Why Bush Can't Allow Habeas Corpus -- And Why We Need to Leave Afghanistan

Why Bush Can't Allow Habeas Corpus -- And Why We Need to Leave Afghanistan
Posted by Time for Change | Democratic Underground/General Discussion

The whole rationale for our war in Afghanistan probably would be exposed to the world as the farce that it is if the Bush administration allowed its "War on Terror" prisoners to use the writ of habeas corpus to challenge their detentions. That appears to be a major reason, if not the major reason, why the Bush administration has for several years fought tooth and nail to deny its prisoners the habeas corpus rights that are guaranteed under our Constitution. And it is also probably a major reason why whenever our courts have over-ruled the Bush administration in specific cases, Bush has released the respective prisoners rather than allow them a fair and open trial.

The whole rationale for our Afghanistan war is based on the presumed refusal of the Taliban to turn over Osama bin Laden, whom George Bush claimed to have perpetrated the 9/11 attacks on our country, to U.S. custody. But there are enough holes in that story to drive a truck through.

The ultimate rationale behind the indefinite imprisonment without charges of many or most of our "War on Terror" prisoners is rooted in the claim that they fought for the Taliban or al Qaeda against our country (when we invaded it). Since we accuse the Taliban of harboring bin Laden, whom we claim perpetrated the 9/11 attacks, and since we also claim that the Taliban knew of bin Laden's role in the 9/11 attacks and yet refused to hand him over to us, therefore the Taliban is guilty of terrorism, and so is anyone who fought for the Taliban when U.S. troops invaded their country.

Since that scenario provides the rationale for our imprisonment of the so-called "terrorists", and would therefore provide the basis for any formal charges that were to be brought against them in a fair and open trial, and since the underlying scenario can be so easily disproven, obviously the defendants' lawyers would attempt to expose that scenario for the fraud that it is if they were given the chance to do so in a fair and open trial. And then the whole house of cards that we call the "War on Terror" would come tumbling down. And then of course, quite a few high level officials would be vulnerable to war crimes charges.

That's it in a nutshell. Let's look at some of the evidence:

THE FRAUDULENT BASIS FOR THE U.S. INVASION OF AFGHANISTAN

Bin laden denied responsibility for the 9/11 attacks from the beginning

I'll start out with bin Laden's denials of responsibility for the 9/11 attacks. That of course means little by itself - except for the fact that our news media have been such cheerleaders for war that most Americans probably believe that bin Laden admitted his responsibility for the attacks from the beginning. But he didn't. To the contrary, six days following the attacks, CNN published the following statement by bin Laden, which he had made to al Jazeera:

The U.S. government has consistently blamed me for being behind every occasion its enemies attack it. I would like to assure the world that I did not plan the recent attacks, which seems to have been planned by people for personal reasons. I have been living in the Islamic emirate of Afghanistan and following its leaders' rules. The current leader does not allow me to exercise such operations.

Lack of evidence of bin Laden's involvement in 9/11

To support their claims of bin Laden's guilt, the British and U.S. governments published a dossier of "evidence". That dossier was lambasted by numerous critics, including Bronwen Maddox in the Times of London, as:

a puzzling and worrying piece of work with so many puzzling omissions that the document begins to undermine itself - more significant for what it leaves out than for what it leaves in, with few clues even to the form of evidence for September 11 - It seems lame - to the point of advertising a deficiency - to say that a signature of an al Qaeda attack is the absence of a warning.

One of the points of evidence was the claim that bin Laden warned his closest associates to return to Afghanistan by September 10th. But since there were no known incidents of bin Laden associates actually returning to Afghanistan shortly before September 11th, the evidence for that claim is quite weak.

Another of the major points of evidence was that three of the hijackers were said to be "associates" of bin Laden. But the nature of the alleged association with bin Laden was not very well spelled out.

And there was the claim that no other organization than al Qaeda is known to have both the motivation and the capability of carrying out such an attack. That claim has been widely disputed. But even if no such organizations were known to have had the motivation and capability of carrying out such attacks, that hardly constitutes evidence of al Qaeda involvement in 9/11.

