GITMO, THE AMERICAN GULAG - DEVALUES U$ JUSTICE

 

By

Joseph Chez

 

February 15, 2013

Consider if you will what the consequences would be for the nation and to the rest of the world, if US currency would only have the assigned monetary value, only within its borders and only have value for American citizens? Certainly, such scenario would be inconceivable at best, because, such policy would make the American monetary system unworkable in a global symbiosis. Better yet, this make-believe portrayal could only be considered as appropriate by foolish individuals having a deficit-understanding of the profound consequences such policy would have, domestically or internationally, right?  Yet, that is exactly what the Bush Administration implemented immediately after the 9-11 terrorists attack on US soil.  However, the policy devaluation scheme was not done with the US dollar – it was done with the judicial system. 

The American judicial system, although not perfect, was designed to strive to reach the highest ideals and standards of the rule of law. In theory, as originally envisioned, the American judicial system was to become a beacon to the world and guarantor of civil liberties to all its citizens, or anyone within its jurisdiction.  Therefore, just like the American dollar, if the American people expect its currency to have the full faith and credit of their government, at home or internationally, in-like circumstances, such premise must also apply to its judicial system. 

However, the question must be asked, why did the United States of America decided to house presumed culprits of 9-11 outside its borders and to this day, has kept them imprisoned at a concentration detention camp at Guantanamo Bay Naval Base – in Cuba?

 After 9-11, the national discussion turned - not on self-reflection, why it happened or what we as a nation did to deserve it?  Instead, President Bush, standing on the rubble of the twin towers, took to the bullhorn and promised - not that the perpetrators would be brought to justice, but that justice would come to them.  Semantics aside, it is clear that the Bush Administration desired affect was to punish the presumed perpetrators, but not render justice under a US court of law.

 In fact, at the height of the aftermath of 9-11, the collective anger focused on profiling the would-be culprits, namely Muslims – from anywhere. This is because US intelligence did not have a clue as to which group or country was the source of the malevolent act against the US.  Thus, it is noteworthy to remind ourselves that we “shocked and awed” the world on March 19, 2003 when the US attacked Iraq, a nation that had no connection in the 9-11 attack. And yet, the mastermind of 9-11, Osama Bin Laden, finally took credit for the attack in 2004.  But, never mind the small details; the US Government under the Bush Administration dredged the Middle East with a wide net and captured hundreds of suspected terrorists.  And just as the facts for justifying a war against Iraq were sketchy, so was the basis on which the US Government rounded off suspected terrorists.   In most cases, suspects were turned in by anonymous individuals who were paid a handsome dollar amount for deliverance of would-be terrorist.  In more regrettable cases, names of presumed terrorist were expunged from captured individuals, while under the extreme duress of torture. No need to mention rendition…!

The rule of law notwithstanding, the Bush Administration based its approach to the 9-11 pay-back by establishing The War on Terror: wanted, capture them and hang them. Never mind the legal system or international norms, when the country was in a hanging mood and was even receptive to eroding Constitutional protections for its own citizens.   Accordingly, the Bush administration came up with extra-judicial measures to simply avoid the reach of US law. Thus, in order to circumvent jurisdiction of US courts, the Bush Administration framed the argument that captured terrorists did not deserve due process under US law as that should only apply to US citizens. 

 Originally, captured 9-11 suspects were housed at various countries (CIA black sites) for reasons of enhanced interrogations – until, there was international condemnation which questioned the legality of such detention methods. In response the Bush Administration opened a detention camp at Guantanamo Bay Naval Base (GITMO) in Cuba, to house the 9-11 presumed guilty. Why Guantanamo? Simply, because the Bush Administration and the conservative wing of the country clamored that US law was meant for American citizens only.  However, they assumed right, that if detainees were to be brought to the mainland, US courts’ jurisdiction would unquestionably apply. There was also the fear that if tried under the full protection of the law, perhaps, the evidence for detention would be so sketchy – that they would be set free.

 Further framing the argument that 9-11 detainees were not privileged to be tried under US courts, the Bush Administration held that these individuals were simply not covered under the Geneva Convention rules of war because they were terrorists and not soldiers of any recognized country or government.  The Bush Administration thus labeled the detainees, “enemy combatants” in reference to being considered unlawful combatants.

