Sunday, October 29, 2006

Martial Law One Pen Stroke Closer

It seems my previous post spoke too late.... On Oct. 17, Bush, in a quiet, surreptitious move signed into law the fiscal 2007 appropriation bill which includes a measure giving him unilateral authority to declare martial law in any state or territory and use both federal and state troops/national guard. For the relevant section in the 486 page act (you can also find it here), see section 1076.

It reads:
(1) IN GENERAL.--Section 333 of title 10, United States Code, is amended to read as follows:`` 333. Major public emergencies; interference with State and Federal law
(1) The President may employ the armed forces, including the National Guard in Federal service, to--
``(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that--
``(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and
``(ii) such violence results in a condition described in paragraph (2); or
``(B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2). `
`(2) A condition described in this paragraph is a condition that--
``(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
H. R. 5122--323
``(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

As I have been writing lately, the Military Commissions Act, Patriot Act, NSA eavesdropping, and now the redefinition of the Insurrection Act all lead us toward one direction, loss of our civil liberties and the corruption of total power in the form of martial law.

Toward Freedom website has an interesting analysis. Here is an excerpt:

"In a stealth maneuver, President Bush has signed into law a provision which, according to Senator Patrick Leahy (D-Vermont), will actually encourage the President to declare federal martial law (1). It does so by revising the Insurrection Act, a set of laws that limits the President's ability to deploy troops within the United States. The Insurrection Act (10 U.S.C.331 -335) has historically, along with the Posse Comitatus Act (18 U.S.C.1385), helped to enforce strict prohibitions on military involvement in domestic law enforcement. With one cloaked swipe of his pen, Bush is seeking to undo those prohibitions.

Public Law 109-364, or the "John Warner Defense Authorization Act of 2007" (H.R.5122) (2), which was signed by the commander in chief on October 17th, 2006, in a private Oval Office ceremony, allows the President to declare a "public emergency" and station troops anywhere in America and take control of state-based National Guard units without the consent of the governor or local authorities, in order to "suppress public disorder."

President Bush seized this unprecedented power on the very same day that he signed the equally odious Military Commissions Act of 2006. In a sense, the two laws complement one another. One allows for torture and detention abroad, while the other seeks to enforce acquiescence at home, preparing to order the military onto the streets of America. Remember, the term for putting an area under military law enforcement control is precise; the term is "martial law."

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Friday, October 27, 2006

Martial Law and the Boiling Frog Syndrome

What does martial law and a frog have in common? Answer: Depends on what murky waters you are in...

The Bush administration has been slowly turning up the heat since 2001 and we stand to suffer the fate of the boiling frog who is so cold blooded he can't tell when the heat is on until it is too late...

The definition of martial law as it appears on Wikipedia is :
"Martial law is the system of rules that takes effect (usually after a formal declaration) when a military authority takes control of the normal administration of justice.

Martial law is instituted most often when it becomes necessary to favor the activity of military authorities and organizations, usually for urgent unforeseen needs, and when the normal institutions of justice either cannot function or could be deemed too slow or too weak for the new situation..."

Does it sound familiar? That is exactly the logic used by Bush to ram through our docile Congress the recent "Military Commissions Act" of 2006.

Our venerable Vice President was interviewed the other day by one of his cheerleaders, Scott Hennen. Here is how that scary interview went:

"Q I've heard from a lot of listeners -- that's what we do for a living, talk to good folks in the Heartland every day -- and I've talked to as many who want an increased military presence in Iraq as want us out, which seems to be the larger debate, at least coming from the left -- cut and run, get out of there. One fax said, when you talk to the Vice President, ask him when shock and awe is coming back to Iraq. Let's finish the job once and for all.

And terrorist interrogations and that debate is another example. And I've had people call and say, please, let the Vice President know that if it takes dunking a terrorist in water, we're all for it, if it saves American lives. Again, this debate seems a little silly given the threat we face, would you agree?

THE VICE PRESIDENT: I do agree. And I think the terrorist threat, for example, with respect to our ability to interrogate high value detainees like Khalid Sheikh Mohammed, that's been a very important tool that we've had to be able to secure the nation. Khalid Sheikh Mohammed provided us with enormously valuable information about how many there are, about how they plan, what their training processes are and so forth, we've learned a lot. We need to be able to continue that.

The Congress recently voted on this question of military commissions and our authority to continue the interrogation program. It passed both Houses, fortunately. The President signed it into law, but the fact is 177 Democrats in the House -- or excuse me, 162 Democrats in the House voted against it, and 32 out of 44 senators -- Democratic senators voted against it. We wouldn't have that authority today if they were in charge. That's a very important issue in this campaign.

Are we going to allow the executive branch to have the authority granted and authorized by the Congress to be able to continue to collect the intelligence we need to defend the nation.
Q Would you agree a dunk in water is a no-brainer if it can save lives?

THE VICE PRESIDENT: It's a no-brainer for me, but for a while there, I was criticized as being the Vice President "for torture." We don't torture. That's not what we're involved in. We live up to our obligations in international treaties that we're party to and so forth. But the fact is, you can have a fairly robust interrogation program without torture, and we need to be able to do that.

