Greater Lansing Network Against War and Injustice: October 2006

How Many More Have to Die for a Lie?

In 1991, when America's armed forces were deployed to liberate Kuwait from occupation by Iraqi forces, Dick Cheney, then Secretary of Defense, stopped the military's advance into Iraq when it reached the city of Basra. He did so because he was advised that continuing the advance and attempting to remove Saddam Hussein from power would result in an unwinnable conflict against an opposing force capable of wearing down an opponent through a war of attrition.

Today, we now know that the advice Mr. Cheney received in 1991 was accurate. We are involved in a quagmire against an opponent that makes effective use of the Fabian strategy. As a result, as of October 29, 2006, the state of Michigan has sacrificed 100 of its citizens. We were told that Iraq possessed weapons of mass destruction, but more than three years and seven months after Iraq was invaded, no such weapons have been found. We will be gathering in front of the state capitol building in Lansing, Michigan at noon on Friday, November 3, 2006 to ask our leaders one simple question: How many more have to die for a lie? As we read the names of Michigan's war dead, we stand in solidarity with and support for the families of those who have been killed and wounded, of those who are currently serving, and those who are preparing to deploy.

Posted at Tuesday, October 31, 2006
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Friday, October 20, 2006
The American Usage and History of Habeas Corpus

In common law countries, habeas corpus, Latin for "you [should] have the body", is the name of a legal instrument or writ by means of which detainees can seek release from unlawful imprisonment. A writ of habeas corpus is a court order addressed to a prison official (or other custodian) ordering that a detainee be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he or she should be released from custody. The writ of habeas corpus in common law countries is an important instrument for the safeguarding of individual freedom against arbitrary state action.

The recorded history of the usage of habeas corpus dates back to 1305 during the reign of King Edward I, although other writs were issued with the same effect as early as the reign of Henry II in the 12th century. The framers of the United States Constitution considered it important enough to include it in Article One, section nine:

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

In the United States, the writ of habeas corpus is a civil (as opposed to criminal) proceeding in which the court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings investigate whether a criminal trial was conducted fairly and constitutionally after the criminal appellate process has been exhausted. Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the Bureau of Immigration and Naturalization pursuant to a deportation proceeding.

Habeas corpus was suspended on April 27, 1861, during the Civil War by President Lincoln in Maryland and parts of midwestern states, including southern Indiana. He did so in response to riots, local militia actions, and the threat that the border slave state of Maryland would secede from the Union, leaving Washington DC surrounded by hostile territory. He was also motivated by requests from generals to set up military courts to rein in "Copperheads" or Peace Democrats, and those in the Union who supported the Confederate cause. His action was challenged in the US Circuit Court for the District of Maryland, then presided over by Supreme Court Chief Justice Roger Taney, who ruled in the case of Ex Parte Merryman, "That the president cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it," and, "That a military officer has no right to arrest and detain a person not subject to the rules and articles of war... except in aid of the judicial authority, and subject to its control." Lincoln simply ignored Taney's order. In the Confederacy, Jefferson Davis also suspended habeas corpus and imposed martial law. This was in part to maintain order and spur industrial growth in the South to compensate for the economic loss inflicted by its secession.

In 1864, Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. The Supreme Court decided that the suspension of the writ did not empower the President to try and convict civilians before military tribunals. The trial of civilians by military tribunals is allowed only if civilian courts are closed. This case, Ex Parte Milligan, was one of the key Supreme Court cases of the Civil War that dealt with wartime civil liberties and martial law.

In the early 1870s, President Grant suspended habeas corpus in nine counties in South Carolina, as part of federal civil rights action against the Ku Klux Klan under the 1870 Force Act and the 1871 Ku Klux Klan Act.

The November 13, 2001 Presidential Military Order gave the President of the United States the power to detain anyone suspected of connection to terrorists or terrorism as enemy combatants. As such, that person could be held indefinitely, without charges being filed against him or her, without a court hearing, and without entitlement to a legal consultant.

Many legal and constitutional scholars contended that these provisions were in direct opposition to habeas corpus, and the Bill of Rights. The case of Hamdi v. Rumsfeld re-confirmed the right of US citizens to habeas corpus even when declared an enemy combatant. The issue of aliens has been more complicated. While some argue that habeas corpus does not properly apply to noncitizens, US courts have also ruled that many rights under the Bill of Rights and the Fourteenth Amendment apply to "all persons", not just US citizens. In the case of Hamdan v. Rumsfeld, argued before the Supreme Court in March of this year, Salim Ahmed Hamdan petitioned for a writ of habeas corpus, challenging the lawfulness of Secretary of Defense Donald Rumsfeld's plan to try him for alleged war crimes before a military commission convened under special orders issued by the President of the United States, rather than a court-martial convened under the Uniform Code of Military Justice. On June 29 of this year, in a five to three ruling the Supreme Court rejected Congress's attempts to strip the court of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay, although Congress had previously passed the Detainee Treatment Act, which took effect on December 30, 2005:

"Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba."

