Thursday, July 8, 2010

Reflections on the 4th of July by Roger Fitch

Roger Fitch Esq • July 8, 2010

The Fourth of July

Obama administration gets its first Guantánamo conviction … Osama’s cook and bottle washer pleads guilty to “material support” ... David Hicks also pleaded guilty to this concocted “war crime” ... Our Man in Washington reports

imageOn July 4, we were reminded of the US Declaration of Independence, which speaks of an oppressive British monarch who “affected to render the Military independent of and superior to the Civil Power”, imposing “a jurisdiction foreign to our constitution and unacknowledged by our laws; giving his assent to acts of pretended legislation”; and “transporting us beyond Seas to be tried for pretended offences”.

In the 2006 Hamdan decision, the Supreme Court reiterated that “conspiracy” was not a valid crime under the Geneva Conventions or the laws of war, whatever the Bush administration might claim.

Congress proceeded to make it a crime anyway, and it was used (unsuccessfully) against Hamdan himself.

In 2009, top Obama administration lawyers from the departments of Justice and Defence admitted to Congress that “material support for terrorism”, invented by Congress in the Military Commissions Act 2006, was not a valid war crime and asked that it be dropped from the MCA 2009.

It wasn’t.

Neither inconvenient fact, however, prevented the US accepting (on July 7) a guilty plea from Osama bin Ladin’s cook and bookkeeper, Ibrahim Al Qosi, for material support and conspiracy.

Both “crimes” are currently before the Court of Military Commissions Review in the cases of Hamdan and Al-Bahlul (bin Ladin’s driver, and publicity man, respectively), and it is entirely possible they will be struck out on appeal.

Al Qosi becomes the second person, after David Hicks, to plead guilty to a non-existent, retrospectively applied, military commission offence.

His Sudanese and American lawyers may feel satisfied that they have brought some sort of resolution to their client’s nightmare, but every plea, and every conviction, is a knife in the US Constitution, the Geneva Conventions and the rule of law.

A military commission staged by Col Gaddafi would have had as much validity.

See previous Fitch on Material support


Montgomery said...

Exactly how does the U.S. Constitution apply to non-citizens (detainees)? In WW II president Roosevelt asked the Supreme Court what to do with captured German spies on U.S. soil. The answer was: "We're at war, Mr. President; let the military try them as per the Geneva Conventions." And that's what happened. No writ of habeas corpus for Law of Land Warfare (Geneva Conventions)breakers. During the Civil War, president Obama's hero, Abraham Lincoln, suspended habeas and ordered military commissions for civilians. Lincoln was much more of a Commander-in-Chief than Obama will ever be, unfortunately, even keeping on his "colorful" generals, Grant and Sherman (look it up) because he knew they could win the war. Not so with Obama and arguably the best special forces mind ever, Gen. Stanley McChrystal. To learn about the real stroy of detention and medical duty at Gitmo, read Montgomery J. Granger's "Saving Grace at Guantanamo Bay: A Memoir of a Citizen Warrior."

Anonymous said...

Words are not living in dictionary. Words are living in mind.............................................................