Bush administration and Taliban interaction prior to the U.S. invasion of Afghanistan

But whether or not bin Laden was involved in the 9/11 attacks on our country is not the primary issue. The more relevant issue is what the Taliban - whom we declared war upon - had to do with it.

The Taliban never demonstrated the kind of intransigence on the issue that the Bush administration and the U.S. news media accused it of. To the contrary, The Taliban Information Minister, Qudrutullah Jamal, said from the beginning:

Anyone who is responsible for this act, Osama or not, we will not side with him. We told (the Pakistan delegation) to give us proof that he did it, because without that how can we give him up?'

But the Bush administration never provided that proof. It claimed to have secret information beyond the "dossier of evidence" described above, but it refused to share that secret information with the Taliban.

Then on October first, the Taliban went a step further. They agreed to extradite bin Laden to Pakistan - an American ally - to stand trial for charges of participation in 9/11. They agreed that if the court found sufficient evidence that bin Laden would then be extradited to the United States. And bin Laden even agreed to that. But President Musharraf turned the deal down, for the absurd reason that he could not guarantee bin Laden's safety.

George Bush turned down all Taliban offers, saying "We know he's guilty. Turn him over". Bush later elaborated further on that, saying, "When I said no negotiations, I meant no negotiations."

U.S. obligations under international law

One of the major purposes of the United Nations is to prevent unnecessary wars. Therefore, it is not surprising that its charter says: "All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered." Clearly, George Bush's actions with respect to his invasion of Afghanistan fall well outside of that mandate. Maher Osseiran explains the implications of that:

The Bush administration, with premeditation, ignored its international obligations in deference to war. If the Bush administration had supplied the evidence to the world and specifically the Taliban who were requesting such evidence in exchange for bin Laden, the war might not have taken place and bin Laden would very likely be in custody.

Not pursuing that route makes the Afghanistan war an illegal war under the UN Charter and The Geneva Convention; thereby, the majority of the Guantanamo detainees can no longer be classified as enemy combatants, but (rather) victims of war crimes.

That, of course, is what fair and open trials of Bush's detainees are likely to show - which of course is why he can't allow that to happen.

FBI finds no hard evidence of bin Laden's involvement in 9/11

If all that isn't enough (and it should be), several years later the FBI admitted that there is no substantial proof of bin Laden's involvement in 9/11.

The FBI website lists Osama bin Laden as one of its 26 most wanted terrorists. However, it says nothing about his involvement in 9/11. The Muckracker Report, an investigative group, looked into this oddity in an attempt to find the reason for it:

The Muckraker Report contacted Rex Tomb, who serves as Chief of Investigative Publicity with the FBI. Tomb's response? "The reason why 9/11 is not mentioned on Usama Bin Laden's Most Wanted page is because the FBI has no hard evidence connecting Bin Laden to 9/11. He has not been formally indicted and charged in connection with 9/11 because the FBI has no hard evidence connecting Bin Laden to 9/11.

BUSH ADMINISTRATION EFFORTS TO DENY HABEAS CORPUS RIGHTS TO ITS PRISONERS

The following examples show the great extent to which the Bush administration has repeatedly gone to deny its prisoners their rights under international law and our Constitution, and to manipulate the law for their own nefarious ends.

Hamdi v. Rumsfeld

Yasir Esam Hamdi was captured by the Northern Alliance in November 2001 and turned over to the U.S. military in Afghanistan (probably for a large bounty), then sent to Guantanamo Bay as an "enemy combatant" and a suspected terrorist. After the U.S. military discovered that Hamdi was a U.S. citizen (having been born in Louisiana), he was transferred to a U.S. Navy brig in Norfolk, Virginia, still classified as an "enemy combatant", where he remained, in isolation, for the next two and a half years. His father claimed that he was a humanitarian relief worker, not a terrorist.

Several criminal defense attorneys, concerned about the trashing of our Constitution by the Bush administration, filed suit on Hamdi's behalf. After working its way through lower courts, the U.S. Supreme Court ruled on the Hamdi v. Rumsfeld case on June 28, 2004. Though the Bush administration tried to spin the decision as a victory for them, eight of the nine justices agreed that the Executive Branch does not have the right to indefinitely hold a U.S. citizen without basic due process protections. Constitutional lawyer Cass Sunstein summarizes the main finding in his book, "Radicals in Robes", by noting that the court:

said that an enemy combatant must be supplied with notice of the factual basis for his classification and a fair opportunity to rebut the government's factual assertions before a neutral decision maker. The plurality did not deny the possibility that the constitutionality could be met by a military tribunal.

