Monday, May 7, 2007

Murder Complicates Prosecutorgate

Following the threads of Prosecutorgate gives rise to more questions. In the case of John McKay, former U.S. Attorney from Washington State, was he fired to cover up a murder?

The Washington Post reports that McKay was singled out for dismissal 18 months earlier than previously revealed because senior Justice Department officials did not like his interest in investigating the murder of a federal prosecutor.

On October 11, 2001, federal prosecutor Tom Wales was killed by a bullet through his neck while sitting in front of his computer at home. If the murderer was motivated by Wales' work as an assistant United States attorney, it would have been the first time a federal prosecutor had been slain on the job. FBI agents sent to investigate suspected Wales was targeted by a Bellevue airline pilot who was once prosecuted by Wales. The pilot, a firearms enthusiast, is also believed by agents to have resented Wales' off-duty activities as a gun-control advocate. The agents could never prove conclusively that the pilot was their man.

Kyle Sampson, former chief of staff to Attorney General Alberto Gonzales, told congressional investigators he believes he "may have" recommended McKay's removal in March 2005 because of conflicts with senior Justice Department officials over the Wales murder investigation.

The connection between the Wales investigation and McKay's firing first came to light as former deputy Attorney General James Comey testified before a Congressional hearing on Thursday, May 3. He said that McKay "cared very passionately about finding the person who killed" Wales.

No Justice official traveled from Washington, D.C. to attend Wales' memorial service.

I don't want to sound conspiratorial but look at the facts. Kyle Sampson told Congressional investigators that John McKay was a problem 1-1/2 years before previously noted because of his ardent pursuit of the murderer of an assistant federal prosecutor in the Seattle office. Senior Justice Department officials didn't like that. Why? Did they not care for Wales because of his politics? Did they just not care? Or is there something more sinister at work?

Friday, May 4, 2007

The Trial of 1984

It is said that our government is like the fictional authorities in Orwell's 1984 and Kafka's The Trial.

Do Bush's maxims include "Ignorance is Strength" and "Freedom is Slavery"? Does he want to eliminate language so as to constrict thought? After all, expansive, nuanced language leads to complicated ideas. Round-the-clock surveillance? Pshaw. A constant state of warfare? Balderdash.

Can you be arrested for no reason and subjected to the "judicial" process without ever knowing what it is "they" think you have done? You are never told what you are on trial for. When you declare your innocence, you're asked, "Innocent of what?"

Please read the two previous postings (they make up a series) about the scary state of affairs we find ourselves in.

Thursday, May 3, 2007

How Bush's Definitions of Habeas Corpus and Enemy Combatant Combine to Destroy the Constitution and all our rights, Part II

In Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), Hamdan petitioned for a writ of habeas corpus, claiming that the military commissions set up by the Bush administration to try detainees at Guatanamo Bay, "violate both the Uniform Code of Military Justice and the four Geneva Conventions." In a 5-3 ruling, the Supreme Court rejected Congress's attempts to strip the courts of jurisdiction over habeas corpus appeals by detainees at Guantanamo Bay. The Court effectively agreed with Hamdan, declaring that trying the detainees under the Guantanamo military commission (also known as the tribunal) was illegal under U.S. law and the Geneva Conventions.

Quoting the judgment (Paragraph 4, Page 4): "The military commission at issue lacks the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949."

This ruling presented the Bush administration with the risk of liability for war crimes. The War Crimes Act of 1996, passed by Congress and signed into law by President Clinton, defines a war crime to include a "grave breach of the Geneva Conventions". All the Conventions consider a "grave breach" to be an act "...committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health." Therefore, though the Bush administration tried to get around the legal protections of prisoner of war status by calling the detainees "enemy combatants", the administration was still subject to judicial oversight. If the administration committed a "grave breach" of the Geneva Conventions, they could be held liable.

To address this legal dilemma, on September 29, 2006 Congress approved the Military Commissions Act of 2006, a bill that would suspend habeas corpus for any alien determined to be an unlawful enemy combatant engaged in hostilities or having supported hostilities against the U.S., by a vote of 65-34. President Bush signed the Military Commissions act into law on October 17, 2006. This legislation stripped the right of habeas corpus from the detainees. It also took away judicial jurisdiction.

"Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice or judge shall have jurisdiction to hear or consider a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." Section 1005(e)(1), 119 Stat. 2742.

