By William Fisher
My friends will probably be surprised to hear me say, “I’m a really lucky guy. I’m happy!” They’ll think I’ve developed a marshmallow brain.
Well, maybe so. But here it is: “I’m a really lucky guy!” And happy about it!
And the source of these newfound feelgoods? No, I didn’t win the lottery. And, no, I didn’t win a Pulitzer either.
So why?
I wake up at five every morning and read six or seven papers online. And they are always full of depressing stuff. Serial killers. Child rapists. Parents murdering their children. Unmanned drones dropping bombs on innocent villagers. Demagogic rants from people too stupid or too craven to get elected to Congress, but elected anyway (by us). Health care prescriptions from folks not shamed by the idea of making a profit off someone else’s poor health. And authoritative nostrums for mending all our foreign policy ailments from fulltime professional critics who never had the responsibility of mending anything.
So this makes me happy?
No. The thing that makes me happy is that I am able to read six or seven newspapers. I’m happy that these newspapers – or, these days, blogs – give people with whom I may disagree profoundly a platform from which to broadcast their ideas. And I’m happy that in the country I live in there’s no government censor, no invisible hand guiding me toward safe self-censorship, and no knock at the door at two in the morning.
The Gestapo didn’t come to deliver your milk. Neither did the Stasi. Or the KGB. Or the apparatchiks of the Middle East despots we continue to fawn over and look the other way because they still have the black gold we need to run our country.
How easy it is for us Americans to forget that in most of the rest of the world those who scribble their way to a living aren’t so lucky. The world’s jails are full of men and women who never dreamed it could be a crime to voice an opinion, no matter how controversial. Or others who knew all too well that there might be a price to be paid, but voiced the opinion anyway.
So this morning I read that Omid Mir Sayafi, a 29-year-old blogger who had been jailed for 30 months for insulting Iran’s ruling clerics, died in Tehran's main prison. The International Campaign for Human Rights in Iran, which advocates for activists in the country, reports that Sayafi suffered from severe depression and had taken extra doses of medication. The group blames Iran's government for unsafe conditions in its prisons.
Then I read that the Committee to Protect Journalists is calling on the Iranian authorities to release the many journalists detained in the aftermath of the disputed presidential election and to lift the onerous press restrictions that are choking information at a time when the country and the world most need it.
Then authorities instruct the BBC's bureau chief to leave the country. The signals of the BBC and U.S.-government backed radio and televisions stations remain jammed. The government shuts the Tehran offices of a major Arab satellite station -- the Dubai-based satellite channel Al-Arabiya – indefinitely. Newspaper censorship is widespread, an Iranian journalism group says..
But the repression is not limited to Iran. It’s happening wherever journalists feel constrained to speak the truth. In the Middle East, the jails of Egypt and many other countries with authoritarian regimes are filled with journalists and bloggers who strayed off the government-dictated path. And it’s not just Egypt; Saudi Arabia has one of the most extensive – and expensive technological systems for selectively blocking Internet access, perhaps second only to the setup in China, which is among the world’s major Internet censors. And in Russia, outspoken journalists just get murdered.
But I confess to being drawn toward the outrages in Egypt, because I used to live and work there. I am struck by the blogger who is sentenced to a four-year jail sentence for calling President Hosni Mubarak a “symbol of dictatorship,” and Al-Azhar University a “university of terror.”
“If we let people like him off without punishment, a wildfire will blaze up that consumes everything in its path,” prosecutor Mohammed Dawud warns. He adds, ”Exactly that is what civil rights activists dream of, many of whom pin their hopes on a grass-roots digital democratization initiated by the country’s bloggers.”
And in Alexandria, blogger Abdel Karim Nabil Suleiman is taken from his home and detained by State Security agents, Bloggers who visited his family report that the family believes Abdel Karim’s political opinions and writings for several outlets, including Copts United, are behind the arrest. Suleiman is a 21-year-old law student at al-Azhar University
(Al-Azhar University is the center of Arabic literature and Sunni Islamic learning in the world and the world's second oldest surviving degree granting university. Its mission includes the propagation of Islamic religion and culture and its Islamic scholars (ulemas) render edicts (fatwas) on disputes submitted to them from all over the Sunni Islamic world regarding proper conduct for Muslim individuals or societies. Al-Azhar also trains Egyptian government appointed preachers in proselytization (da'wa).)
