Sunday, October 15, 2006

Can't We Hold On To Our Freedom?

"The man who trades freedom for security does not deserve nor will he ever receive either. " attributed to Benjamin Franklin

On October 12, 2006, the Institute for International Law & Politics at Georgetown University sponsored a panel discussion on the US Military Commissions Act of 2006: Constitutional and International Legal Issues. The panel consisted of Philip Sundel, Esq., Deputy Legal Advisor, International Committee on the Red Cross; former Defense Counsel, Office of Military Commissions, U.S. Department of Defense; David Luban, Frederick J. Haas Professor of Law and Philosophy, Georgetown University Law Center, Carlos Manuel VÃizquez, Professor of Law, Georgetown University Law Center and James Oldham, St. Thomas More Professor of Law and Legal History, Georgetown University Law Center.

The following are notes that I prepared from the event.

This event offered an analysis of the recently passed (not yet signed) bill in Congress establishing military commissions to try "Alien Unlawful Enemy Combatants" (AUEC) which as the first speaker, Philip Sundel, explained, is a new category created by the US and not found anywhere in the internationally recognized Laws of War, or even under US law.

Sundel outlined the dangers of the new act and its impact on combatant/civilian determinations. For example, under this act, a farmer in a country in which the US is engaged in any war including the "war on terror" may be subject to detention if he so much as sells his produce to anyone deemed by the US to be an AUEC. In fact, the act even suggests that lawyers of an AUEC could themselves be determined to be AUEC for offering "moral support or assistance".

Sundel also explained that this new act redefines the 1997 War Crimes Act of the US by delineating what constitutes torture but lowering the bar for others acts which were previously considered illegal as cruel, inhuman and degrading treatment.

This led to the presentation by the second speaker, David Luban, who went into detail as to what the Act allows and disallows with respect to the treatment of detainees and the use of "tortured or water-boarded" information in court. As explained, the new Act does not allow information received through torture to be used in court. On the other hand, it does not outlaw torture either. It just says that this kind of information can not be used in Court.

The Act also allows information that has been coerced while offering the Government a national security privilege. This privilege basically means that the Government does not have to produce any sources, information or responses in court if the provision of such would be considered to endanger national security. Effectively, that means that if information being presented in court had been received through any means, this would not have to be divulged in court and thus is a way for the government to circumvent any limitations to its actions.

The third speaker, Carlos Vaizquez, offered analysis as to the possible constitutional crisis that could result from any challenges to this new Act. The Act states that it satisfied the Geneva Conventions, which the US Supreme Court reaffirmed as the law of the land in the Hamdan case and that it applied to terrorist detainees regardless of their designation by the US as AUECs. However, if the Act is challenged in courts on the basis that elements of it are in fact in contradiction to the Geneva Conventions, this would force the Court to determine the efficacy of the legislative interpretations of the Geneva conventions as stipulated in the new Act. The speaker argued that while it is usual for Courts to accord deference to executive and legislative interpretation of treaty, the final interpretation rests with the court, and in this case, the Court may be forced to show no such deference, thus a potential constitutional crisis.

The final speaker, James Oldham, explained how the new Act suspends the writ of habeas corpus from any non-US citizen tried under the Military Commissions. He outlined the history of habeas corpus and its central role in Anglo-jurisprudence and explained that it has only been suspended four times in US history. Lack of habeas corpus basically means that anyone designated an AUEC has no right or recourse to question or challenge that designation. The speaker noted that as far back as the 18th century with the forced capture and enlistment of men into the army such abrogation has been considered completely illegal.

This event was extremely interesting and extremely disturbing. In fact, on my way over to the event, I heard on the radio that the Navy officer, Swift, who had led the team of lawyers representing the Hamdan defense in the Supreme Court case this summer had been forced to retire that day from the Navy because he had been passed over for promotion. Under the Navy's rule of "Up or Out", he had to retire.

I believe everyone left the auditorium with a very heavy feeling.

This event highlights an issue that concerns anyone with even a remote interest/stake in rule of law, due process, democracy, integrity, and security. Such debate should be ocurring in every town hall, school room and civic space.

What we are giving up is what this country was founded on, and that is a worse fate than any enemy could inflict upon us.

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3 Comments:

Blogger Renegade Eye said...

Good post.

If you are captured, you're guilty. That is the logic of the law.

Not knowing for sure who is a terrorist, and who not, is reason for maintaining the Geneva Conventions.

The complete breakdown in international law, can only lead to more barbarism.

I'm linking to your blog.

Read politiques USA's comments on my fascism post. It caused my brain to explode.

3:43 AM  
Anonymous Anonymous said...

That was about time Renegade "khouya" :)
The subject is deeper than that, I can't expose it like that and it cannot be black and white. There is a part of egyptian culture for example that you cannot reach if you did not read the "sacred Koran" and other things such as the meaning of punishment. I blame it on the Bible and the western culture too, but there are other responsible agents too in the world of "tolerance". Personally I think it was out of line to invade a country in the name of "freedom" when the US of A is going to build its own jail within a decade.

Allah Akbar! La Allah Ella Allah.

1:57 AM  
Anonymous Anonymous said...

Allah Akbar! La Allah Ella Allah
It is not radical, it belongs to muslim culture but most of Americans are ignorant about culture since they are so selfish with their democracy in the middle-east

11:12 PM  

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