Guantánamo military tribunals proceed despite evidence of torture

Tom Carter

At Guantánamo Bay, the Obama administration continues to prosecute five alleged September 11 conspirators before a military commission over objections from defense attorneys regarding torture and challenges to the legitimacy of the proceedings.

The five prisoners are Khalid Sheik Mohammed, the reputed “mastermind” of the September 11, 2001 attacks; his nephew Ramzi Binalshibh, accused of playing a major role in Al Qaeda operations in Germany; and three men alleged to be lower level Al Qaeda figures: Mustafa Ahmed Hawsawi, Ammar al Baluchi and Walid bin Attash.

All five men have been held for years without trial or charge and have been subjected to brutal and illegal forms of torture at Guantánamo Bay and at secret CIA “black sites.” Khalid Sheik Mohammed was subjected to waterboarding (near-drowning by asphyxiation) 183 times in a single month in 2003.

All five are charged with murder, hijacking and terrorism, among other charges, and the Obama administration is seeking the death penalty.

At an arraignment that lasted more than thirteen hours earlier this month, lawyers appointed for the five men directly challenged the legitimacy of the military commissions and repeatedly sought to direct attention to the fact that the five men had been tortured. (See: Guantánamo military commission arraigns 9/11 defendants.) The proceedings frequently ground to a halt as the tribunal sought to defend its legitimacy and to prevent a discussion of torture.

At one point during the arraignment, bin Attash took off his shirt in an attempt to show the tribunal the scars that resulted from torture. “No, no, no,” said Colonel James Pohl, the presiding judge. “You will put your shirt on.”

Padilla torture case comes before US Supreme Court

Tom Carter

“It is hard to conceive of a more profound constitutional violation than the torture of a US citizen on US soil,” wrote lawyers for Jose Padilla in a petition filed Monday with the US Supreme Court. A lawsuit brought by Padilla, who was illegally “disappeared,” imprisoned and tortured by the US government for four years, was thrown out by lower courts on the grounds that the courts have no authority to subject the wartime actions of the executive branch to “judicial scrutiny.”

Padilla’s treatment constituted a test case for the incommunicado detention and torture of US citizens by the military without any judicial process. The Padilla case, as much as any other to date, illustrates the disintegration of democracy in the US and the erection of the legal scaffolding of a police state.

According to the precedent set by the Padilla case, federal authorities and the military may unilaterally abduct, imprison and torture a US citizen, in clear violation of the Bill of Rights, without anyone ever being held accountable. If this can be done to one individual, there is nothing in principle preventing the government from doing it to hundreds or thousands or millions of individuals.

On June 2, 2002, Jose Padilla, a US citizen, was declared by then-president George W. Bush to be an “enemy combatant.” On this basis, i.e., the sole say-so of the president, US military personnel seized Padilla from a Chicago jail, where he was incarcerated pursuant to a “material witness” warrant, and transported him to the Consolidated Naval Brig in Charleston, South Carolina, a military prison.

“It would be almost two years before anyone beyond the Brig’s doors heard from Mr. Padilla again,” the petition states. For nearly four years, Padilla was subjected to continuous physical and psychological torture, from which he suffered permanent brain damage.

Obama administration expands illegal surveillance of Americans

Tom Carter

NSA headquarters in Fort Meade, Maryland (Wikipedia)

These unprecedented attacks on democratic rights, in which the entire political establishment and both Democrats and Republicans are participating, must be understood as preemptive preparations by the political establishment to meet the coming social upheavals with police state measures.

Last Thursday, Attorney General Eric Holder enacted guidelines that further expand the US government’s asserted powers to collect and store private information, without a warrant, concerning individuals who are not suspected of any crime.

The guidelines constitute a further step by the Obama administration to expand and entrench unconstitutional spying operations on the American people by all levels of government that were spearheaded by the Bush administration.

In the period since September 11, 2001, the US government has secretly compiled vast databases containing private information on the American public. These databases include telephone conversations, the contents of personal emails, visited web sites, Google searches, text messages, credit card transactions, mobile phone GPS location data, travel itineraries, Facebook activity, medical records, traffic tickets, surveillance camera footage and online purchases. The vast quantities of information that are being collected and stored by the US government far exceed what was gathered by the most infamous police states of the last century.