At first, detainees at GITMO were imprisoned incommunicado, held without charge, tried or convicted.  That’s because the Bush Administration was not interested in providing due process.  Instead, the neo-con cadre at the White House asserted that the courts did not have jurisdiction over the detainees.  Moreover, the country was in no mood to recite Miranda Rights in a time of war.  Soon however, few brave progressives began to stick out their necks to defend human rights and the rule of law.  It was obvious to many liberals, that civil liberties were taking a hit under the Patriot Act, conveniently veiled as part of national security.  But, as court challenges reached the Supreme Court, in Rasul v. Bush, the U.S. Supreme Court held that indeed, US courts did have jurisdiction over 9-11 detainees.  Still, the Bush Administration agreed to provide a semblance of judicial process; however, it would not be under a civilian court of law or have the legal mechanisms necessary to successfully challenge their detention.  This gave way for the creation of “Combatant Status Review Tribunals, a sort of administrative hearings conducted under the Pentagon’s military judicial umbrella.  However, the “hubris” after 9-11 was so extreme, that Congress conceded to every assertion from the Bush Administration, so in 2005, legislation, the Detainee Treatment Act (DTA) was passed and it stripped US courts from any statutory jurisdiction over detainee legal challenges.  Further, it limited the appeals process, and allowed for the formation of a quasi-legal system under military commissions.  In essence, this allowed the Bush Administration to deny Guantanamo detainees the full protection of US law.

In 2006, when the US Supreme Court in Hamdan v. Rumsfeld attempted to re-impose jurisdiction over habeas corpus petitions, Congress once again put in place further restrictions for detainees by enacting the Military Commissions Act of 2006, thus amending its previous Detainee Act and giving the Bush Administration further latitude in the formation of military commissions.  The new legislation also limited detainees from having access to federal courts. In sum, the Bush Administration succeeded in minimizing the value or jurisdiction of American jurisprudence over anyone suspected being a terrorist, but more specifically, for those already under detention at GITMO.

It is noteworthy to mention that in 2008, the Supreme Court finally held in Boumedene v. Bush, that “alien enemy combatants” and Guantanamo detainees did have a constitutional right to a habeas petition from a federal court.  And yet, very few detainees at Guantanamo have been tried to this day – for fear that whether under a military commission or under the scrutiny of a civilian court, few would be found guilty.

As the American public became war-weary and hostile against government privacy intrusion, coupled with international skepticism of US moral direction, it was clear the nation needed change.  Consequently, Sen. Barack Obama became president in January 20, 2009 as he promised to restore the moral compass of the country, reset foreign policy, end the Iraq war, and close Guantanamo Bay detention camp, inter alia. 

Today, detainees are no longer mentioned by the label, “enemy combatant” and torture is not the official modus operandi.  However, the Guantanamo Bay detention camp remains open and continues to house yet-to-be-tried alleged terrorist.  In fact, much of the Bush Administration’s War on Terror infrastructure remains in place.  Some methodology or labeling may have changed but in reality, any meaningful change is de minimis.  Regrettably, the standards of minimizing due process for detainees are status quo ante (same as before).

Therefore, denying due process under US law for anyone simply because the person is a suspected terrorist, not a US citizen or is held in detention offshore – is simply irrational, but may also discredit our judicial system and profoundly devalue what makes the US the great democracy it purports to be.  And just like we guarantee the value of the US dollar, with the full faith and credit of the nation, so too, must we guarantee justice for all who may be under US jurisdiction, in the same breath and essence under the rule of law.

In closing, I submit to you that regardless if the Republican held House is perceived as obstructing the closing of GITMO, or blocking detainee trials in US courts, President Barack Obama can no longer defend the indefensible; he is the Commander-in-Chief and he can and must do the right thing; by closing the Guantanamo Bay detention camp and allow those held in the American gulag to be tried in a court of law.  We must not forget that injustice to one is injustice for all.  So Mr. President, your word is the value of your legacy, and how we judge others, is the value of the country.  