And thanks to the leadership of the President now, and the action of the Congress, we have that authority, and we are able to continue to program

Words have meaning and they do break bones... What we see here is a page torn out of the book of past and contemporary leaders elsewhere that we point fingers too and brand as "evil". I hope we jump out of the boiling water before our freedom is spent...

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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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Wednesday, October 11, 2006

Human Death Toll of the Travesty in Iraq

In case anyone wants to still argue that Iraq is better off ...... a new study estimates that the number of Iraqi's killed as a direct result of the US-led invasion is over 600,000, or 2.5% of the population of Iraq! That dwarfs all other estimates including that of Iraq Body Count who estimates an upper limit of less than 50,000. This report was also published in the medical journal, The Lancet. The study suggests that while 100,000 died after the first year of the invasion, the occupation since 2004 has seen an additional 5-fold increase.

A group of social scientists at Johns Hopkins University led by Les Roberts have completed a new poll of households in Iraq, which updates a previous study they undertook over a year ago. This study is financed by MIT and was done in collaboration with a group of Iraqi experts and doctors who have conducted numerous polls for various US-based polling outfits. The effort is financed by MIT.

Needless to say, the Bush administration and other war-hawks claim that the study grossly exaggerates the "collateral damage" resulting from coalition forces action, as well as insurgent violence. They are crying foul claiming that the release of the study now is nothing but a political ploy. Well, at least, people may stop talking about the Foley fiasco - if that is their silver lining. But, seriously, one must wonder why they might find 50,000 a more acceptable a number. In fact, is it even acceptable to discredit bad news just because it can be cast as having been divulged for political points? Does that mean that the news should be of less concern? Is it better that we don't know it?

On a CNN interview, John Zogby (of Zogby International), a leading US-based pollster, said today that, in his view, the methodology used by the study group was sound. He also endorsed the Iraqi experts who were part of the study effort saying that his company has relied on them, as well, in the past.

The bottom line is that no serious person can accept the low death figures being touted by the Bush administration unless they are either asleep or delusional. With 100 bodies showing up in Baghdad alone on a daily basis, anyone can do the math.

It is time for the US and the world to take a deep hard look both in our hearts and minds. What is happening in Iraq is not only sad, it is criminal.

By the way, BBC has an excellent Bush opinion poll tracker covering the past 6 years (US media could really learn a couple things from their Brit allies).

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Friday, October 06, 2006

A Tribute to Sadat - 25 Years Later, Where Are We

It was 25 years ago that a great man was killed. Not only were we deprived of the promise he held for peace in the Middle East, but no one else since has been able to take on his mantle.

Many also pay tribute to Sadat today by taking a look at how far away we are from the promise of the possible had we followed the trajectory he offered us. Those who callously killed him know the mistake they made as quoted in today's International Herald Tribune:

"If I could turn back time, we wouldn't have killed Sadat. We would have appreciated his value," said Nageh Ibrahim, a leader of the Egyptian Gama'a al-Islamiyya (Islamic Group), .."

Very few individuals in history make a real difference. Machiavelli spoke of the importance of glory and reputation, but it was Aristotle who noted the true virtue of practical wisdom. Sadat attained glory, but his real gift was his practical choices and wise leadership... not only for Egypt, but for the region and for the world.

As we face the possibility of an unrestrained hegemon in today's world, what lessons can we learn from the example of Sadat? What threats do we face and how can we successfully protect against them? Is it by fueling more anger, balancing, and division?

One of Sadat's most poignant lessons is not only courage, but also the importance of finding other ways of settling disputes. He showed us that we should not delude ourselves with self-righteous thinking. Where there is dissension, our start point should be to believe that all humans are rational beings acting and reacting to one another. This is not to say that there is no moral barometer adjudicating amongst us; it is to say that seeing from a single-angle means you can not be that judge. If we approach "the other" from the perspective that our actions induce reactions, and we believe in our agency, we can change the course of the ensuing chain reaction.

Sadat showed us that if you change, the equation changes - shifting the trajectory into a new direction. That is his legacy and that is the lesson we have failed to learn.

Here are a few words I wrote 25 years ago - the day we lost Sadat>

To Sadat

Behind the myth, where time begins,
I enjoy the mystery of life.
Life. A simple word.

A soothing touch of realism revealed
The true beauty of life.
The world, created and perfected
To be
Mild. Fresh. Serene.
Perfect harmony.

A world where
The trail of tears
The springs of hope and
A rocky haven of new thought
Never end.

Imagine silencing the spirit of life.

October 6, 1981


Thursday, October 05, 2006

On Conflation and its Dis-content

The bottom line is that words, and the concepts they embody, have meaning. To use a word loosely is to impoverish and even obfuscate its original content. Conflating fascism and religious zealotry into "Islamofascism" cheapens the significance and impact of both. It also robs those who suffer under either from a recognition of the true nature of their suffering.

I have written much on this and hope that we can start to generate a new discussion around the dangers of conflation. First, we conflated actors (Saddam Hussein and Al Qaeda). We imagined a scenario of the one giving weapons of mass destruction to the other, reified it, and acted upon our constructed reality! The result is that we are entrenched in a war based on false pretexts and lies. This has consequences - people are dying and hatred has new fuel.

Now we are witnessing the conflation of two different, yet separately serious, deviations. If we do not realize the conflation, we will fail to address the problem, yet again!

This topic requires more ...... and it shall come.

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