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Today's Stories November 17, 2009 Mike Whitney November 16, 2009 Alan Nasser Jonathan Cook Mark Weisbrot Carol Miller Gary Leupp Harry Clark Ray McGovern Norman Solomon Ron Ridenour Norm Kent Brenda Norrell November 13-15, 2009 Alexander Cockburn Patrick Cockburn Tariq Ali Douglas Lummis Vijay Prashad Carl Ginsburg Manuel García, Jr. Rannie Amiri Mary Lynn Cramer Fred Gardner Dave Lindorff Robert Jensen David Macaray Corporate Crime Reporter Ron Jacobs David Model John V. Walsh Jon Mitchell Stuart Easterling Dan Bacher Franklin Lamb Farzana Versey Charles R. Larson Saul Landau David Yearsley Lorenzo Wolff Poets' Basement
November 12, 2009 Robert Weissman Franklin Spinney Nadia Hijab Afshin Rattansi Paul Craig Roberts Ralph Nader Belén Fernández Allan J. Lichtman Dave Lindorff Jayne Lyn Stahl November 11, 2009 Andrew Cockburn Mike Whitney Rev. Jesse Jackson Jeff Nygaard Stewart J. Lawrence James Ridgeway Eamonn McCann Michael Ortiz Hill Shepherd Bliss Walter Brasch November 10, 2009 Ellen Cantarow Dean Baker Rose Ann DeMoro Ramzy Baroud Peter Lee Dave Lindorff Roberto Rodriguez Winslow T. Wheeler Alan Farago Joseph Grosso November 9, 2009 Patrick Cockburn Linn Washington Carl Ginsburg Jeff Leys John A. Murphy John Halle Bouthaina Shaaban James Ridgeway Dave Lindorff David Macaray Stephen Fleischman Website of the Day November 6-8, 2009 Alexander Cockburn Mark Grueter Paul Craig Roberts Patrick Cockburn Gareth Porter Mike Whitney James Bovard Dean Baker Robert Lawless Saul Landau Jayne Lyn Stahl Stephanie Westbrook M. Shahid Alam Marc Levy Franklin Lamb Ron Jacobs David Ker Thomson John V. Whitbeck Julien Mercille Rannie Amiri John Ross David Michael Green Carl Finamore Farzana Versey Missy Comley Beattie Charles R. Larson David Yearsley Kim Nicolini Poets' Basement November 5, 2009 Pam Martens Vijay Prashad Brian Gallagher Norman Solomon Nadia Hijab Joseph Shansky Andy Thayer Tracy Rosenberg Website of the Day November 4, 2009 Stan Cox Andy Worthington From Gitmo to Palau: Who are the Uighurs? Robert Weissman Susan Galleymore Ralph Nader Michael Leonardi Bitta Mistofi Robert Bryce Martha Rosenberg Dave Lindorff Website of the Day November 3, 2009 Patrick Cockburn Mike Whitney Franklin C. Spinney Laura Carlsen Serge Halimi John Stanton Sophia Weeks Dave Lindorff November 2, 2009 Steven Higgs Ishmael Reed David Macaray Bouthaina Shaaban David Michael Green David Swanson Ellen Brown Adam Federman James McEnteer Stephen Fleischman Website of the Day October 30 - Nov. 1, 2009 Alexander Cockburn Jeffrey St. Clair / Carl Ginsburg Mike Whitney Joe Bageant Gareth Porter Saul Landau Anthony DiMaggio Dave Lindorff Rannie Amiri Niranjan Ramakrishnan Jayne Lyn Stahl Rev. William E. Alberts Alvaro Huerta Martha Rosenberg Binoy Kampmark Norm Kent Charles R. Larson Roth's "The Humbling:" Nothing Like a Novel From an Old Pro Ron Jacobs David Yearsley Lorenzo Wolff Kim Nicolini Poets' Basement Website of the Weekend October 29, 2009 Michael Neumann Mike Whitney Gary Leupp Conn Hallinan Marshall Auerback Laura Flanders Eamonn McCann David Macaray Mark Weisbrot Stephen Soldz Christopher Brauchli Website of the Day October 28, 2009 Moshe Adler Dave Lindorff Frank Joseph Smecker Alexandra Early M. Shahid Alam Vijay Prashad John Ross Franklin Lamb Gregory Travis Susan Galleymore Website of the Day October 27, 2009 Mike Whitney Patrick Cockburn Stewart J. Lawrence Alan Farago Ralph Nader Dave Lindorff Bouthaina Shaaban Brian M. Downing Elections in Afghanistan, the Second Time Around Iain Boal Carl Finamore Jayne Lyn Stahl Website of the Day October 26, 2009 Bill Quigley / Paul Craig Roberts Uri Avnery Mike Whitney Michael Snedeker Shamus Cooke David Michael Green Martha Rosenberg Patrick Bond Binoy Kampmark Website of the Day
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Too Unfair to be Used on Americans--or AnyoneA First Look at the Military Commisions ActBy JOANNE MARINER In late October , President Obama signed the 2010 National Defense Authorization Act, which included a package of changes to the rules governing military commission proceedings. Called the Military Commissions Act of 2009, the new law replaces — and somewhat improves upon — the Bush-era military commissions legislation known as the Military Commissions Act of 2006. In 2006, Obama was one of 34 senators -- 32 Democrats, one independent and one Republican -- who voted against the military commissions law. He called it a “flawed document” that betrayed American values. In what ways does this new legislation, which will be remembered as the Obama system of military commissions, differ from the earlier version? And in what ways does it stick with the Bush-era model? Let’s start by looking at who can be brought before a military commission for trial. Unlawful Enemy Combatant vs. Unprivileged Enemy Belligerent The new law begins by tweaking the definition of individuals eligible for trial before military commissions -- most obviously by scrapping the phrase "unlawful enemy combatant," and replacing it with "unprivileged enemy belligerent." This is a cosmetic change, not a real improvement, which mirrors the administration's decision to drop the enemy combatant formula in habeas litigation at Guantanamo Bay. In addition, the new definition sets out three separate grounds on which a person might be deemed an "unprivileged enemy belligerent," which vary somewhat from the grounds for eligibility included in the previous definition. The third ground, now separate from the previous two, is membership in Al Qaeda, whether or not the member has engaged in or supported hostilities against the US. (Under the previous definition, membership in "Al Qaeda, the Taliban, or associated forces" was relevant to the determination of whether a person had engaged in or supported hostilities, but was not itself a distinct ground for eligibility.) Notably, the Taliban is no longer specifically named in the new definition. This suggests, perhaps, that the administration is acknowledging a meaningful difference between the Taliban