Last thing, the premise of my argument in no way supports what 9-11 culprits did, but instead, I want to highlight the concerns of many, that if we allow our Constitutional protections to be devalued – we may loose the unalienable rights which were constituted in the Declaration of Independence which underscores that all men are created equal.

March, 8, 2013
PS:  I originally published this article with the Daily Kos on March 1,2013. Previously however, I had contacted the White House to get information as to when President Obama was to close the detention camp at Guantanamo Bay - but my inquiry was dismissed.

When I posted this article with the Daily Kos and on twitter, the article was  sent to the White House.
This week, the nation became aware of Bin Laden's son-in-law being under US custody  and not placed at Guantanamo but brought to the US mainland to be tried in a US court of law.  This is CHANGE and justifiable.

Scoundrels vs. ObamaCare

Scoundrels Inc. vs. ObamaCare

March 26, 2012

Today marks a historic day in the life of these United States of America.  A land-mark case such as Dread Scot (1857) is before the U.S. Supreme Court. This time however, race is not the issue, although, there are underlings in the greater scope of the political contention, but a case of major proportions which questions federal jurisdiction over states rights and the power of the Federal government over individual rights. 

Twenty six dissident GOP-led states in a united front, filed for review before the United States Supreme Court in objection to President Barack Obama Administration’s “Patient Protection and Affordable Care Act” signed into law in March 2010, and today, the Court began hearing arguments.  The complainant opposition is a GOP-TeaParty and allied with BigBusinessUnited effort, in hopes of undermining the Democratic aim of providing affordable health care to all Americans.    

After a successful opposition by the Republicans in Congress to the #SinglePayer health Care legislation, as initially proposed by Democrats, efforts to bring affordable health care to the American people failed, thus resulting in a watered-downed health care law which is now being challenged before the U.S. Supreme Court.  Under the scurrilous name of “ObamaCare” as tagged by the Republican/Tea-Party opposition, the law called for penalizing those individual citizens who would opt out of not purchasing health care insurance. Thus, herein lays the trap laid by the Republican-led opposition; after Republicans realized they could not entirely prevent Democrats from passing a form of health care legislation, Republicans in Congress pushed Democrats into providing a mechanism by which the new legislation would be paid for. Hence, Democrats placed a requirement for every citizen to be enrolled, and if healthcare was not provided by their employer or already not enrolled in a government program, individuals were required under this law to purchase individual insurance – with no option to opt out.  Accordingly, opposition to #ObamaCare argues before the Court; whether Congress can compel citizens to purchase health insurance?

 Conveniently, present-day US Supreme Court is heavily influenced and packed with adulterated Justices who are often seen cuddling with special business interest and who also hold extreme religious convictions. In fact, Chief Justice and Associate Justices in the Court with Conservative/extreme-religious credentials make up the majority of the Court and therefore, often tip the balance on the side of conservative/religious causes. So far however, the most adulterated Justice (Thomas) has remained mum in this Court’s session and on this particular case. This silence notwithstanding, John Roberts, Antonin Scalia, Samuel Alito, Clarence Thomas and Anthony Kennedy comprise the known pack of conservative/religious scoundrels in the Court who will ultimately decide Scoundrels vs. ObamaCare.

Joseph Chez ///

THE CHICKEN HAWK BRIEF: CITIZENS UNITED v. FEC

Citizens United v. Federal Elections Commission, 558 U.S. ___ (2010)


By

Joseph Chez

Why should I be surprised that Justice Anthony M. Kennedy wrote the majority opinion for the above case, when at a private gathering, standing next to Justice Kennedy, I heard him say, “Anybody else but Hillary!” And yet, the U.S. Supreme Court just handed down a landmark case decision (January 21, 2010) which is a game changer for American politics. Further, political experts believe the Court placed its judicial weight - favoring the political right. The 5-4 decision now lifts campaign limits and restrictions on corporate spending in federal elections. But, the political left in the country is not surprised; under the Rehnquist court, in December 2000, in Bush v. Gore, 531 U.S. 98 (2000), the U.S. Supreme Court ruled in favor of George W. Bush and simply gave away the 2000 presidential election to the republicans. This week, the Robert’s Court ushered a new era of corporate America having a free reign to dominate all things political in the country. The rationale? I can assure you that the issues are rather complex, but I have briefed the recent Supreme Court ruling for the masses rather than for law professors, and thus, I have come out with this Chicken hawk legal brief:
________________________________________________________________________