Section 1005 of the Detainee Treatment Act states:

"The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination ... was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence), and to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States."

On September 29 of this year, Congress approved the Military Commissions Act of 2006, a bill which would suspend habeas corpus for any alien (noncitizen) determined to be an "unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States." President Bush signed the Military Commissions Act of 2006 into law on October 17.

With the Military Commissions Act's passage, the law altered the language from "alien detained... at Guantánamo Bay":

"Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

Under the Military Commissions Act, the law restricts habeas appeals for only those detained as enemy combatants, or awaiting such determination. Left unchanged is the provision that, after such determination is made, it is subject to appeal in US Court, including a review of whether the evidence warrants the determination. If the status is upheld, then their imprisonment is deemed lawful; if not, then the government can change the prisoner's status to something else, at which point the habeas restrictions no longer apply.

There is, however, no legal time limit which would force the government to provide a Combatant Status Review Tribunal hearing. Prisoners are legally prohibited from petitioning any court for any reason before a Combatant Status Review Tribunal hearing takes place. It has been pointed out that the government can thus detain any noncitizen for any length of time, without habeas or any other appeal, by delaying the Combatant Status Review Tribunal hearing indefinitely.

Posted at Friday, October 20, 2006
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Thursday, October 19, 2006
Long Awaited and Highly Disappointing Response

Two weeks after sending Senator Stabenow my personal letter of protest regarding the Military Commissions Act, I have finally received her response. Without picking her disappointing and inadaquate response apart piece by piece I will simply say that voting in favor of bad legislation which gives away basic human rights is in fact "ignoring the Hamdan decision." Supporting the erosion of our Constitution is not better than fighting against that erosion and the role of congressional and judicial oversight, now marginalized, will be very difficult to get back.

October 18, 2006

Mr. Erik Nelsestuen

Thank you . . .

... for contacting me about the Military Commissions Act of 2006. I understand your deeply held beliefs regarding this bill and your distrust of the Bush Administration which I share.

As you may know, the Supreme Court's Hamdan v. Rumsfeld decision found the President's military tribunals unconstitutional. This decision created a void with no judicial process in place for the detainees who our country has been holding indefinitely.

I understand the distrust of the Bush Administration which has frankly shown a flagrant disregard for the law. However, having no law in place would have given this administration continued justification to act without any accountability.

This proposal puts in place protections that do not exist today for detainees and is a better system than the one proposed by the President. I strongly opposed the President's attempts to undermine the Geneva Convention. This bill does not amend the Geneva Convention in any way. This proposal puts in place specific protections against torture, providing needed clarification on what constitutes war crimes and criminalizing specific interrogation techniques.

Could this bill be improved? Absolutely. I supported every Democratic amendment to tighten definitions and strengthen this legislation. Unfortunately, we lost them in close votes. I will continue to work with my colleagues to modify the law, and am hopeful that with changes in the new Congress, we will be successful in making these needed improvements.

There is no question that Congress will need to continue its oversight role of this Administration. While we may respectfully disagree about this bill, my vote was based on the sincere belief that ignoring the Hamdan decision and passing no legislation was not an option. If we had not passed this bill, our military would not have been able to move forward with trials against suspected terrorists now in U.S. custody.

Thanks for sharing your views with me on this legislation. As always, I welcome your input.

Sincerely,

Debbie Stabenow

United States Senator

Posted at Thursday, October 19, 2006
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Monday, October 16, 2006
Surprising Coverage by New York Times

The New York Times has had surprisingly good coverage of the Military Commissions Act of 2006. Below there are some links to two New York Times Editorial pieces about the bill. GLNAWI is actively planning actions in opposition of this piece of legislation. President Bush plans to sign the bill early this week, despite wide spread opposition to the bill, including many religious, civil liberty, and social justice groups. Please join with GLNAWI in support of the U.S. Constitution by opposing this legislation.

http://www.nytimes.com/2006/09/28/opinion/28thu1.html?ex=1160712000&en=d993034832192f22&ei=5070

http://www.nytimes.com/2006/10/15/opinion/15sun1.html?ex=1161576000&en=eaa1c184fde9c337&ei=5070&emc=eta1

Posted at Monday, October 16, 2006
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Thursday, October 12, 2006
Startling New Mortality Study on Iraq

A new study done on the mortality rates in Iraq is due to be published in the British medical journal, The Lancent. The study is based on a mortality survey aimed at capturing violence related deaths since the invasion of Iraq over three and a half years ago. 600,000 violent deaths is both startling and cause for outrage. How many more deaths will "stay the course" bring? How can the US not reevaluate the violence in Iraq?

http://web.mit.edu/cis/

"The School of Medicine at Al Mustansiriya University in Baghdad, Iraq, and The Bloomberg School of Public Health at Johns Hopkins University--in cooperation with MIT's Center for International Studies--have released a report on the under-examined question of civilian deaths in Iraq since the U.S. invasion in March 2003. Its central conclusion, based on a population-based survey conducted at some risk by a team of Iraqi and American public health researchers, is that approximately 600,000 people have died violently above the normal mortality rate. Including non-violent deaths that are nevertheless linked to the war, the total is estimated to be more than 650,000.