Explaining the decision, Justice O'Connor, writing for the majority, said that "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the nation's citizens."

What this meant was that now the Bush administration had to either provide Hamdi with access to a lawyer and some sort of hearing on his case or else release him. Faced with that choice, three months later it decided to release him back to Saudi Arabia.

Deliah Lithwick comments on the absurdity of the situation:

So the Bush administration's decision to release Hamdi is stunning, given that only months ago he was so dangerous that the government insisted in front of the U.S. Supreme Court and the world that he could reasonably be locked up for all time, without a trial or criminal charges.

He was slammed into solitary on some flimsy assertions contained in what's known as the two-page "Mobbs Declaration," swearing that Hamdi was an enemy combatant, because, according to his captors from the Northern Alliance, he was "affiliated with a Taliban military unit." Any other American suspect, including serial killers and Timothy McVeigh, would have been given an opportunity to dispute that bare claim; to tell his side of the story � which, according to Hamdi's father, was that Hamdi was in Afghanistan for humanitarian reasons. But we never heard that story and we never will. Yaser Esam Hamdi was evidently too dangerous even to set foot in a courtroom.

Rumsfeld v. Padilla

On May 8, 2002, Jose Padilla, a U.S. citizen, was taken into custody by the FDA and locked up as a "material witness." On June 10, four days after Colleen Rowley testified to Congress about the failure of the FBI to respond to her pre-9-11 warnings of an impending attack, Attorney General John Ashcroft made an announcement to the nation about Padilla. Referring to him as "a known terrorist" who had been plotting to explode a radioactive bomb in the United States, Ashcroft announced that the FBI foiled the plot by capturing Padilla. The previous day, George Bush had classified Padilla as an "enemy combatant" and had him sent to a Navy brig in South Carolina, where he remained for three and a half years and was repeatedly tortured.

As with the Hamdi case, lawyers concerned about the abrogation of Padilla's Constitutional rights took up his case. On September 9, 2005, the 4th Circuit Court of Appeals ruled that Padilla's detention without charge was legal. The author of that ruling was J. Michael Luttig, who was considered to be a potential Bush Supreme Court nominee. Padilla's lawyers then appealed to the U.S. Supreme Court, but before the Supreme Court made a decision on whether or not to take the case the Bush administration made the case moot by rescinding Padilla's "enemy combatant" status and agreeing to prosecute him in a civilian court. But the charges had nothing to do with the original allegations about plots to explode a "dirty bomb" on U.S. soil. Rather the new charges were "providing, and conspiring to provide, material support to terrorists, and conspiring to murder individuals who are overseas."

Luttig, the 4th Circuit Court judge who had made the prior ruling, was incensed at this about face by the Bush administration. Charlie Savage, in his book, "Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy", describes Luttig's reaction:

Luttig - one of the most conservative and executive power-friendly judges on the federal bench - accused the Bush-Cheney administration of manipulating the judicial process to make sure that the Supreme Court would have no opportunity to evaluate the precedent that Luttig himself had just written. The Padilla indictment, he said, raised serious questions about the credibility of the government's statements on which the judge had relied when crafting that precedent, and "left the impression that Padilla may have been held for all these years, even if justifiably, by mistake."

Hamden v. Rumsfeld

Salim Ahmed Hamdan was captured in Afghanistan in November 2001 and brought to Guantanamo as an "enemy combatant". He was the personal driver of Osama bin Laden, but he claimed not to be a terrorist or even a member of al Qaeda.

In November 2004 a federal district court ruled, in Hamdan v. Rumsfeld, that the Bush administration's military commission trials violated the Geneva Conventions. But that decision was overturned on July 15, 2005, by the D.C. Circuit Court, in a 2-1 decision ruling that the Geneva Conventions did not apply to war time detainees suspected of terrorism.

