The 2006 Military Commissions Act authorized torture and sweeping unconstitutional powers to detain, interrogate, and prosecute alleged suspects and collaborators (including US citizens), hold them (without evidence) indefinitely in military prisons, and deny them habeas and other constitutional protections.
Section 1031 of the FY 2010 Defense Authorization Act contained the 2009 Military Commissions Act (MCA), listing changes that include discarding the phrase "unlawful enemy combatant" for "unprivileged enemy belligerent." Language changed but not intent or lawlessness. Obama embraces the same Bush agenda, including keeping Guantanamo open after promising to close it, and allowing torture there and abroad.
MCA grants sweeping police state powers, including that "no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause for action whatsoever....relating to the prosecution, trial, or judgment of a military commission (including) challenges to the lawfulness of (its) procedures...."
MCA scraped habeas protection (dating back to the Magna Carta in 1215) for domestic and foreign state enemies, citizens and non-citizens alike, and says "Any person is punishable... who....aids, abets, counsels, commands, or procures," and in so doing helps a foreign enemy, provide "material support" to alleged terrorist groups, engages in spying, or commits other offenses previously handled in civil courts. No evidence is needed. Those charged are guilty by accusation.
Other key provisions include:
-- legalizing torture against anyone, letting the president decide what procedures can be used on his own authority;
-- denying detainees international law protection, letting the executive interpret or ignore it;
-- letting the president convene "military commissions" at his discretion to try anyone he designates an "unprivileged enemy belligerent," detaining them indefinitely in secret;
--denying speedy trials or any at all;
-- letting torture coerced confessions be used as evidence in trial proceedings, despite US and international law prohibiting cruel and inhuman treatment at all times, under all conditions, with no allowed exceptions; also, the US Supreme Court's February 1936 Brown v. Mississippi ruling stated:
"The rack and torture chamber may not substitute for the witness stand," and an earlier November 1926 Fisher v. State decision called coerced confessions "the chief iniquity, the crowning infamy (and) the curse of all countries" using them.
-- letting hearsay and secret evidence be used; and
-- denying due process, destroying human dignity, mocking the rule of law, and establishing the principle of kangaroo court justice for anyone the executive targets with or without evidence.
In other words, the rule of law is null and void. Whatever the president says goes. No one any longer is safe. America is a police state, making everyone potentially vulnerable.
Stepped Up Military Commission Prosecutions Planned
On January 19, New York Times writer Charlie Savage headlined, "US Prepares to Lift Ban on Guantanamo Cases," saying:
"The Obama administration (will) increase the use of military commissions to prosecute Guantanamo detainees....Defense Secretary Robert M. Gates is expected to soon lift an order blocking the initiation of new cases....(It will) clear the way for tribunal officials, for the first time under the Obama administration, to initiate new charges against detainees" no matter how lawless the process or lack of evidence. Military commissions are convened to convict, not exonerate, denying every trial victim justice.
Last May, Obama authorized 13 prosecutions when his January 20 Executive Order (EO) halted initiation of new ones.
Within weeks, so-called "high-value detainees" will face trial, including Abd al-Rahim al-Nashiri, the alleged mastermind of the 2000 USS Cole bombing, charged with "organizing and directing" it. After capture in 2002, he was brutally tortured. The Bush administration admitted he was waterboarded, faced mock executions, and threatened with a power drill, among other abuses, to extract confessions to the Cole attack, other incidents, and that bin Laden had access to nuclear weapons.
In 2003, two of his alleged co-conspirators were indicted in federal court. Al-Nashiri's lawyer, Lt. Cmdr. Stephen Reyes, said he's "being prosecuted at the commissions because of the torture issue," preventing a civilian trial. However, other torture victims got them, including Aafia Siddiqui, Jose Padilla, John Walker Lindh, Zacarias Moussaoui, and Ahmed Khalfan Ghailani.
In alleged terrorism cases, civilian courts usually are as unjust as military commissions. Exceptions, however, occur, Ghailani for one.
