|
|
|
* Who were the Israelis living next to Mohammed Atta? * What was in that Moving Van on the New Jersey shore? * Was the Mossad Tracking the 9/11 Hijackers in the US? * How did two hijackers end up on the Watch List weeks before 9/11?
|
home / subscribe / donate / tower / books / archives / search / links / feedback / events / faq
Exclusive to CounterPunch Newsletter Subscribers! WHAT DID ISRAEL KNOW IN ADVANCE OF THE SEPTEMBER 11 ATTACKS? * Those Celebrating "Movers" and Art Student Spies
* Who were the Israelis living next to Mohammed Atta?
* What was in that Moving Van on the New Jersey shore?
* Was the Mossad Tracking the 9/11 Hijackers in the US?
* How did two hijackers end up on the Watch List weeks before 9/11?At last, the answers. Read Christopher Ketcham's exclusive expose in CounterPunch special double-issue February newsletter. Plus, Cockburn and St. Clair on how this story was suppressed and ultimately found its home in CounterPunch. Get your copy today by subscribing online or calling 1-800-840-3683 Remember contributions to CounterPunch are tax-deductible. Click here to make a donation. If you find our site useful please: Subscribe Now
Get CounterPunch By Email for Only $35 a Year Landau at UC Santa Cruz; Linebaugh in LA; Cockburn in San Francisco
|
Today's Stories February 28, 2007 Peter Linebaugh February 27, 2007 Tariq Ali Tom Barry Uri Avnery Antonia Juhasz / Raed Jarrar Jeff Nygaard Hugh O'Shaughnessy Mitchell Kaidy Carl Finamore Anne McElroy
Dachel Ramzy Baroud Andrew Rouse Website of the Day
February 26, 2007 Franklin Lamb Bill Quigley Greg Moses Col. Dan Smith Ralph Nader Paul Buchheit Jeff Leys Dave Zirin Mike Whitney Michael Dickinson Website of the Day
February 24 / 25, 2007 Jeffrey St.
Clair R. T. Naylor Gary Leupp Saul Landau Ron Jacobs Jeffrey Blankfort Chris Sands Gary Freeman Larry Portis P. Sainath Lee Sustar Kevin Wehr Ken Couesbouc Soffiyah Elijah Kathlyn Stone Dave Lindorff Jason Kunin Kevin Zeese Remi Kanazi Missy Beattie Poets' Basement Website of the Weekend
February 23, 2007 Franklin Spinney Jonathan Cook Patrick Cockburn Kathy Kelly Chris Dols Evelyn Pringle Stephen Pearcy Dan Brook Yifat Susskind Website of
the Day
February 22, 2007 Robert Fantina Tariq Ali Michael Shank John Ross Christopher Brauchli Cindy Litman Niranjan Ramakrishnan Kevin Zeese Aseem Shrivastava Reza Fiyouzat Illinois Students Against the
War Website of
the Day
February 21, 2007 Maass / St.
Clair Sharon Smith Greg Moses Margaret Kimberly Ralph Nader Nicola Nasser Mike Whitney Tao Ruspoli Byeong Jeongpil Corporate Crime
Reporter Josh Mahan Website of
the Day
February 20, 2007 Sgt. Martin
Smith Werther Corporate Crime Reporter Carl G. Estabrook China Hand Joshua Frank Megan Boler John Feffer Daryll E. Ray Alan Gregory Website of the Day
February 19, 2007 Paul Craig
Roberts Gary Leupp Ron Jacobs Michael F.
Brown Robert Jensen Roger Burbach Monica Benderman Sonja Karkar John Walsh Talli Nauman Website of the Day
Feburary 17 / 18, 2007 Alexander Cockburn Tao Ruspoli Gary Leupp Jeffrey St.
Clair Roger Morris Uri Avnery James Brooks Sen. Russell
Feingold Linn Washington, Jr. Michele Brand Fred Gardner Mitchel Cohen Mike Ferner David Swanson P. Sainath Mike Stark Missy Beattie Jonathan Franklin Website of the Weekend
Marc Levy Andrew Cockburn Glen Ford Greg Moses Ron Jacobs John W. Farley James Marc Leas Tim Rinne Albert Wan Website of
the Day
Patrick Cockburn Saul Landau Stephen Lendman Evelyn Pringle Michael Simmons Kevin Zeese Dave Lindorff Pete Shanks Peter Rost Lenni Brenner
/ Gilad Atzmon Website of the Day
February 14, 2007 Tao Ruspoli Dick J. Reavis Margaret Kimberly Christopher Brauchli Paul Craig
Roberts John Ross Michael F.
Brown Dave Lindorff J.L. Chestunut,
Jr. Don Fitz Michael Donnelly Dr. Susan Block Website of
the Day
February 13, 2007 Uri Avnery Patrick Cockburn Ralph Nader Marjorie Cohn Col. Dan Smith Col. Douglas
MacGreagor Thomas Power Nicola Nasser David Swanson Columbia Coalition
Against the War Website of the Day
February 12, 2007 Patrick Cockburn Paul Craig
Roberts John Walsh Dr. John Carroll,
MD Greg Moses Nicole Colson Dave Lindorff Ray McGovern Doug Giebel David Swanson Website of the Day
February
10 /11, 2007 Alexander Cockburn Gabriel Kolko Patrick Cockburn Jeffrey St.