CHICKEN HAWK -- THE BRIEF

Citizens United v. Federal Elections Commission

FACTS: A nonprofit corporation, Citizens United, released a documentary (hereinafter Hillary) critical of then Senator Hillary Clinton and candidate in the 2000 Presidential Election, which potentially violated the Bipartisan Campaign Reform Act (BCRA) prohibiting corporations and unions from using their general funds for speech that is deemed “electioneering communication” and that is publicly distributed expressly advocating the election or defeat of a candidate. 2 U.S.C. § 441b. Citizens United thus sought declaratory and injunctive relief fearing violation of election laws.

PROCEDURAL HISTORY:
On appeal from the United States District Court for the District of Columbia for which the three-judge district court denied appellant's motions for preliminary injunctions. Appellant is now requesting the Court for motion to dismiss or affirm.

ISSUE: 1. Whether 2 U.S.C. §441b of BRCA is valid and applicable under

Austin v. Michigan as the lower court did not resolve the issue?

2. Whether the Federal Elections Commission (FEC) violated Citizens United’s free speech?

3. Whether disclaimers and disclosure requirements are valid and must be confined to “speech?”

RULING: 1. Speech within the reach of rules created for regulating political speech is chilled and functions as the equivalent of prior restraint, giving the FEC power analogous to the type of government practices that the First Amendment was drawn to prohibit. A statute that chills speech can and must be invalidated. Sec. 441b’s prohibition on corporate independent expenditures is an outright ban on speech. Austin v. Michigan is overruled. The part of McConnell v. Federal Elections Commission that upheld BCRA §203’s extension of §441b’s restrictions on independent corporate expenditures is also overruled.

2. Speech is of primary importance to the integrity of the election process. And, because speech is an essential mechanism of democracy – it is the means to hold officials accountable to the people – political speech must prevail against laws that would suppress it by design or inadvertence.

3. Citizens United’s contention that disclosure requirements must be confined to speech as it is the functional equivalent of expressed advocacy is rejected.

RATIONALE:
Case can not be resolved on a narrower ground without chilling political speech, speech that is central to the First Amendment’s meaning and purpose; however, Citizens United did not waive a challenge to the Austin ruling. Notwithstanding, even though speech itself is of primary importance to the integrity of the election process, Austin provides no basis for allowing the Government to limit corporate independent expenditures. Hence, §441b’s restrictions on such expenditures are invalid and cannot be applied to Hillary. Further, Government may not suppress political speech based on the speaker’s corporate identity and no government interest justifies limits on the political speech of nonprofit or for-profit corporations.
Disclosure requirements are the less-restrictive alternative to more comprehensive speech regulations.

DISPOSITION:
Applications of §201 and 311 (disclaimer and disclosure requirements) affirmed.

Reversed in part, affirmed in part (Austin ruling, §203 of McConnell), and remanded.
__________________________________________________________________________________

In McConnell v. Federal Elections Commission, 540 U.S. 93, 203-209, the court placed limits on electioneering communications in a facial challenge, relying on the holding of the Austin case.

In Austin v. Michigan Chamber of Commerce, 494 U.S. 652, the court held that political speech may be banned based on the speaker’s corporate identity.
_________________________________________________________________________________


Of course, I wrote this brief in order to better understand the reasoning behind the ruling. However, having read the entire opinion, I still fail to grasp its practical approach and legal reasoning. And just like the rest of the country, I remain confused and flabbergasted. Notwithstanding, the Supreme Court’s decision inadvertently thus leaves the country with more questions than it answers. In fact, one could aptly conclude that this ruling was deliberate and with purpose. Why you may ask? There is the belief amongst legal scholars that the conservative majority within the court is a judicial activist group pursuing a conservative agenda.  It simply makes sense that this catechism majority in the Court, is framing the issues to favor the political right and/or in anticipations of over turning cases such as Roe v. Wade. Far fetched? Not so. For if corporation can be construed as legal participants, the same as individuals, within the scope of federal elections, it follows that fetuses may also have a “voice” duly recognized by stare decisis. Or, how about this; currently, nonprofit groups such as churches are tax exempt, but are barred from political campaign intervention under IRS Code §501(c)(3). However, since many churches today are heads of nonprofit corporations, can churches now openly campaign and influence elections on issues dear to their gospel? For example: Right to life issue, or gay marriage?