An alleged Al Qaeda member, he was charged for involvement in the 1998 attacks on US embassies in East Africa, placed on the FBI's Most Wanted Terrorists list, captured in 2004, sent to Guantanamo, then tried in US District Court for the Southern District of New York in June 2009, the first former Guantanamo detainee tried in a civilian court.
On November 17, 2010, he was convicted on one count of conspiracy, but acquitted on 284 others, including multiple murder charges. On January 20, New York Times writer Benjamin Weiser headlined, "Judge Suggests Evidence in Terror Case Supports Conviction," saying:
Judge Lewis A. Kaplan supported Ghailani's conviction on one conspiracy count to destroy government buildings and property even though prosecutors seek life in prison. Minimally he'll get 20 years. On January 25, he'll be sentenced. Three others allegedly involved with him got life terms at ADX Florence, CO, the sole federal supermax prison, called "The Alcatraz of the Rockies" or "A Clean Version of Hell," for prisoners deemed most dangerous.
If tried in a military commission, conviction on all major charges was assured as well as a death sentence without appeal because alleged murders were involved.
Other Military Commission Trials
Savage mentioned Ahmed al-Darbi, accused of a failed operation "to attack oil tankers in the Straits of Hormuz; and Obaydullah, an Afghan," accused, according to Reuters of:
"allege(dly concealing) mines and other explosives in the Khost area of Afghanistan from October 2001 to July 2002 and carr(ying) a notebook describing 'how to wire and detonate explosive devices in preparation for acts of terrorism.' "
Likely trials for 30 or more others will also be by military commissions, assuring convictions on all or most serious charges.
Moreover, an Executive Order (EO) authorizing indefinite detentions is imminent. In May 2009, Obama suggested it, saying detainees (including ones ordered released) "who cannot be prosecuted yet who pose a clear danger to the American people" will be held without statutory authority. Over 50 innocent ones are affected. They may never be released (despite semi-annual and annual reviews, parole-like hearings rigged to deny), yet subjected to torture, other abuses, and denial of all fundamental rights.
In response, Center for Constitutional Rights (CCR) Managing Attorney, Shayana Kadidal, said:
"Preventive detention goes against every principle our nation was founded on. We have courts and laws in place that we respect and rely on because we have been a nation of laws for hundreds of years; we should not simply discard them when they are inconvenient."
At the same time, CCR President Michael Ratner called military commissions "irredeemably flawed." In an earlier article, he described them as "kangaroo courts" no different than ones in police states. The combination of lawless arrests, torture, military commissions and indefinite detentions describe today's America accurately, especially for anyone, rightly or wrongly, accused of terrorism or conspiracy to commit it.
Last March, after reports about new military commission trials, the ACLU bought a full-page Sunday New York Times ad urging the Justice Department to try high-value" terror suspects in civil courts, calling commissions:
"a second class system of justice which should be shut down for good. The Constitution is not optional, and the rule of law must be restored."
The ad showed an Obama picture morphing into Bush, asking: "What will it be Mr. President? Change or more of the same." ACLU's executive director Anthony Romero said "it's critical that Americans know what is at stake here: nothing less than America's commitment to the Constitution and the rule of law."
Post-9/11, both were trashed. Bipartisan complicity in lawlessness followed. Most all Guantanamo and other offshore prison detainees are innocent. In January 2010, The New York Times said:
"in the eight years since the Bush administration first set up military commissions, only three Guantanamo detainees have been convicted, in part because of legal challenges to the tribunals. Two of the three received modest sentences and are now free," showing there was no basis for trial in the first place, and a year later the conviction number is still three.
Moreover, the many hundreds held offshore are wrongfully called terrorists. Yet they've been tortured, denied counsel and due process, contact with family members, and in some cases murdered, though innocent of any crime. Today's America institutionalized injustice, and not just offshore given the hundreds of political prisoners languishing domestically under gulag conditions.
Stephen Lendman lives in Chicago and can be reached at firstname.lastname@example.org. Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.