Clair Kevin Alexander Gray M. Shahid Alam Greg Moses Paul Craig
Roberts George Ciccariello-Maher Kevin Zeese Turner / Kim George Duke Walter Brasch Shepherd Bliss Missy Beattie Peter Harley Pat Wolff Poets' Basement Website of the Day
Conn Hallinan Gary Leupp Lee Sustar Nikolas Kozloff Newton Garver Yitzhak Laor Dave Lindorff David Swanson Website of the Day
February 8, 2007 John V. Walsh Marjorie Cohn Trish Schuh Ron Jacobs Laura Carlsen Ramzy Baroud Brenda Norrell Bryan Farrell Judith Scherr Website of
the Day
February 7, 2007 Daniel Wolff Tao Ruspoli Tony Swindell Sharon Smith Ken Couesbouc Jeff Cohen Col. Dan Smith Tom Kerr Joshua Frank Adam Elkus Stephen Fleischman Website of
the Day
February 6, 2007 Diana Johnstone Gregory Wilpert Norman Solomon Dave Lindorff William Blum Mike Ferner CP News Service Evelyn Pringle Christopher Brauchli Alan Cabal Website of the Day
Dave Zirin Uri Avnery Ron Jacobs Paul Craig Roberts Newton Garver Bruce Anderson Saul Landau Ralph Nader James T. Phillips Mike Whitney Kenneth Rexroth Website of the Day
Alexander Cockburn Tao Ruspoli Jeffrey St.
Clair Patrick Cockburn P. Sainath Sen. Russell Feingold Diane Christian Brian Cloughley Diana Barahona Timothy J. Freeman Conn Hallinan John Ross Greg Moses Missy Beattie Joshua Frank Evelyn Pringle Stephen Fleischman Muhammad Idrees Ahmad Poets' Basement Website of the Day
Chris Kutalik R. Gibson /
E. W. Ross Pam Martens John Feffer Daryll E. Ray Ronald Bruce
St. John Mitchel Cohen Website of
the Day
Diane Farsetta Marjorie Cohn Mark Scaramella Ranni Amiri Christopher Ketcham Winston Warfield Corporate Crime Reporter Thomas P. Healy Website of the Dau
January 31, 2007 Patrick Cockburn Jean Bricmont Tao Ruspoli James T. Phillips William Johnson Tim Wilkinson Evelyn Pringle Joshua Frank Ramzy Baroud Mickey Z. Website of the Day
Subscribe Online
|
February 28, 2007 The Military Commissions Act, Gitmo Detainees and Habeas CorpusWhy the Boumediene Case Was Wrongly DecidedBy MARJORIE COHN Last week, in Boumediene v. Bush, two judges on a three-judge panel of the D.C. Circuit Court of Appeals upheld the provision of the Military Commissions Act of 2006 that strips the rights of all Guantanamo detainees to have their habeas corpus petitions heard by U.S. federal courts. If that decision is left to stand, the men and boys detained at Guantanamo can be held there for the rest of their lives without ever having a federal judge determine the legality of their detention. In my opinion, this appellate decision will likely be overturned by the Supreme Court next term. A little background: In November 2001, President Bush established Military Commissions to try non-citizens accused of war crimes. In June 2004, the Supreme Court decided Rasul v. Bush, which upheld the right of those detained at Guantánamo to have their petitions for habeas corpus heard by U.S. courts, under the federal habeas statute. The ink was barely dry on Rasul when Bush created the Combatant Status Review Tribunals, ostensibly to comply with the Rasul ruling. But, as I will explain, setting up these tribunals was really an end-run around Rasul. They were established to determine whether a detainee is an unlawful enemy combatant. They are not criminal courts, like the military commissions. On December 31, 2005, Congress passed the Detainee Treatment Act, which included the famous McCain "anti-torture" amendment. But it also stripped habeas corpus rights from Guantánamo detainees who had not already filed habeas petitions before December 31, 2005. Some 200 detainees had pending petitions. At the end of last term, the Supreme Court struck down Bush's military commissions in Hamdan v. Rumsfeld because they did not comply with due process guarantees in the Uniform Code of Military Justice and the Geneva Conventions. Then, in October of last year, in another end run, this time around Hamdan, Bush rammed the Military Commissions Act of 2006 through a Congress terrified of appearing soft on terror in the upcoming midterm elections. The Act does many things, but it notably strips statutory habeas corpus rights from all Guantánamo detainees, even those whose petitions were pending on December 31, 2005. The two-judge majority in Boumediene upheld the Military Commissions Act's stripping of statutory habeas jurisdiction that the Supreme Court had recognized in Rasul. (Congress had passed the original habeas statute, and amended it in the Military Commissions Act). The Boumediene decision found the Act's elimination of habeas to be constitutional. Art. I of the Constitution contains the Suspension Clause, which says that Congress can suspend the right of habeas corpus only in times of rebellion or invasion when the public safety may require it. As the dissenter in Boumediene pointed out, Congress has only suspended habeas corpus four times before, and made findings of rebellion or invasion in each case. We are not now in a state of invasion or rebellion, and Congress did not make such a finding. The two-judge majority in Boumediene said: (1) in the absence of a statutory habeas right (which Congress had eliminated in the Military Commissions Act), the Constitution only protects the right of habeas corpus that was recognized at common law in 1789; (2) the law in 1789 did not provide the right of habeas corpus to aliens held by the government outside of the sovereign's territory; and (3) Guantánamo is outside U.S territory for constitutional purposes, even though the U.S. has complete control over it. This reasoning is erroneous for three reasons: First, the Supreme Court held in INS v. St. Cyr that the Constitution protects the writ as it existed in 1789 "at the absolute minimum." The Supreme Court in Rasul cited St. Cyr. Second, although the Boumediene majority relies on the treaty that says Cuba, not the U.S., has sovereignty over Guantánamo, the Supreme Court rejected that argument in Rasul, when it said: "By the express terms of its agreements with Cuba, the United States exercises 'complete jurisdiction and control' over the Guantánamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses. . . Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts' authority under §2241." Third, although the Rasul Court was analyzing the pre-Military Commissions Act habeas statute, it also cited Johnson v. Eisentrager, which construed the constitutional right of habeas corpus. The Supreme Court in Eisentrager denied habeas jurisdiction to German citizens who had been captured by U.S. forces in China, and then tried and convicted of war crimes by an American military commission in Nanking. The Eisentrager court cited six factors to determine whether an alien is entitled to constitutional habeas jurisdiction in U.S. courts. These factors were cited in Rasul, which said:
The Rasul court said:
Congress can suspend habeas corpus if there is an adequate substitute for it. In Boumediene, the Bush administration asked the Court of Appeals to review the Combatant Status Review Tribunals. But the court declined, saying it had an inadequate record before it. The Combatant Status Review Tribunals do not provide a meaningful opportunity to challenge detention. The prisoner is not entitled to an attorney, only a "personal representative," and anything the detainee tells his personal representative can be used against him. After reviewing the cases of 393 detainees, a Seton Hall legal team found that in 96 percent of the cases, the government had not produced any witnesses or presented any documentary evidence to the detainee before the hearing. Detainees were allowed to see only summaries of the classified evidence offered against them, and that evidence was always presumed to be reliable and valid. Requests by detainees for witnesses were rarely granted. In addition, the personal representatives said nothing in 14 percent of the hearings and made no substantive comments 30 percent of the time. Some personal representatives even advocated for the government's position. In three cases, the detainee was found to be "no longer an enemy combatant," but the military continued to convene tribunals until they were found to be enemy combatants. These detainees were never told of the favorable ruling and there was no indication they were informed or participated in the second or third hearings. The Combatant Status Review Tribunals are not an adequate substitute for habeas corpus. The suspension of habeas corpus will certainly have profound effects on non-citizen detainees. Consider the case of Abu Bakker Qassim, an Uighur from China who was held at Guantánamo for four years. He wrote in the New York Times: "I was locked up and mistreated for being in the wrong place at the wrong time during America's war in Afghanistan. Like hundreds of Guantánamo detainees, I was never a terrorist or a soldier. I was never even on a battlefield. Pakistani bounty hunters sold me and 17 other Uighurs to the United States military like animals for $5,000 a head. The Americans made a terrible mistake." How did Qassim obtain his release from Guantánamo? "It was only the country's centuries-old commitment to allowing habeas corpus challenges that put that mistake right-or began to. In May, on the eve of a court hearing in my case, the military relented, and I was sent to Albania along with four other Uighurs," Qassim said. He added:
Rasul v. Bush was a 6-3 decision. Justices Stevens, Souter, Ginsburg, Breyer, O'Connor and Kennedy voted with the majority. The dissenters were Justices Scalia, Thomas and Rehnquist. I predict the Supreme Court will reverse the Court of Appeals decision in Boumediene, probably in a 5-4 vote with Chief Justice Roberts and Justice Alito voting with the dissent. I doubt whether the Court will decide that Bush has succeeded in placing the detainees beyond the reach of our federal courts by sending them to Guantánamo. It will likely decide that the Combatant Status Review Tribunals do not provide an adequate substitute for constitutional habeas corpus. Marjorie Cohn is a professor at Thomas Jefferson School of Law, president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists. Her new book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, will be published in July. This article originally appeared on the Jurist.
|
CounterPunch Books The Gang's All Here: Judy Miller, Bob Woodward, Jeffrey Goldberg, Rupert Murdoch, Bill O'Reilly...End Times Leaves No Reputation Unstained!  Buy End Times Now! CounterPunch Books! Saul Landau's Bush and Botox World with a Foreword by Gore Vidal  Click Here to Order!  Michael Neumann's Devastating Rebuttal of Alan Dershowitz Grand Theft Pentagon: Tales of Greed and Profiteering in the War on Terror by Jeffrey St. Clair           The Occupation by Patrick Cockburn           Bruce Springsteen On Tour By Dave Marsh                  |
