Saturday, May 16, 2009

Obama's Whiteness: Protecting Bush-Cheney War Crimes

My published NYT comment #37.
May 16, 2009 10:14 am


May 16th, 2009 6:21 am

In David Sanger's piece I take issue with his statement:

"the president has begun to come down on the side of taking fewer risks with security,..." This is a neoliberal argument.

Is this what Obama is doing? Is he really taking fewer risks or is he taking more risks?

1. By refusing to release detainee abuse photos, Obama is refusing to inform the American public what they have a right to know. How can Democracy work if We the People are kept in the dark about the specific policies and practices of the government (Bush-Cheney) the majority elected to office? What else is Obama conspiring to hide from us? Will we find out only after he leaves office, as in the case of Bush?

2. Just who are these "enemy combatants" that the military tribunals are allegedly continuing to prosecute? The public has a right to see their faces on CNN and NYT and know something about them.

The US electorate (including me)voted for Obama because we were desperate for Change that would make us more safe. But we cannot be made more safe through military adventurism, troop surges, shock and awe, drone raids and failure to protect market activity against corporate greed. That's the dualcore problem of the US Whiteness System on which the nation was founded.

Obama's decision to emulate his predecessor shows his inability and unwillingness to step out of the US Whiteness System that is built on an earlier history of slavery and genocide, and for the last 50 years an endless war driven by market fundamentalism (resource grabbing) in West Asia, South East Asia and South Asia for profit. I could go on, name other theaters of US adventurism/exploitation in Africa and South America.

Obama is an expert exponent of the US Whiteness System.

Chithra KarunaKaran
Ethical Democracy As Lived Practice
NYT copyright
News Analysis: Obama After Bush: Leading by Second Thought

The president’s recent decisions on detainee abuse photos and tribunals have put him more in line with his predecessor, despite pledges of a new direction.
NYTimes copyright
Pool photo by Brennan Linsle

Updated: May 15, 2009

Military commissions, used to prosecute captured enemies for war crimes, have a long history in the United States. They rose to new prominence after the September 11th attacks due to President George W. Bush's decision that terrorism suspects would be considered enemy combatants who would be tried by military tribunals rather than in civilian courts. In May 2009, President Obama said they would be used to prosecute some terrorism suspects, although with added protections for defendants' rights.

In a series of orders in 2001 and 2002, the Bush administration created a system of tribunals that specifically did not adhere to the standards set out in the Geneva Convention, arguing that as "non-state actors'' the suspects were not entitled to that kind of protection; the system was also declared to be beyond review by federal courts. The government established a prison camp at Guantánamo Bay Naval Base in Cuba to hold these prisoners away from federal court jurisdiction, arguing that the right of habeas corpus — the fundamental right, centuries old, to ask a judge for release from unjust imprisonment — did not apply to foreigners being held outside the United States as enemy combatants.

In 2004, the Supreme Court disagreed, in a case named Rasul v. Bush. A Supreme Court decision in June 2006, Hamdan v. Rumsfeld, struck down military tribunals that the Bush administration had established shortly after the Sept. 11 attacks. The court ruled that the tribunals violated the Constitution and the Geneva Conventions.

In response, the Bush Administration and Congress effectively rewrote the law, by passing the Military Commissions Act of 2006. The measure broadened the definition of enemy combatants beyond the traditional definition used in wartime, to include noncitizens living legally in the United States as well as those in foreign countries and anyone determined to be an enemy combatant under criteria defined by the president or secretary of defense. In place of habeas proceedings, it said detainees could challenge their imprisonment only through hearings known as combatant status review trials. It allowed evidence seized in the U.S. or abroad without a search warrant to be admitted in trials. And while the bill barred the admission of evidence obtained by cruel and inhuman treatment, it made an exception for any obtained before Dec. 30, 2005, when Congress enacted the Detainee Treatment Act banning torture.

In a June 2008 decision in the case of Boumediene v. Bush, the Supreme Court overturned those portions of the law, finding that foreign terrorism suspects held at Guantánamo Bay have constitutional rights to challenge their detention in United States courts. In a harsh rebuke of the Bush administration, the Court rejected the administration’s argument that the individual protections provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 were more than adequate.

Among the first acts carried out by the administration of President Barack Obama in January 2009 was an executive order closing Guantánamo. It also issued an immediate halt to the military commission proceedings for prosecuting detainees and filed a request in Federal District Court in Washington to stay habeas corpus proceedings there.

Mr. Obama suggested during his 2008 presidential campaign that, in place of military commissions for the detainees, he would prefer prosecutions in federal courts or, perhaps, in the existing military justice system, which provides legal guarantees similar to those of American civilian courts. However, he never explicity ruled out the use of military commissions, though possibly with different procedures than those used by the Bush administration.

On May 15, 2009, Mr. Obama said the commissions would be used as one avenue for prosecution along with existing American courts. "This is the best way to protect our country, while upholding our deeply held values," he said in a statement.The new system would limit the use of hearsay evidence against detainees, ban evidence gained from cruel treatment, and give defendants more latitude to pick their own lawyers.

But the new rights still fall far short of the protections provided in federal court, lawyers said, predicting that the administration would encounter energetic new legal challenges that could take years to resolve.Officials said the decision to proceed with military commissions came partly as a result of concerns that some detainees might not be successfully prosecuted in federal courts. They said lawyers reviewing the cases worried that, among a host of issues, federal courts procedures might be too cumbersome to protect classified evidence that is likely to be central to many cases.

They also said questions surrounding the brutal treatment of some detainees had become an obstacle. Though some detainees did give so-called "clean" confessions to participating in terrorist activities in 2007, they were not given the warnings against self-incrimination that are standard law enforcement practice because of constitutional protections.

In some cases, lawyers said, convictions may be nearly impossible without the detainees' confessions. The most prominent of the military commissions cases seeks the death penalty for five detainees, including the self-described terrorism mastermind, Khalid Shaikh Mohammed, for their alleged roles as the coordinators of the Sept. 11, 2001 attacks.

Administration officials said that some detainees would be prosecuted in federal courts.

The decision benefits the administration politically because it burnishes Mr. Obama's credentials for taking a hard line toward terrorism suspects. Some administration insiders say top officials have appeared surprised by the ferocity of the largely Republican opposition to Mr. Obama's effort to close the Guantánamo Bay prison, where 241 detainees remain.

But some liberals and human rights groups said they were stunned by what some of them called a betrayal. They said the prospect of the new administration presiding over military trials at Guantánamo would hurt Mr. Obama's efforts to improve relationships around the world and would embroil the administration in years of legal battles.

The executive director of Human Rights First, Elisa Massimino, called the commission system of trying war crimes cases irredeemable. "Tinkering with the machinery of military commissions will not remove the taint of Guantánamo from future prosecutions," Ms. Massimino said.

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