Archive for the 'law' Category

24
Oct
10

The pathetic case against Omar Khadr

The United States strongly condemns the use of children as well to pursue violent agendas. We call upon all parties to immediately release all children within their ranks, to halt child recruitment, and to provide for the proper reintegration into civilian life of former child soldiers. —Susan E. Rice, U.S. Permanent Representative to the United Nations, September 16, 2010, at a Security Council debate on Somalia

UPDATED BELOW

Which is the most appallingly evil thing about the sad, ridiculous incarceration and trial(s) of Omar Khadr?

That a CHILD of 15, shot twice in the back, and blinded in one eye, is accused of WAR CRIMES for fighting back against an invading army that bombed and rocketed his compound before sending in the Special Forces, chucking grenades and … well, shooting children in the back?

That much of what we know about the firefight comes from the heavily redacted report by one OC-1, the “government employee” who shot Khadr in the back, twice?  And that that report only fell into reporters’ hands by accident, because the prosecution team accidentally left it where journalists could see it? And that there was a standoff worthy of the Keystone Kops where the authorities insisted the report be returned, with the reporters (naturally) refusing?

That OC-1’s testimony makes it clear that no one knew who threw the grenade that killed Sgt. Speer? It might have been his own comrades.

That Khadr was clearly tortured, and that whatever he confessed to must be seen in that light, and dismissed?

That half a dozen military PROSECUTORS have been disgusted enough to quit? “This is neither military, nor justice,” said one.

Another prosecutor’s case is reminiscent of Soviet psychiatric examinations for dissenters:

Lt. Col. Darrel Vandeveld, formerly lead prosecutor in another commissions case against a child soldier—a case that collapsed midway through, with the government dropping all charges. “It would be foolish to expect anything to come out of Guantánamo except decades of failure. There will be no justice there, and Obama has proved to be an almost unmitigated disaster,” he told me. After resigning from the commissions as a matter of ethical principle, Vandeveld was punished with a mandatory psychiatric evaluation and gratuitous hearings into his fitness for remaining in the Army, even though he now has only two months remaining in his term of service. Vandeveld, who has deployed to Iraq, Afghanistan, and Bosnia, doubts very much that any more prosecutors will resign after his highly visible reprimand.

That Obama, who vowed to “close Guantanamo, reject the Military Commissions Act and adhere to the Geneva Conventions,” has not gotten around to any of those things yet. What DID he do? He

abruptly barred four of the most knowledgeable reporters from returning to Gitmo, accusing them of violating an order that the identity of Omar Khadr’s primary interrogator be kept secret. It doesn’t matter that “Interrogator Number One,” convicted in a 2005 court martial for prisoner abuse at Bagram prison, had already been interviewed by one of these journalists two years ago and that his identity is available in the public record.

That the prosecution has engaged a shady charlatan who promotes himself as an “expert in evil” as a kind of last half-hearted effort to demonize Khadr?

That Khadr’s options are still ridiculous, to face the farcical military commissions trial, or agree to a plea-bargain that will see him behind bars for eight more years?

As has been argued forcefully elsewhere, the war criminal is not Omar Khadr.

Even if Khadr did everything alleged, none of the five charges as actually lodged describes a criminal violation of the law of armed conflict (LOAC). Two of the charges, conspiracy and providing material support to terrorism, are inherently problematic. The remaining offenses, murder and attempted murder “in violation of the law of war,” and spying, are capable of valid application, but lack legitimacy in Khadr’s factual situation. Essentially the government seeks to distort the fundamental legal equality between opposing belligerents into a unilateral shield for coalition personnel, turning the conflict into a “hunting season” in which U.S. forces can shoot their enemy on sight but their adversaries commit a war crime by fighting back. Because the tribunals’ statutory bases, the Military Commission Acts of 2006 and 2009, were enacted after Khadr was in custody, any charges lacking sound grounding in the LOAC constitute impermissible ex post facto enactments.

It’s Sunday night. The trial is scheduled to resume tomorrow morning and Khadr’s legal team might agree to a plea bargain any minute. Which would be a tragedy. Of course, his going forward with the trial might be even more tragic.

The laws and treaties that bind the United States are clear. Omar Khadr should not have served a single day in any prison. He was 15, a child, when captured. In a just world, he should be paid massive restitution from both the United States and Canadian governments. I know. Fat chance of that.

UPDATE: Omar Khadr has plead guilty to all charges against him.

Not at all surprising, just very very sad.

Pithiest comment so far: “Well, it’s official now. Anyone fights a U.S. attacker, s/he’s committed a war crime. Even if s/he didn’t, even if s/he was a child.”

21
Jan
10

“Whores-Race Politics”

USA, LLC

Supreme Court rejects limits on corporate spending in electoral campaigns:

A divided Supreme Court on Thursday swept away decades of legislative efforts to restrict the role of corporations in election campaigns, ruling that severe restrictions on corporate spending are inconsistent with the First Amendment’s protection of political speech.

Chris Lehmann has the best headline: High Court Upholds Whores-Race Politics, although the metafilter one-liner (“The Business Plot of 1933 has reached a logical conclusion”) comes close, and gives me a chance to name-check Smedley Butler again.

Lehmann’s analysis:

The ruling also effectively rolls back many curbs on “soft-money” campaign financing–the coy corporate practice of doling out dosh on candidates’ behalf via dummy interest-group expenditures–during the homestretch of elections that were instituted in the already weak McCain-Feingold campaign finance law. In the majority opinion, Justice Anthony Kennedy stirringly pronounced that “the censorship we confront is now vast in its reach,” neglecting of course to mention that virtually every other Western democracy has far stricter curbs on rampant private-sector electioneering while also mysteriously permitting their private citizens to express themselves just fine.

