lies_Daily]

4. Good to see the military is getting fed up...

...maybe they should just take over and detain the NeoCons indefinitely in an undisclosed location.

[ramapo]

5. Gutsy lawyers

Just read the article....some brave soldiers there

[jpgray]

6. These guys are my freakin' heroes

Way to go! :) There are still good people in our system.

[goforit]

7. Should be interesting if the S.C. chooses inhumanity.

If they do they will certainly go down in history as the worst
judges ever known in history.

[jpgray]

8. *kick*

[Norquist Nemesis]

9. I sincerely hope we see indictments

of treason (and high treason) against Bush, Cheney, Wolfowitz, Rove, Rumsfeld, Perle, Rice, Card, to name a few. We've already lost our credibility globally, not to mention pissed of the entire world.

Getting these people out of government won't be enough. They must be tried, convicted, and punished. (Isn't the penalty for treason death?)

[Judi Lynn]

10. It's true that it took a LOT of courage and a powerful conscience

to involve each of these lawyers in this effort.

From the article:

"The (U.S.) Constitution cannot be contorted into this senseless position without doing grave damage to the rule of law," the legal team wrote. "Concerns that the executive has usurped the function of the judiciary are at the highest when the executive seeks to deny access to a right as fundamental as habeas corpus.

"This right is part of our constitutional bulwark against tyranny," the brief states, quoting the Federalist Papers. (snip)

Thanks so much. This is great for our morale!

[Judi Lynn]

11. Do you remember this article from the NY Times, in March 2002?

It just might do you some good to refresh your memory on what Donald Rumsfeld had to say on the subject of captured detainees:

(snip) THE PRISONERS: Rumsfeld Backs Plan to Hold Captives Even if Acquitted
By Katherine Q. Seelye, The New York Times


March 29, 2002


Defense Secretary Donald H. Rumsfeld today defended the Pentagon's plan to keep some
prisoners from the Afghan war in captivity in Cuba indefinitely even if they are acquitted in military
tribunals.

To release them after an acquittal so they could return to the battlefield, he said, would be
"mindless."

But he did say that some prisoners had already been released, evidently having provided little
intelligence about any future attacks.

He implied vaguely that some of those prisoners might have been released from the United States
naval station in Guantánamo Bay, Cuba, but an officer in Guantánamo said by phone that the
base still had in custody the same 300 prisoners it had since Feb. 15, when the United States
stopped transferring prisoners from Aghanistan to Cuba because Guantánamo ran out of room.

Instead, officials said, the prisoners set free were released from custody in Afghanistan, but there
was no exact count of how many or under what circumstances.

No new prisoners have been sent to a temporary camp at Guantánamo for more than a month.
The military has just hired 400 Filipino engineers and construction workers to build a permanent
prison in Cuba for the detainees. The new camp is to be ready by April 12 and will accommodate
408 prisoners. Eventually it could house up to 2,000 prisoners.

The Pentagon has not yet established which prisoners will face charges at a military tribunal,
nor has it settled on a location for the trials, Mr. Rumsfeld said today at a Pentagon briefing.
But he did indicate that prisoners could be held indefinitely, not just until the end of the war in
Afghanistan but until the end of the war on terrorism - which could last years. (snip/...)

http://www.musiciansforpeace.org/librarydocs/theprisoners.html

[teryang]

12. *resident brazenly violates Constitution

<The Bush administration has argued that the special nature of the war on terrorism and the fact that the prisoners are held not on sovereign U.S. territory means it does not have to observe the requirements of the U.S. Constitution or the customs of international law.>

If an American government official acting in the United States violates the law of the United States of America by his actions outside the United States he does not have to observe the requirements of the U.S. Constitution?

The Orwellian argument is patently absurd. The office of President is the commander in chief of the armed forces. Yet the Courts-martial of members of the military no matter where they are conducted are subject to the civilian appellate courts, the Court of Military Appeals, and the Supreme Court. An American constitutional office cannot avoid his obligation to uphold the Constitution with arguments about territorial jurisdiction.

[BeFree]

13. Question

Has anyone ever been convicted of violating the oath of office to "Uphold the Constitution" ?

It appears that this group of squatters has violated the Constitution.

What legal means do We, the People, have to bring this issue to a judge? How do we petition the government in a case such as a violation of the Constitution?

Has the ACLU tried? If not, why not? If they can get away with the crimes in Gitmo, they will try it here. Oh, wait, they have tried it here -- remember citizen Padilla?

Somehow, someway, we've got to be able to show our support for the Constitution. Maybe the SCOTUS needs to see us gathered on the steps of the court demanding that the government uphold their oath of office.

[teryang]

14. Don't think so

The notion that the executive branch can usurp the functions of the judiciary is what is at stake. I don't even think the executive branch has an arguable case here, it is pure cynicism. They are trying to relieve the government of the checks and balances which require them to prove a case. The excutive's position is that the Supreme Court has no jurisdiction over the executive when the executive decides that the Supreme Court has no jurisdiction. The fact that the Supreme Court has already taken jurisdiction for purposes of habeus review will make their conclusion that much more dangerous if they decide that review by civilian appellate courts in the judicial branch is disallowed under the circumstances.

I don't see how the Supreme Court can divorce themselves from their Constitutional jurisdiction over actions of the executive based upon the specious territoriality argument. If so, American citizens could be abducted and held captive on foreign territory under exclusive Federal control by presidential order and/or executed, and the judicial branch would have no say in the matter. There is a big difference between asserting judicial review jurisdiction and reversing individual cases.

The territoriality argument is specious because the United States has exclusive dominion and control over Guantanomo. The authority that the Secretary seeks to assert might be appropriate in an occupation zone like Iraq, if adjudication processes otherwise comported with international law (which they don't). The administration is looking for a black hole jurisdictionally which doesn't exist. The executive branch must always comply with the Constitution. It may not do so often as we know with this government but it may not proclaim a right to do so.