John Roberts cast the deciding vote in that decision, just 5 days before he was nominated as Chief Justice to the U.S. Supreme Court by George Bush. Furthermore, it later emerged during Roberts' Senate confirmation hearings that Roberts had: met with Attorney General Alberto Gonzalez 6 days prior to hearing oral arguments in the Hamdan case; in the midst of deciding the case, met secretly with Dick Cheney, Scooter Libby, Andy Card, Harriet Miers and Gonzalez, and; met with Bush himself on July 15, the same day that the court handed down its decision.

In the end, the ridiculous D.C. Circuit Court decision was reversed by the U.S. Supreme Court by a 5-3 decision. Roberts, though Chief Justice of the USSC by that time, had to recuse himself because the Court was ruling on his own previous decision. Two of the USSC justices who voted in the minority on the Hamdan decision (Scalia and Thomas) were two of the same scumbags who had voted in 2000 to hand Bush the Presidency by stopping the vote counting in Florida.

In the Hamdan v. Rumsfeld USSC decision, Justice Stevens, speaking for the majority, explained that the petitioner Hamdan was "entitled to the full protection of the Geneva Convention", and that the "military commission convened to try him was established in violation of both the Universal Code of Military Justice and Common Article 3 of the Third Geneva Convention". Justice Kennedy further elaborated on the Geneva Convention that the USSC determined the Bush administration to have violated:

The provision is part of a treaty the United States has ratified and thus accepted as binding law - moreover, violations of Common Article 3 are considered "war crimes," punishable as federal offenses.

The Military Commissions Act and its overturn by the U.S. Supreme Court

Consequently, the Bush administration pushed through Congress the Military Commissions Act, in an attempt to ensure that detainee trials remained secret. However, on June 12, 2008, the USSC determined that this law too was not Constitutional, primarily because the Act was not sufficient to restore habeas corpus:

Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to separation of powers. . . .

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system, they are reconciled within the framework of law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, part of that law.

CONCLUSIONS

The vast majority of George Bush's "War on Terror" detainees are never charged with or tried for a crime. On the rare occasions when they are charged with a crime, the American people are afforded the opportunity to learn, if they care to, what George Bush's "War on Terror" is really about, and to what extent he will go to manipulate our judicial system for his own political purposes: In the case of Hamdi we find, after holding him in isolation for two and a half years, that George Bush would rather set him free than give him a hearing to present his case, as demanded by our Supreme Court; In the case of Padilla we find, when faced with the possibility of an adverse ruling from our Supreme Court, that Bush would rather drop his "enemy combatant" status and try him on vague charges rather than on the spectacular charges (plot to explode a "dirty bomb" on U.S. soil) that he originally used to scare the American people with, and; In the case of Hamdan, Bush found it necessary for he and his administration to secretly and repeatedly meet with the justice who was trying the case while simultaneously dangling before him the possibility of being nominated as Chief Justice to the U.S. Supreme Court - assuming that he ruled correctly, of course.

All of this because an open and fair trial of any one of George Bush's so-called "illegal enemy combatants" could expose his "War on Terror" for the fraud that it is.

What does all this say about our war in Afghanistan? In the first place, the war has been illegal from start to finish, and those who perpetrated it should be subject to criminal charges. But even if we had a decent reason for our original involvement, what are we accomplishing by our continuing presence there? This is what the editors of The Nation have to say about escalating our war in Afghanistan:

The United States and its NATO allies are losing the war in Afghanistan not because we have had too few military forces but because our military presence, along with the corruption of the Hamid Karzai government, has gradually turned the Afghan population against us, swelling the ranks of Taliban recruits. American airstrikes have repeatedly killed innocent civilians. Sending thousands of additional troops will not secure a democratic and stable Afghanistan, because the country is not only deeply divided but also fiercely resistant to outside forces. Indeed, more troops may only engender more anti-American resistance and cause groups in neighboring Pakistan to step up their support for the Taliban in order to stop what they see as a US effort to advance US and Indian interests in the region.

Second, securing Afghanistan is not necessary to US security and may actually undermine our goal of defeating Al Qaeda. American safety thus depends not on eliminating faraway safe havens for Al Qaeda but on common-sense counterterrorist and national security measures - extensive intelligence cooperation, expert police work, effective border control and the occasional surgical use of special forces.