Holder’s guidelines permit intelligence officials to secretly use these databases to profile and track Americans who have no connection to terrorism—alleged or otherwise—for up to five years. The previous guidelines, issued in 2008 by Bush administration Attorney General Michael Mukasey, were understood to limit the retention of such information to 180 days.

According to an article Friday in the New York Times, the new guidelines are expected to result in increased collection and “data mining” of information on ordinary Americans by the National Counterterrorism Center (NCTC).

The Electronic Privacy Information Center issued a brief statement denouncing the guidelines: “The change represents a dramatic expansion of government surveillance and appears to violate the Privacy Act of 1974, which limits data exchanges across federal agencies and establishes legal rights for US citizens.”

Military tribunals and assassination

Tom Carter

In a speech Monday at Northwestern University Law School in Chicago, Attorney General Eric Holder painted a chilling picture of the future of the United States as envisioned by the Obama administration, in which military tribunals and extrajudicial assassinations are permanent, codified features of the American judicial landscape.

Holder’s speech included a sweeping assertion of quasi-dictatorial presidential powers, including the power of the president to secretly sign death warrants for any person, including US citizens, without any form of judicial review. Holder also defended the power of the president to order the abduction and imprisonment of any person, anywhere in the world, and to try that person before a military tribunal.

The speech was a response to pressure for the administration to provide a legal rationale for the killing last fall of three US citizens by American drone missile strikes in Yemen. On September 30 of last year, the Obama administration assassinated US citizen and alleged Al Qaeda leader Anwar al-Awlaki in Yemen after placing him on a secret “kill list.” (See: “The legal implications of the al-Awlaki assassination.”) Other US citizens killed by US missile strikes include Samir Khan and Abdulrahman Al-Awlaki, the 16-year-old son of Anwar Al-Awlaki.

The political and media establishment responded to Holder’s speech with complete indifference. Articles on the speech were relegated to the inside pages of the New York Times, Wall Street Journal and Washington Post, and none of the network evening news programs commented on it. No politician or public figure, Republican or Democrat, emerged to denounce the speech, and no reporters asked about it Tuesday at Obama’s first press conference of the year.

This response confirms the absence of any commitment to core democratic rights within the American ruling class.

The legal implications of the al-Awlaki assassination

Tom Carter

On September 30, 2011, the Obama administration, through its military and intelligence apparatus, assassinated US citizen Anwar al-Awlaki in Yemen.

The purpose of this essay is to analyze the legal implications of the assertion by the Obama administration of the power to assassinate US citizens anywhere in the world.

From the standpoint of US and international law as it has developed historically, the killing of al-Awlaki is entirely illegal. Extrajudicial executions violate nearly every fundamental democratic legal protection.

At the request of the Obama administration, a lawsuit filed on al-Awlaki’s behalf was thrown out of US courts in September of last year on the basis of authoritarian precepts far exceeding any precedent in the country’s history. The decision in that case, left undisturbed, clears the way for the extrajudicial liquidation of opponents of the US government and, ultimately, for presidential dictatorship.

US Supreme Court gives green light to warrant-less searches of homes

Tom Carter

This ruling enhances the arbitrary powers of the police and makes the security and privacy of the home even more dependent on the subjective whims of individual police officers.

A decision Monday by the US Supreme Court represents a further major step in abolishing the basic civil liberties protections in the Bill of Rights and enhancing the arbitrary powers of the police. The decision permits police to conduct searches of private homes without a warrant under a mundane pretext.

The issue in the case, Kentucky v. King, decided 8-1, was whether the police should have obtained a search warrant before they kicked in the door of Hollis Deshaun King’s apartment, conducted a search, and found marijuana. King was sentenced to 11 years in prison.

The Fourth Amendment to the US Constitution, enacted in 1791 in the aftermath of the American Revolution, guarantees to the people “[t]he right … to be secure in their houses… against unreasonable searches and seizures.” The Fourth Amendment also requires that police seek the authorization of a neutral judge, in the form of a warrant, before undertaking a search or seizure. To obtain the warrant, the police are required to demonstrate “probable cause.”

The Fourth Amendment, together with the Third Amendment, which prohibits the government from quartering soldiers in private homes, arose out of a profound hatred and resentment towards arbitrary government intrusions into the home, as well as an understanding that protection of the privacy of the home is necessary to political freedom.

The US Supreme Court Justice Robert H. Jackson wrote in 1948 that the Fourth Amendment requirement that the government obtain a warrant to conduct a search is among the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.”

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