However, we must insist that while under the Citizens United ruling, if corporations are to be recognized, the same as individuals, that such enterprise also be held accountable, the same as individuals. What comes to mind is, “libel.” Thus, if the Swift Boaters of America, a nonprofit corporation engages in defamation of political candidates on the left, they should not be able to seek protection under the First Amendment.

In sum, the current Supreme Court decision does however: 1) provide for corporations to be treated as individuals; 2) does away with regulations prohibiting corporations (unions) from using their funds in federal elections; 3) corporations and associations can now openly campaign in favor or against a candidate; 4) also eliminates restrictions on campaign ads prior to a primary or election; 5) and last, it keeps regulations which prohibit direct contributions to candidates.

Of course, I do not want to leave you with any inference that Justice Kennedy ruled in favor of Citizens United because he may not like Hillary. Simply, standing next to him, after a dedication of a U.S. District Court (branch), a friend of mine asked Justice Kennedy how he felt about a potential woman becoming president of these United States of America. His statement and facial expressions said it all. However, I want to believe that despite his possible disdain for Hillary Clinton, that Justice Kennedy’s ruling was entirely within the scope of jurisprudence and his judicial discretion. I will tell you however, why I decided to name the brief, the CHICKEN HAWK. Because, like they say in corporate office, when there’s lots of money to spend and lots of politicians willing to take it – IT WILL BE EASY PICK’INS!

ISSUE OF JUDGE SONIA SOTOMAYOR IS A NON SEQUITUR

Non sequitur - It does not follow, the argument by Republicans that nominee for the United States Supreme Court, Judge Sonia Sotomayor, is a racist. Starved for attention and relevancy, Republican strategist and pundits have grabbed on to a statement made by Judge Sotomayor, and have taken it out of context to paint this nominee as a racist. Clearly, these "macaca" crowd have began a smear campaign against this eminent judge, solely for the purpose of derailing the nomination process. What's more, these aggrieved "white-male" Republicans are not only beating the war drums, but are also vent on character assassination of the nominee. Further, while they can only muster a charge of a perceived racist statement, these Republicans have prominently shown their cross and stars. One prominent Republican stated that Judge Sonia Sotomayor's name is too hard to pronounce and that she should change her name. Perhaps, he did not like the foreign sounding name. Another leading Republican and former candidate for the presidency even called the nominee by the wrong name and called her "Maria." Ooops! But one pundit stooped so low, that he called Judge Sotomayor an "affirmative pick."

So, while these Republicans can not attack Judge Sotomayor's eminent academic credentials or her skillful jurist temperament, they are acting like the crowd that they are; a group of grumpy white-males whose elephant emblem is fast transforming into a soon to be an extinct mammoth. Further, it is apparent by their actions, that usage of race innuendo and/or reference to her ethnicity is by all accounts - race baiting. Thus their argument that Judge Sotomayor's statements were racist, is simply a non sequitur (does not follow).

Further, it should be noted that Judge Sotomayor does not deny she ever made such a statement which included the term "white-male." However, she made such reference only in the context of wanting to distinguish her perspective as a Latina, as opposed to that of a "white male." Conversely, one would not infer or conclude that by using the phrase- "as a white-male, my perspective would be different from that of a Latina"- that such statement could be construed as derogatory against a white male making such statement. Therefore, it follows, that Judge Sonia Sotomayor's statement should not be construed as racist, for she is not known to be of such fabric. Thus, a legal maxims states: an act does not make a person guilty unless his mind (or intention) is guilty.

It does follow however, that nominee Judge Sonia Sotomayor, an American, is eminently qualified to be a Justice of the Supreme Court of the United States of America. She brings to the Court eminent academic credentials, experience from the bench, proven intellect, a jurist temperament, but also brings a unique perspective to the Court that is lacking.

Justice Sonia Sotomayor, ...bienvenida.

Joseph Chez