Exactly three years ago, the newly-elected president of the Union of Egyptian Journalists proclaimed that President Hosni Mubarak had promised to abolish prison sentences for journalists in connection with their work. Three years later, nothing has changed.
Despite all the recent rhetoric to the contrary, thirty-five offences, including defamation and insulting President Mubarak or a foreign head of state, continue to be punishable by imprisonment. The ceiling for certain fines has been doubled. In cases of very large fines, journalists can be imprisoned as debtors if they are not in a position to pay the fine immediately.
Prominent journalists are currently being prosecuted for articles they have written and are facing imprisonment. They have been sentenced to a year in prison and fines of 10,000 Egyptian pounds (1,400 euros) for insulting President Mubarak.
Egyptian journalists working for foreign news media have also not been spared. An Al-Jazeera reporter was prosecuted on a charge of “endangering the national interest and the country’s reputation” in connection with a documentary she was making about torture in Egyptian prisons.
Nor has much changed elsewhere in the world’s truth-repression zones. There is no Get Out of Jail Free card for journalists – citizen and otherwise – who happen to have been born in one of these zones. And, sadly to say, they are increasing.
We are not in such a zone. Our newspaper industry may be disappearing, but we’re in the process of reinventing the information business. And ranting and raving – misinformation, disinformation -- is simply a part of that process. Exasperating as that may be!
OK, I acknowledge that I would be happier if those I disagree with at least expressed themselves rationally. And, yes, maybe I could live without the Glenn Becks and Michele Bachmanns of the world.
But, then, where would I go for belly laughs?
Well, I guess there’s always Rush Limbaugh.
But I’m happy enough just knowing I’m one of the lucky ones who doesn’t have to worry about the door knock at 2 A.M. And happy Glenn Beck doesn’t have to worry either.
Saturday, November 07, 2009
Changes in Military Commissions Fail to Impress Rights Groups
By William Fisher
Human rights advocates and legal scholars are voicing sharp criticism of President Barack Obama’s revisions to the Bush administration’s Military Commissions Act of 2006, characterizing them as unnecessary and saying the new law will lead to further delays and create a system of “second-class justice.”
One powerful advocacy group, the American Civil Liberties Union (ACLU), called on the Obama administration to “abandon the fatally flawed military commissions system and, where evidence of terrorism crimes exists, try the Guantánamo detainees in federal courts.”
Said the Center for Constitutional Rights, an advocacy group that has mobilized dozens of lawyers to defend inmates at Guantanamo Bay, “The use of military commissions will only lead to further delays in a process already long overdrawn. Any new system will inherently fall prey to growing pains and missteps, and years of appeals after trial to sort through the new legal uncertainties created today. Fundamental aspects of the system, such as who may be tried before such commissions, remain vague.”
The group added that the new law “includes ‘conspiracy’ and ‘material support’ as war crimes, contradicting the Obama administration’s prior position that they did not qualify as offenses triable by military commission.”
President Obama signed the new bill into law this week, as part of the National Defense Authorization Act (NDAA).
Other critics of the new legislation were able to point to some improvements over the prior measure. One of them is David Frakt, who served as an Air Force officer and military defense counsel with the Office of Military Commissions. Lt. Col. Frakt, who called the original military commissions “a catastrophic failure,” was defense counsel for a young GITMO prisoner, Mohammed Jawad, who was released this summer to his home in Afghanistan after years in confinement after a military judge ruled his confession was coerced.
Frakt, who has returned to his work as a professor at Western State University College of Law in Fullerton, California, told IPS, “Clearly, the new military commissions are a significant improvement, at least on paper, over the previous incarnations. The revisions to the hearsay rules and the establishment of a voluntariness standard for the admissibility of statements are the two most significant improvements.”
However, he added, “The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second, there is no derivative evidence rule, or ‘fruit of the poisonous tree’ doctrine, so even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, the MCA still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism, terrorism, conspiracy, and the invented offense of murder in violation of the law of war. Fourth, juveniles may still be subject to trial by military commission.”
Frakt said military commissions “are wholly unnecessary.” He told IPS, “Now that that the evidentiary rules in military commissions have been tightenened to more closely resemble the rules in federal courts, the real reason for the creation of military commissions -- the ability to gain easy convictions on tainted evidence -- has largely been removed. But the taint of the original process still lingers. The perception that the military commissions are a second-class option remains.”
