Paul Revere's Final Ride

 No silly. Not the one where he warned the British that the Americans were coming. The one where he warned Americans that the American Brownshirts were coming:

The interview concluded with Olbermann quipping: "I'll see you at Gitmo."

This is where we are, folks. America is dead. The grand experiment is over, for the moment. It's going to take a Democratic Congress and a Democratic president to rescind this law.

So, hunker down and vote and wait.

Oh, look! There's our neighbor, Paul Revere. He's riding through the neighborhood.

What's that he's shouting?

"The brown shirts are coming! The brown shirts are coming!"

Silly Paul. The brown shirts are already here.

Read more about October 17, 2006, The Reverse of July 4th, 1776 on the other side of the metaphysical jump.

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Guantánamo Hearings: A Military Bureaucratic Conundrum

"This is an issue of first impression for the military commissions, yet again," conceded the lead military prosecutor, addressing the military commission judge in the case of Noor Muhammed on Wednesday in a courtroom in Guantánamo Bay, Cuba.

Lt. Cmdr. Arthur Gaston of the U.S. Navy, the lead prosecutor, was arguing to Navy Capt. Moira Modzelewski, the judge, that it was up to her to decide if the detainee's former military defense counsel should continue to represent Noor, although the Army had assigned her to elsewhere. And really, he added, it was up to the Army, not the court, to make the final determination.

The military bureaucratic conundrum seemed to leave everyone in the courtroom - and in the observers' gallery, which was walled off by bullet-and-sound-proof glass -- scratching their heads. (Observers at this courtroom, which was built specially to try the 9/11 suspects, only get to hear the proceedings via an audio feed that transmits the sound after a several-minute time-delay.) Like many questions that arise in these military commission hearings, the answer to this one could not be found anywhere in the rules or the military commission precedent.

That's partly because the current military commissions, created by the Military Commissions Act of 2009 - have no rules. The military hasn't issued them yet. The now-outdated rules that governed the previous commission, created by a 2006 law, don't address this situation either. And there is almost no military commission precedent to speak of. After all, in the eight years since they were created, the military commissions have tried only three cases. Of those, only two detainees even put up a defense. Both have since been released from prison.

Throughout yesterday's hearing, if there was one thing that the prosecution, defense and judge could agree on, it was that there simply is no law to guide many of the situations that come up in the military commission cases of the Guantánamo detainees.

The lead civilian defense counsel, Howard Cabot, an experienced trial lawyer, kept citing precedent from the military court-martial cases and the rules of the Uniform Code of Military Justice, or UCMJ. But those are designed to govern cases involving U.S. servicemembers, not suspected terrorists. And except in the three cases already mentioned, suspected terrorists have always been charged and tried under federal criminal law and federal rules of criminal procedure, in civilian federal courts.

The lack of precedent and uncertainty about the constitutionality of the commissions themselves has made it virtually impossible to try these cases. It also leaves any future verdict vulnerable to challenge on appeal.

In Noor's case, as in many others, the government hasn't even established that the court has jurisdiction over him, because it has yet to prove he was a fighter for Al Qaeda or the Taliban. Even if it proves that he supported terrorists groups, Noor can later appeal on the ground that "conspiracy" and "material support" for terrorism aren't really war crimes, but instead are crimes in the federal criminal code that belong in civilian criminal court. And the government could be required to start his case all over again.

Setting aside the astonishing delay in the trial of Noor and the other Gitmo detainees, perhaps the best reason against trying them at Guantánamo Bay is that these trials are unlikely to lead to the sense of justice, finality and closure that Americans terrorized by the attacks of Sept. 11 want and deserve. More likely, as Noor's case illustrates, they'll lead to an endless round of drawn-out hearings and appeals, as lawyers fight over what the rules are or ought to be, each conceding, as they must, that there is no clear law to guide them.

That will only further delay justice - not only for the suspects indefinitely imprisoned at Gitmo, but for the victims of the acts of terrorism that they're accused of orchestrating.

Lindsey Graham's Third Strike?

 

Given Senator Lindsey Graham's military background, one would think he would push hard for the trial and conviction of all terrorists. After all, U.S. federal courts have successfully tried more than 195 terroristssince the terrorist attacks of September 11. But for the past five years, Graham has instead repeatedly obstructed the effort to try and convict the 9/11 detainees.

In 2005, the South Carolina Senator helped push through the Detainee Treatment Act, which tried to strip federal courts of jurisdiction over all Guantanamo detainees' legal challenges to their detention. In Hamdan v. Rumsfeld, the Supreme Court ruled that the law could only apply to future detainee claims, not those already filed. It also ruled that the Bush administration's military commissions were unconstitutional.

