Rule of Law Triumphs in Canada

While the struggle between insecurity and rule of law continues to wage in the US, Canada has put its foot down and declared the winner - rule of law, hence democracy. As noted by Tony Arend in two recent posts, what the Canadian Supreme Court decided is indeed laudable. By a vote of 9 - 0, with both liberals and conservatives on the Court, the decision indicates that the issue rises above political partisanship and speaks to the basic tenets of democratic society.

Canada's Chief Justice Beverly McLachlin says in the ruling: “The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process.”

This decision should also be viewed in comparison to the US stance on the issue. The Military Commission Act of 2006 blatantly retracts basic rights, such as habeas corpus, from non-US citizens (see previous posts). Furthermore, recent court rulings underscore the slippery slope the justice system is sliding down. Last week a federal court in Washington DC upheld that Act and struck down petitions representing the aspirations of dozens of Guantanamo detainees to a fair day in court.

Here are excerpts from some articles on the decision:

New York Times - Canadian Court Limits Detention in Terror Cases
OTTAWA, Feb. 23 — Canada’s highest court on Friday unanimously struck down a law that allows the Canadian government to detain foreign-born terrorism suspects indefinitely using secret evidence and without charges while their deportations are being reviewed.

The detention measure, the security certificate system, has been described by government lawyers as an important tool for combating international terrorism and maintaining Canada’s domestic security. Six men are now under threat of deportation without an open hearing under the certificates.
....
“We’ve started to see the rollback,” said Alex Neve, the secretary general of Amnesty International Canada. “Today the Supreme Court of Canada has said, ‘Make sure you put human rights at the center of how you prevent terrorism.’ ”

Top court overturns federal security certificates
CTV.ca News Staff Updated: Fri. Feb. 23 2007 10:38 PM ET
The Supreme Court of Canada (SCC) unanimously ruled today that federal security certificates, used to detain suspected terrorists, are unconstitutional. The 9-0 judgment found that the system violated the Charter of Rights.

The certificates allowed government officials to use secret court hearings, indefinite prison terms and summary deportations when dealing with non-citizens accused of having terrorist ties.
...
That process is a violation of fundamental justice, wrote Chief Justice Beverley McLachlin.
....
The judgment is not saying that the detentions are wrong, but that the accused must have access to the evidence against them, said Thompson.

Flying While Muslim

If you Google the newly ubiquitous phrase "Flying While Muslim", you will get a wide swath of curious links all sharing one thing in common - their phobia. Some guide apprehensive and fearful Americans, who happen to be Muslim, offering advice on how to get through airport procedures without being pulled aside or even arrested for the crime of "Flying While Muslim".

Other links take you to sites filled with various degrees of Muslim bashing and outright racism. Such misanthropes have latched on to Muslims as the object of their hate-filled phobias. Still others cry out in well-founded indignation against the racist trajectory which is once again rearing its ugly head in this country. I even found a few movie and other artistic projects focusing on the sorry phenomenon which has become a constructed reality in the US since the disaster of 9/11. Overall, my query yielded 10,000 hits.

As we get ready on Thursday to be thankful for the many blessings of our lives including this great nation, many Muslims in the US are continuously reminded that being American for them carries another burden. Many came to this country to escape discrimination and lack of civil liberties in their land of birth, only to face it in their adopted land. The irony of their predicament is especially palpable. However, most American Muslims were born here and for them this is their homeland; they know nor want any other.

Yet, does America want them? Unfortunately, no Mayflower can carry those unwanted, discriminated against to newly discovered continents. This is it..... a reality we should all accept... or better yet, embrace, for our collective benefit.

We may not be a melting pot, but can we at least be a healthy tossed salad (hold the nuts)?

Unfortunately, for 6 American Muslim imams (clerics), Thanksgiving may be the last sentiment they feel today. It would appear that US Airways succumbed to the racist phobias of one of its passengers and pulled these 6 men off a flight from Minneapolis to Phoenix yesterday. To add insult to injury, the 6 men were then handcuffed and arrested by the police and detained for hours. Their crime: Flying while Muslim. They were later released and, if you can believe it, today when they tried to catch another flight to Phoenix, US Airways refused to sell them tickets!

I really don't understand what is going on here. Has racism cloaked in stubborn idiocy triumphed in America? Has rule of law and the bill of rights become faith-contingent? I ask these ridiculous questions hoping that, in fact, they are ridiculous.

Yet, what is really disturbing about this hideous event is the behavior of the police. On what basis were these men denied their civil liberties, humiliated, arrested and detained? On the basis of the fears of one ignorant woman on the flight who heard the men praying and decided that was an expression of "anti-American sentiment"? Is that how we treat our citizens?

On the other hand, is such behavior surprising in view of our government's blow-by-blow abrogation of basic civil liberties starting with suspending habeas corpus and trial by jury, unauthorized wire-tapping, and detainment without charges?

Well, we should be thankful because according to the Washington Post:
"The Department of Homeland Security's Office for Civil Rights and Civil Liberties said it has opened an investigation.

US Airways Group Inc. issued a statement saying that it is interviewing crew members and ground workers about what happened."

I am sure that will go far towards winning the hearts and minds abroad .... and healing at home.

So, as we sit down to our turkey tomorrow, let's think twice before passing on the salad.

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:
SEC. 1076. USE OF THE ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.
(a) USE OF THE ARMED FORCES AUTHORIZED.--
(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
``(a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.--
(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."

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...

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.

US National Intelligence Estimate 2006 - Short on Intelligence

As though to gain some political mileage after it had already been leaked, Bush announced that he would declassify and allow the release of some of the conclusions of the US National Intelligence Estimate 2006. More on this later. For now read it and think to yourself... Is there anything here that a casual desktop review of some media reports wouldn't offer? Where is the intelligence..... What I find staggering is how short on intelligence the National Intelligence Estimate is! Either the DNI has resorted only to open source intelligence gathering, or our "clandestine" intelligence gathering and analysis capability offers nothing not already in the public domain. Not only is there not a single "surprise" in the released conclusions, but it also shows a very shallow premise upon which to build policy initiatives. Is this what our government uses as one of its basis for engaging with the world?