Frakt cited remarks made by Sen. Lindsay Graham, a Republican from South Carolina, a leading proponent of military commissions. Frakt said, “Comments that these people are terrorists who don't deserve full Constitutional rights reinforces this idea. (Sen. Graham) is clearly prejudging the cases and affording a presumption of guilt, not innocence. The Constitution sets forth the minimum due process that we believe is necessary to ensure a fair trial. Why would we ever want to go below that?”
He said, “The criteria for determining which cases go to commissions and which to federal courts make no sense. Basically, the cases will go to federal court if the Justice Department wants the case and thinks they can prove it, and the rest of the cases will go to the military commissions. This is further proof that the commissions are a second-class option.”
An amendment to the law introduced by Sen. Graham would have blocked transfer of alleged 9/11 planners to federal criminal court. It was defeated 54-45. Christopher Anders, Senior Legislative Counsel for the American Civil Liberties Union (ACLU), told IPS he regarded this as “a big win.”
He said, “Thankfully the Senate has made the right decision by not tying the president’s hands when it comes to prosecuting detainees. Making it more difficult to prosecute detainees in our federal courts only serves to delay bringing them to justice.” He pointed out that the U.S. has successfully tried nearly 200 international terrorism defendants in federal courts since 9/11. “We have an American system of justice that works, and there is no reason not to use it,” he said.
The military commissions created by President Bush after the 9/11 attacks and subsequently authorized by Congress tried only three cases.
Others were equally scathing in their criticism of the new commissions. Francis Boyle, a law professor at the University of Illinois, characterized the commissions as “Obama's Kangaroo Courts.”
He told IPS, “The Gitmo Kangaroo Courts constitute war crimes under the Laws of War, the Four Geneva Conventions of 1949, and even the U. S. Army's own Field Manual.”
And Gabor Rona, international legal director of Human Rights First, told IPS, “The assertion that regular courts are for regular crimes and military commissions are for war crimes is false. If it were true, then why do we have a War Crimes Statute that creates jurisdiction in our federal courts?”
He added, “I'm particularly struck by this disconnect: the Task Force (appointed by President Obama) recognizes the historic limitation for use of military commissions, namely situations of ‘military necessity,’ which is properly understood as, for example, in situations of occupation where the usual mechanisms of justice are not operating. But then, despite acknowledging the success of federal court terrorism prosecutions, the Task Force sets out a series of considerations for deciding whether to send a case to military commission without due regard for the fact that federal courts are open and operating.”
Critics also pointed out what they termed other deficiencies in the new law. For example, they point out, the new bill also fails to include a sunset provision, making the system a permanent part of President Obama’s legacy.
Center for Constitutional Rights Executive Director Vincent Warren yesterday made the point even more starkly: “These are now President Obama’s military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”
The Obama administration is expected to announce its plans for prosecuting a number of Guantánamo detainees either in federal courts or before the Guantánamo military commissions by November 16. Several news organizations have reported that alleged 9/11 planners will likely be sent to federal criminal courts to be prosecuted by the Justice Department.
Human rights advocates and legal scholars are voicing sharp criticism of President Barack Obama’s revisions to the Bush administration’s Military Commissions Act of 2006, characterizing them as unnecessary and saying the new law will lead to further delays and create a system of “second-class justice.”
One powerful advocacy group, the American Civil Liberties Union (ACLU), called on the Obama administration to “abandon the fatally flawed military commissions system and, where evidence of terrorism crimes exists, try the Guantánamo detainees in federal courts.”
Said the Center for Constitutional Rights, an advocacy group that has mobilized dozens of lawyers to defend inmates at Guantanamo Bay, “The use of military commissions will only lead to further delays in a process already long overdrawn. Any new system will inherently fall prey to growing pains and missteps, and years of appeals after trial to sort through the new legal uncertainties created today. Fundamental aspects of the system, such as who may be tried before such commissions, remain vague.”
The group added that the new law “includes ‘conspiracy’ and ‘material support’ as war crimes, contradicting the Obama administration’s prior position that they did not qualify as offenses triable by military commission.”
President Obama signed the new bill into law this week, as part of the National Defense Authorization Act (NDAA).