So Graham helped broker a deal with the White House to pass the Military Commissions Act of 2006, promising that would solve the detainee problem. That law tried once again to deny habeas rights retroactively, and created a new set of Congressionally-authorized military commissions to try suspected terrorists.

Back then, dozens of former military leaders, Judge Advocates General and civilian legal experts objected that the Military Commissions Act of 2006 was a bad idea. Among other things, it would violate Common Article 3 of the Geneva Conventions and the United States Constitution.

With Graham's urging, Congress passed the law anyway.

Since then, the military commissions have convicted exactly three terrorists - one of whom did not even put up a defense. The other two have already been set free.

In June 2008, in Boumediene v. Bush, the Supreme Court ruled that the Military Commissions Act of 2006 was unconstitutional for limiting detainees' access to judicial review; the Supreme Court made clear that Guantanamo detainees have the right to challenge their detention in regular civilian courts.

That sharp rebuke from the Supreme Court has not stopped Lindsey Graham from now attempting a third time to broker yet another deal to deny detainees the right to civilian court review, claiming once again that he can solve the government's Guantanamo detainee dilemma.

Given his track record, does Graham really have any credibility on this issue?

This time, Graham is trying to push through Congress a bill that would deny the government the funding necessary to try the 9/11 defendants in a civilian federal court, and require their trial by military commission.

"I believe it is inappropriate to give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen," said Senator Lindsey Graham. "It has never been done in the history of warfare and now is not the time to start."

Actually, foreigners have always been given the same constitutional rights as U.S. citizens in criminal proceedings. And military detainees have always had the right to challenge their detention in civilian courts.

Regardless of whether the law is constitutional, as a matter of national security former military leaders say that Graham's proposal is a very bad idea.

"It's sad and a mistake that we should politicize these decisions and get Congress involved in what is clearly the constitutional responsibility of the president," said Retired Admiral John Hutson at a recent press conference.

Retired General Harry Soyster called on President Obama to stand firm in "administering the great justice system of this country," adding that he should "not give into political pushes that would push us clearly in a wrong path with long-term consequences."

Retired Major General William Nash said pushing the 9/11 trials into military commissions would "give aid to our enemies" and "lessen our reputation with our allies."

Even General Colin Powell opposes the idea: "The suggestion that somehow a military commission is the way to go isn't born out by the history of the military commissions," Powell said recently on CBS's Face the Nation.

Yet Graham is now also making a far more sweeping attempt to undermine suspected terrorists' right to a civilian trial. Senator Graham is reportedly trying to broker a deal with the White House and his Senate colleagues to get them to pass a new law authorizing indefinite detention without trial of terror suspects on U.S. soil. In return, Graham claims, he will deliver Republican support for the closure of the Guantanamo Bay prison camp.

Graham doesn't seem to have much support for his proposal from either side of the aisle, with objections on both legal and practical grounds.

"There is a law already on indefinite detention," Senate Armed Services Chairman Carl Levin, (D-MI), told Congressional Quarterly. "It's called the Geneva Convention."

Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, said "I don't think there's any need for a new statute," adding that it "confuses the issue to suggest that we don't have that authority now."

That hasn't stopped Senator Graham from promising the White House once again something he appears wholly unable to deliver.

The question is whether anyone will fall for it this time around.

The "Military Commissions" Of Wounded Knee In The Present

I don't wear a "tin foil hat" or a war bonnet; I call myself a historical realist. To me for example, extraodinary rendition began when Christopher Columbus kidnapped ten Native Americans and took them back to Spain to Christianize them. What Ludford said on September 7th just felt like old news to me.
EU demands to know location of CIA prisons:
SOURCE"Bush exposes not only his own previous lies. He also exposes to ridicule those arrogant government leaders in Europe who dismissed as unfounded our fears about extraordinary rendition," Ludford said in a statement.

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Your life does depend on it

Today, things are different. Today, we awoke a nation perhaps forever changed, thanks to a president who considers destroying everything that once made this nation great a good thing. And thanks, also, to the apathy or, worse, the willing consent of millions of Americans. Today, therefore, things are different, because yesterday, in the midst of National Character Counts Week, the president tarnished our national character by signing into law one of the most immoral pieces of legislation in our nation's history. To the president, the Military Commissions Act represents, in his words, "one of the most important pieces of legislation in the war on terror", exemplifying a nation that "is patient and decent and fair". History, I'm afraid, won't be as kind a judge. Nor, with your help, will a motivated electorate, whose decision to check a reckless White House this November is the only thing standing between democracy and tyranny. When you cast a ballot this fall, vote as if your life depends on it. Because it does.

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Diaries

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