On October 12, 2006, the survey results will be published in the British medical journal, The Lancet.

The report on the survey findings, methods and implications, is available here. "The Human Cost of the War in Iraq: A Mortality Study, 2002-2006" explains the cluster survey method; discusses how so many fatalities are possible; looks at the overall status of health in Iraq; examines U.S. military casualties and deaths and their long-term consequences, and discusses policy implications of the study."

Posted at Thursday, October 12, 2006
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Wednesday, October 04, 2006
Military Commissions Act

Last week the Senate passed the Military Commissions Act. In the wake of its passage, what outraged me most were the democrats who voted in favor of the bill. In Michigan, Senator Debbie Stabenow voted in favor of the bill which prompted me to write the following letter. In addition to the letter to Stabenow I sent a letter of thanks to Senator Carl Levin for his efforts to amend the bill and his vote against this disasterous legislation. The Representative Mike Rogers, of Michigan’s 8^th District, received a letter similar to the one below, but his vote has always been to support torture and his responses tend to be little more than vague propaganda. I won’t be posting Rep. Rogers response but I am anxious to hear from Senator Stabenow and as the letter mentions, her response will be posted to this blog.

Senator Stabenow,

I am writing to express my outrage with your vote on the Military Commissions Act. In my understanding, the bill you voted in favor of does the following things:

* Grants unprecedented and unchecked authority to the Executive Branch to label as "unlawful enemy combatants" and detain an overly broad range of people, including U.S. citizens and legal permanent residents inside the United States

* Denies any independent judicial review of these detentions

* Seeks to eliminate accountability for past violations of the law

* Permits evidence obtained through coercion

* Permits secret evidence which defendants will never see

My question to you is as follows: Do you honestly believe that the status quo of Bush Administration condoned torture and removing the right of habeas corpus was necessary to "protect" the American people?

Habeas corpus was granted to the worst Nazis after World War II and by affording them due process (despite the horrific nature of their crimes), our civilization proved itself just. There is no justice in this bill. Without the right of habeas corpus, those who may be wrongly detained have no hope of proving their innocence. To assume that detention occurs without error discards any pretense of innocence until proven guilty, a bedrock of the US Constitution.

The US Supreme Court has also ruled opposite of your vote. The recent Hamdan vs. Rumsfeld defined the special military commissions outlined in this bill as illegal according to both military justice law and the Geneva Conventions. This Supreme Court ruling reaffirms the legal right of habeas corpus for enemy combatants.

Furthermore, intelligence gathered through torture is widely recognized as flawed and dangerously misleading. How is such a flawed and misleading source of intelligence “one of America's most potent tools in fighting the war on terror” as President Bush has recently claimed? Torture (or coercive interrogations as supporters of torture prefer) does not produce intelligence of value and should never be used as the foundation of the war on terror. Rather, it proves to radicalize its victims while what ever information being sought is confirmed. Not confirmed because it is true but simply because anything will be said to stop the pain. There is no protection for America in this bill, only continued injustice and radicalization.

I believe that your vote is purely political and challenge you to present your reasoning for voting in favor of this disastrous bill. I have voted for you in previous elections but now feel that you have taken my vote for granted. You have sold out your progressive supporters and folded under the pressure of Republican threats to brand Democrats as terrorist enablers. History will not remember the Republican cheap shots and debate stifling but it will remember this bill and your vote along with it. You have bet on the fact that historically Democratic voters will continue to vote for the lesser of two evils.

Previous to your support for the Military Commissions Act I was certain to vote for your candidacy. I now find myself as an undecided voter, a category which has been rare in my life. My vote, will depend on the response to my challenge. My challenge to you is to present your logical and moral reasoning for voting in favor of the Military Commissions Act. I would be particularly interested in any intention you may have in reforming the bill during a future term as a Senator.

The content of this letter will be posted to a public BLOG, where your response will also be posted. This is an opportunity to explain your vote and your plans for future action about this issue. I look forward to hearing from you.

Sincerely, an undecided voter,

Erik Nelsestuen

Posted at Wednesday, October 04, 2006
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