and Al Qaeda, and wants to leave open, at least for the future, the possibility that the Taliban is not the enemy. Purposeful and Material Support What overshadows all of these differences is, however, a key similarity with the Bush-era definition. Just as, in the Guantanamo habeas litigation, the Obama administration has adopted the Bush-era position of claiming that persons who provide support to hostilities can be treated just like persons who engaged in hostilities, the new law's "unprivileged enemy belligerent" definition takes the same tack. While in the Guantanamo litigation, the Obama administration has taken a slightly less aggressive approach to support than the Bush administration did (stating that the support has to be "substantial"), this new law uses the same language regarding support as the previous law did. The test, in both laws, is whether a person has "purposefully and materially supported hostilities against the United States." (This is the law's second ground for eligibility for trial before a military commission; the first ground is that the person actually engaged in hostilities against the U.S. or its allies.) The claim that support alone is functionally equivalent to participation in hostilities has been rejected by several federal judges hearing the Guantanamo litigation, including Judge Bates, Judge Lamberth and Judge Kollar-Kotelly. As these judges have recognized, there is no basis in the laws of war for treating people who merely support hostilities as belligerents. So in this sense, the law is clearly overbroad. In another important way, however, the new law does limit the class of people subject to military commission trials: It entirely eliminates section 948a(1)(ii) of the prior definition. That provision had said that any person who had been deemed an unlawful enemy combatant by a Combatant Status Review Tribunal – the summary hearings held at Guantanamo – could be subject to trial before a military commission. Devoid of any substantive standard, the provision was an invitation to abuse. The Overbroad "War on Terror" (or War on Al Qaeda, the Taliban and Associated Groups) While the statutory language is important, the more important problem lies in how these definitions have been interpreted. The "war on terror," although the new administration now specifies that it is a war against Al Qaeda, the Taliban, and associated groups, has been consistently understood, by both administrations, to be far broader than any traditional armed conflict. People who have committed terrorist acts outside of any war zone, who were in the past prosecuted as criminals, are now labeled combatants or belligerents, and brought to trial in military proceedings. Notably, the new legislation does not attempt to limit the scope of the commission's jurisdiction to traditional notions of armed conflict. Indeed, like the previous legislation, it seems to take an extremely broad view of the "hostilities" with Al Qaeda, suggesting that the armed conflict may have begun even before the September 11, 2001 attacks. In its section 948d, covering the commissions' jurisdiction, the law specifically states that it covers offenses committed "before, on or after September 11, 2001." (It's worth noting, moreover, that some detainees have been charged in military commissions with offenses dating back to 1996.) Aliens and Children The law is also overbroad in that it fails to exempt from its jurisdiction the class of children – or, more specifically, the class of those people who allegedly committed the relevant offenses when they were under the age of 18. A concern for such cases is not hypothetical. The government has already brought two prosecutions before military commissions involving defendants who were children at the time of the alleged offense. Because international law requires that the trial of any person who was younger than 18 at the time of the crime be conducted in a manner that takes account of the person's age and of the desirability of promoting rehabilitation, the use of military commissions in such cases is inappropriate. Finally, there is one area in which the new law's scope is not too broad, but rather too limited: It only covers aliens. Why is this a problem? By singling out only aliens to be subject to the jurisdiction of military commissions, the law arbitrarily discriminates on the basis of citizenship, violating U.S. international human rights obligations and contravening the Equal Protection Clause of the Constitution. Equally important, barring U.S. citizens from being tried in commissions may have saved the law from critical public scrutiny. Were citizens – voters – to face possible trial before commissions, the law's flaws might have been subject to greater debate, and the democratic process might have worked. But the fact that the commissions only cover aliens is telling. And if the truth is that the commissions are too unfair to be used on U.S. citizens, they're really too unfair to be used on anyone. Joanne Mariner is a human rights lawyer living in New York and Paris.
Inside the New Print Edition of Our Subscriber-Only Newsletter! Obama and Black America Ten months into Obama-time, the plight of black Americans is terrible. Yet overwhelmingly they rally behind the president. In a powerful report from the Deep South Kevin Alexander Gray asks the question: what should the black political agenda be? Mark Rudd counterposes “organizing” with “activism” and describes what it will take to build a movement. H. Bruce Franklin gives a chronology of the march into Afghanistan. Get your new edition today by subscribing online or calling 1-800-840-3683 Contributions to CounterPunch are tax-deductible. Click here to make a donation. If you find our site useful please: Subscribe Now! CounterPunch books and t-shirts make great presents.Order CounterPunch By Email For Only $35 a Year !
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Now Available from CounterPunch Books! Yellowstone Drift:
"Powerful and shocking ..
Waiting for
Lightning
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