Other critics of the new legislation were able to point to some improvements over the prior measure. One of them is David Frakt, who served as an Air Force officer and military defense counsel with the Office of Military Commissions. Lt. Col. Frakt, who called the original military commissions “a catastrophic failure,” was defense counsel for a young GITMO prisoner, Mohammed Jawad, who was released this summer to his home in Afghanistan after years in confinement after a military judge ruled his confession was coerced.
Frakt, who has returned to his work as a professor at Western State University College of Law in Fullerton, California, told IPS, “Clearly, the new military commissions are a significant improvement, at least on paper, over the previous incarnations. The revisions to the hearsay rules and the establishment of a voluntariness standard for the admissibility of statements are the two most significant improvements.”
However, he added, “The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second, there is no derivative evidence rule, or ‘fruit of the poisonous tree’ doctrine, so even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, the MCA still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism, terrorism, conspiracy, and the invented offense of murder in violation of the law of war. Fourth, juveniles may still be subject to trial by military commission.”
Frakt said military commissions “are wholly unnecessary.” He told IPS, “Now that that the evidentiary rules in military commissions have been tightenened to more closely resemble the rules in federal courts, the real reason for the creation of military commissions -- the ability to gain easy convictions on tainted evidence -- has largely been removed. But the taint of the original process still lingers. The perception that the military commissions are a second-class option remains.”
Frakt cited remarks made by Sen. Lindsay Graham, a Republican from South Carolina, a leading proponent of military commissions. Frakt said, “Comments that these people are terrorists who don't deserve full Constitutional rights reinforces this idea. (Sen. Graham) is clearly prejudging the cases and affording a presumption of guilt, not innocence. The Constitution sets forth the minimum due process that we believe is necessary to ensure a fair trial. Why would we ever want to go below that?”
He said, “The criteria for determining which cases go to commissions and which to federal courts make no sense. Basically, the cases will go to federal court if the Justice Department wants the case and thinks they can prove it, and the rest of the cases will go to the military commissions. This is further proof that the commissions are a second-class option.”
An amendment to the law introduced by Sen. Graham would have blocked transfer of alleged 9/11 planners to federal criminal court. It was defeated 54-45. Christopher Anders, Senior Legislative Counsel for the American Civil Liberties Union (ACLU), told IPS he regarded this as “a big win.”
He said, “Thankfully the Senate has made the right decision by not tying the president’s hands when it comes to prosecuting detainees. Making it more difficult to prosecute detainees in our federal courts only serves to delay bringing them to justice.” He pointed out that the U.S. has successfully tried nearly 200 international terrorism defendants in federal courts since 9/11. “We have an American system of justice that works, and there is no reason not to use it,” he said.
The military commissions created by President Bush after the 9/11 attacks and subsequently authorized by Congress tried only three cases.
Others were equally scathing in their criticism of the new commissions. Francis Boyle, a law professor at the University of Illinois, characterized the commissions as “Obama's Kangaroo Courts.”
He told IPS, “The Gitmo Kangaroo Courts constitute war crimes under the Laws of War, the Four Geneva Conventions of 1949, and even the U. S. Army's own Field Manual.”
And Gabor Rona, international legal director of Human Rights First, told IPS, “The assertion that regular courts are for regular crimes and military commissions are for war crimes is false. If it were true, then why do we have a War Crimes Statute that creates jurisdiction in our federal courts?”
He added, “I'm particularly struck by this disconnect: the Task Force (appointed by President Obama) recognizes the historic limitation for use of military commissions, namely situations of ‘military necessity,’ which is properly understood as, for example, in situations of occupation where the usual mechanisms of justice are not operating. But then, despite acknowledging the success of federal court terrorism prosecutions, the Task Force sets out a series of considerations for deciding whether to send a case to military commission without due regard for the fact that federal courts are open and operating.”
Critics also pointed out what they termed other deficiencies in the new law. For example, they point out, the new bill also fails to include a sunset provision, making the system a permanent part of President Obama’s legacy.
Center for Constitutional Rights Executive Director Vincent Warren yesterday made the point even more starkly: “These are now President Obama’s military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”
The Obama administration is expected to announce its plans for prosecuting a number of Guantánamo detainees either in federal courts or before the Guantánamo military commissions by November 16. Several news organizations have reported that alleged 9/11 planners will likely be sent to federal criminal courts to be prosecuted by the Justice Department.
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