On February 20, 2007, the U.S. Court of Appeals for the District of Columbia Circuit upheld this provision of the Military Commissions Act in a 2-1 decision in the case Boumediene v. Bush. The Supreme Court let the Circuit Court's decision stand by refusing to hear the appeal.

There is a Catch-22 attached to the Military Commissions Act. Under it, the law restricts habeas corpus appeals for only those aliens detained as enemy combatants or awaiting such determination. However, after such a determination is made, it is subject to appeal in U.S. Court, including a review of whether the evidence warranted the detention. If the status is upheld, then their imprisonment is lawful. If not, then the government can change the prisoner's status to something else and there would be no restriction on habeas corpus. There is, however, no legal time limit that would force the government to provide a Combatant Status Review Tribunal (CSRT) hearing. Prisoners are legally prohibited from petitioning any court for any reason before a CSRT hearing takes place.

The rules guiding a military commission are like Alice through the Looking Glass. They are a mirror-image of the guiding principle that you are innocent until proven guilty. It's a kangaroo court:

  • The accused are not allowed access to all the evidence against them. The presiding officers are authorized to consider secret evidence the accused have no opportunity to refute.
  • It may be possible for the commission to consider evidence that was extracted through coercive interrogation techniques.
  • The Appointing Officer in overall charge of the commissions is sitting in on them. He is authorized to shut down any commission, without warning and without explanation.
  • The proceedings may be closed at the discretion of the Presiding Officer so that the commission may discuss secret information.
  • The accused are not permitted a free choice of attorneys as they can only use military lawyers or those civilian attorneys eligible for secret security clearance.

And for a final irony, because the accused are charged as enemy combatants, former Secretary of Defense Donald Rumsfeld stated that an acquittal on all charges by the commission is no guarantee of release.

By labeling detainees of the "War on Terror" enemy combatants, the Bush administration did an end run around the Constitution and the Geneva Conventions. You are guilty until proven innocent, and even if you do prove your innocence, you have no guarantee of freedom. The state can hold you indefinitely, without charge, without legal recourse, and without hope.

You may say at this point, well, that's them, the aliens, the non-citizens. Didn't Hamdi v. Rumsfeld protect our right of habeas corpus?

On January 17, 2007, Attorney General Alberto Gonzales asserted in Senate testimoney that while habeas corpus is "one of our most cherished rights," the United States Constitution does not expressly guarantee the habeas corpus right to U.S. citizens or residents.

Therefore, the lack of rights enshrined in the Military Commissions Act could be extended to U.S. citizens and upheld if left unchecked.

How Bush's Definitions of Habeas Corpus and Enemy Combatant Combine to Destroy Our Rights

To expand on this title, I must delve into history.

In common law, habeas corpus is the name of the legal action or writ. (A "writ" is a formal written order issued by a legal body with jurisdiction. The legal body is generally a court. Warrants and subpoenas are types of writs but there are many others.) A habeas corpus writ is the means by which detainees can seek relief from unlawful imprisonment. It is an important instrument for safeguarding individual freedom against arbitrary state action. The "Great Writ" as it is known, is a court order addressed to a prison official (or other custodian) ordering that the prisoner be brought in front of the court so that the court can determine whether that person is serving a lawful sentence or should be released from custody. The prisoner or someone on his behalf can petition the court or an individual judge for a writ of habeas corpus.

The right to petition for the writ of habeas corpus has long been celebrated as the most efficient safeguard of the liberty of the subject.

Our system of law came out of English common law. Writs with similar effect as those of modern-day habeas corpus had been issued as early as Henry II in the 12th century. Blackstone, the esteemed jurist and writer on the law, explained the basis of the writ, saying, "The King is at all times entitled to have an account why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted."

The writ was codified by the Habeas Corpus Act of 1679, which established that a writ issued by a Superior Court in the name of the Sovereign commanded that the addressee (a lower court, a sheriff, or private person) to produce the prisoner before the Royal Courts of Law. This petition could be made by the prisoner or a third party on his behalf, and could be made regardless of whether the courts were in session by presenting the writ to a judge.

In the United States, the U.S. Consitution specifically includes the English common law procedure in the Suspension Clause, in Article One, Section 9. It states, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Habeas corpus proceedings are typically to determine whether a court, which imposed sentence, had jurisdiction and authority to do so, or whether the defendant's sentence expired.