And Dahlia Lithwick’s The Pinocchio Project has the best subhed: “Watching as the Supreme Court turns a corporation into a real live boy.”

The court had to reach out far beyond any place it needed to go to strike down century-old restrictions on corporate spending in federal elections. This started off as a case about a single movie. It morphed into John Roberts’ Golden Globe night.

Funny. This is a silly case, and what the Court has wrung from it is so preposterous that you want to laugh. But no.

But you can plainly see the weariness in [dissenting Justice John Paul] Stevens[‘] eyes and hear it in his voice today as he is forced to contend with a legal fiction that has come to life today, a sort of constitutional Frankenstein moment when corporate speech becomes even more compelling than the “voices of the real people” who will be drowned out.

“A Constitutional Frankenstein moment.” It has been a pretty awful week.

20
Jan
10

Prostitutes = sex offenders in New Orleans

In New Orleans, the cops and the DA’s office are using a 200-year-old state law written for child molesters to charge hundreds of sex workers as sex offenders.

photo by Abdul Aziz for Colorlines

The law, which dates back to 1805, makes it a crime against nature to engage in “unnatural copulation”—a term New Orleans cops and the district attorney’s office have interpreted to mean anal or oral sex. Sex workers convicted of breaking this law are charged with felonies, issued longer jail sentences and forced to register as sex offenders. They must also carry a driver’s license with the label “sex offender” printed on it.

An article in Colorlines, the national newsmagazine of race and politics, quotes community activist Deona’s assertion that this weird manipulation of the law “is part of an overall policy by the New Orleans Police Department to go after petty offenses.” Colorlines reports that New Orleans police arrest more than 58,000 people every year. Of those arrested, nearly 50 percent are for traffic and municipal offenses, and only 5 percent are for violent crimes.

Sex workers accused as sex offenders face discrimination in every aspect of the system. In most cases, they cannot get released on bond, because they are seen as a higher risk of flight than people charged with violent crimes. “This is the level of stigma and dysfunction that we’re talking about here,” said [Josh] Perry [a former attorney with the Orleans Public Defenders office]. “Realistically, they’re not getting out.”

The prospect of challenging sex offender charges is made especially difficult by yet another weird Louisiana legal catch-22. According to Perry, “The way Louisiana’s habitual offender law works, if you challenge your sentence in court and lose, and it’s a third offense, the mandatory minimum is 20 years. The maximum is life.”

If you fall on the wrong side of the law just once, as was the case for many of the women interviewed for this article,  you are going to have a major struggle ever getting your life back on track.  Beyond the ongoing weirdness of this obsessive criminalization of sexual behavior, this seems to be one more glaring instance of the criminalization of being poor and helpless.

22
Nov
09

It’s (show) trial time

Updated below.

A nation circling the drain can’t ask for anything better than a good show trial to take its mind off its myriad troubles.

I’m sure the trial will be an exemplary demonstration of cool, rational jurisprudence, and never mind the five other Guantanomo detainees who will be tried by military tribunals.

If you’re accused of being a Terrorist, there’s not one set procedure used to determine your guilt; instead, the Government has a roving bazaar of various processes which it, in its sole discretion, picks for you based on ensuring that it will win. Even worse, Holder repeatedly assured Senators that the administration would continue to imprison 9/11 defendants even in the very unlikely case that they were acquitted, citing what they previously suggested was their Orwellian authority of so-called “post-acquittal detention powers.” Is there any better definition of a “show trial” than one in which the defendant has no chance of ever being released even if acquitted, because the Government will simply thereafter assert the power to hold him indefinitely without charges?

Alexander Cockburn in Counterpunch:

Of course there are those who gravely lament the impending spectacle, the fakery of judicial “impartiality”, the pompous sermons about the rule of law, the hysteria, the howls for vengeance. Bring them on, say I. Let’s face it, we could do with some drama and American political life is at its most vivid amid show trials. Their glare discloses the larger political system in all its pretensions and   its disfigurements. The show trial is as American as cherry pie , as  the former Black Panther H. Rap Brown – currently serving life without the possibility of parole in the Supermax in Florence, Colorado – famously said about violence.

The meatiest part of the Cockburn piece comes courtesy of The real price of trying KSM, an excellent Slate article by David Feige, a former public defender, about the mountains of bad legal precedent that will come from all this:

At each stage of the appellate process, a higher court will countenance the cowardly decisions made by the trial judge, ennobling them with the unfortunate force of precedent. The judicial refusal to consider KSM’s years of quasi-legal military detention as a violation of his right to a speedy trial will erode that already crippled constitutional concept. The denial of the venue motion will raise the bar even higher for defendants looking to escape from damning pretrial publicity. Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants. Finally, the twisted logic required to disentangle KSM’s initial torture from his subsequent “clean team” statements will provide a blueprint for the government, giving them the prize they’ve been after all this time—a legal way both to torture and to prosecute.

In the end, KSM will be convicted and America will declare the case a great victory for process, openness, and ordinary criminal procedure. Bringing KSM to trial in New York will still be far better than any of the available alternatives. But the toll his torture and imprisonment has already taken, and the price the bad law his defense will create will exact, will become part of the folly of our post-9/11 madness.

Update: The last word will be to an old guy. Paul Craig Roberts, in the aptly titled “A Trial to Convict Us All,” reminds us that Thomas Paine  wrote in Dissertations on First Principles of Government (1790):

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

Every principle of impartiality tossed aside that protects Those Who Deserve No Protection (like, uh, say, Terrorist MasterMinds ™, is another law WE lose to protect our own sorry selves. It’s a pretty simple concept. Been around for a while.