Under U.S.C. Sec. 2251, the Congress granted all federal courts jurisdiction to issue writs of habeas corpus to release prisoners held by any government entity within the country from custody in the following cases:

  • In custody by the authority of the United States or commited to trial before some court, or;
  • In custody for an act done or omitted in pursuance of an Act or Congress, or an order, process, judgment, or decree of a court or judge of the U.S., or;
  • In custody in violation of the Constitution or laws or treaties of the U.S., or;
  • Being a citizen of a foreign state and committing an infraction of the law which is allowed under any alleged right, title, authority, privilege, protection or exemption of any foreign state, the validity of which depend on the law of nations; or
  • It is necessary to bring the person into court to testify or for trial.

In the 1950s and 1960s, decisions by the Warren Court greatly expanded the use and scope of the federal writ. However, the Antiterrorism and Effective Death Penalty Act of 1996 limited the use of the federal writ by imposing a one-year statute of limitations and having the federal judiciary defer to decisions previously made in the states.

Lincoln suspended habeas corpus during the Civil War in response to riots, local militia actions and the threat that the border state of Maryland would secede from the Union, leaving the nation's capital, Washington, D.C., surrounded by hostile territory. His action was challenged and overturned by the U.S. Circuit Court in Maryland, Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md., 1861).

In 1862 southern belligerents were sentenced to hang by a military court. Their execution was not set until May 1865 so they were able to argue their case after the Civil War ended. In Ex Parte Milligan 71 U.S. 2(1866), the Supreme Court decided suspension of the writ was unconstitional because the President was not empowered to try and convict citizens before military tribunals. The trial of citizens by military tribunals is allowed only if the civil courts are closed. This is the key Supreme Court decision that dealt with wartime civil liberties and martial law.

Now you may be asking yourself, this is a nice legal history lesson, habeas corpus sounds like a great idea to safeguard our liberties, but what does this have to do with enemy combatants? And what is an enemy combatant? Isn't it a label made up by the Bush administration?

An enemy combatant has historically referred to members of the armed forces of a state with which another state is at war. A 1942 Supreme Court ruling held that unlawful combatants (which is not the same as "enemy combatant") are subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts that render their belligerency unlawful. An enemy combatant, who, without uniform, comes secretly into our borders for the purpose of waging war by destruction of life or property is an example of soldiers who are not entitled to the status of prisoner of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

A prisoner of war (POW) is a combatant who is imprisoned by an enemy power during or immediately after an armed conflict. POWs are protected by Article 4 of the Third Geneva Convention. It applies from the moment a prisoner is captured until he is released. One of the main provisions of the Convention makes it illegal to torture prisoners and states that a prisoner can only be required to give his name, date of birth, rank and serial number.

As defined by the United Nations Convention Against Torture, torture is defined as:

"any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a
third person information or a confession, punishing him for an act he or a third
person has committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in
an official capacity."

In the wake of the September 11, 2001 attacks, the United States Congress passed a resolution, known as the Authorization for Use of Military Force, on September 18, 2001. By doing so, Congress invoked the War Powers Act of 1973. This Act limits the power of the President of the United States to wage war without the approval of Congress. Thereupon the Congress authorized the use of military force with its approval.

Using this authorization granted to him by Congress, on November 13, 2001, President Bush issued a President Military Order, "Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism." The order:

  • Specifies that those individuals who were to be tried would be tried before military comissions. (On September 28 and September 29, 2006, the Congress passed the Military Commissions Act of 2006, a bill that allows the President to designate certain people with the status of enemy combatant, thus making them subject to military commissions, where they have fewer civil rights than in regular trials.

If someone under this Order was detained as an enemy combatant, it was asserted that that person could be held indefinitely without charges being filed against him, without a court hearing and without entitlement to legal consultation. This directly contradicts the doctrine of habeas corpus. But in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court reaffirmed the right of U.S. citizens to seek writs of habeas corpus even when declared enemy combatants.

Regarding the status of non-citizens, Congress passed the Department of Defense Appropriations Act of 2006, which stated in Section 1005(e), "Procedures for Status Review of Detainees Outside the United States":

  • Except as provided in Section 1005 of the Detainee Treatment Act of 2005, no court, justice or judge shall have jurisdiction to hear or consider application for a writ of habeas corpus filed by or on behalf of an alient detained by the Department of Defense at Guantanamo Bay, Cuba.
  • The jurisdiction of the U.S. Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination...was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals..., and to the extent that the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and the laws of the United States."

The rest of my closing argument is in Part II, the next posting.