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Obama's Lawless Authorization of Military Commissions Injustice

by Stephen Lendman Thursday, Mar. 10, 2011 at 1:33 AM


Obama's Lawless Authorization of Military Commissions Injustice - by Stephen Lendman

On March 7, New York Times writers Scott Shane and Mark Landler headlined, "Obama Clears Way for Guantanamo Trials," saying:

By Executive Order (EO), Obama authorized their use "with revamped procedures but implicitly admitt(ed) the failure of his pledge to close the prison camp."

Since taking office, Obama broke every important pledge he made with regard to:

-- war and peace;

-- fixing the economy;

-- helping beleaguered homeowners;

-- supporting organized labor;

-- helping working Americans, especially those most vulnerable, disadvantaged, and harmed by economic crisis;

-- governing lawfully;

-- ending illegal domestic spying;

-- environmental protection;

-- a public option included in health care reform;

-- ending Wall Street shenanigans, corruption, and market manipulation;

-- protecting whistleblowers, human rights, civil liberties, and public education;

-- Net Neutrality;

-- food safety;

-- "ensur(ing) that the hopes and concerns of average Americans speak louder in Washington than the hallway whispers of high-priced lobbyists" - the same ones who own him; and

-- ending torture, closing Guantanamo, and assuring due process and judicial fairness in civil courts for everyone brought to trial based on hard, not secret or bogus, evidence.

Instead, Obama's March 7 EO authorized indefinite detentions and military commissions in violation of the Constitution's Fifth Amendment, stating:

"No person....shall be deprived of life, liberty, or property, without due process of law...."

Indefinite detentions and military commissions are lawless, indefensible, unjustifiable practices that democratic civil societies don't tolerate. They're reminiscent of Nazi Germany and Stalinist show trials, assuring guilt by accusation.

The full text of Obama's EO can be accessed through the following link:

A previous article explained the following:

Section 1031 of the FY 2010 Defense Authorization Act contained the 2009 Military Commissions Act (MCA), listing changes that include discarding the phrase "unlawful enemy combatant" for "unprivileged enemy belligerent." Language changed but not intent or lawlessness. Obama embraces the same Bush agenda, including keeping Guantanamo open after promising to close it, and allowing torture there and abroad.

MCA grants sweeping police state powers, including that "no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause for action whatsoever....relating to the prosecution, trial, or judgment of a military commission (including) challenges to the lawfulness of (its) procedures...."

MCA scraped habeas protection (dating back to the 1215 Magna Carta) for domestic and foreign state enemies, citizens and non-citizens alike, and says "Any person is punishable... who....aids, abets, counsels, commands, or procures," and in so doing helps a foreign enemy, provide "material support" to alleged terrorist groups, engages in spying, or commits other offenses previously handled in civil courts. No evidence is needed. Those charged are guilty by accusation. The hangman or a firing squad awaits. Appeals aren't allowed.

Other key provisions include:

-- legalizing torture against anyone, letting the president decide what procedures can be used on his own authority;

-- denying detainees international law protection, letting the executive interpret or ignore it;

-- letting the president convene military commissions at his discretion to try anyone he designates an "unprivileged enemy belligerent," detaining them indefinitely in secret with or without evidence;

--denying speedy trials or any at all;

-- letting torture coerced confessions be used as evidence in trial proceedings, despite US and international law prohibiting cruel and inhuman treatment at all times, under all conditions, with no allowed exceptions; also, the US Supreme Court's February 1936 Brown v. Mississippi ruling stated:

"The rack and torture chamber may not substitute for the witness stand," and an earlier November 1926 Fisher v. State decision called coerced confessions "the chief iniquity, the crowning infamy (and) the curse of all countries" using them.

-- letting hearsay and secret evidence be used; and

-- denying due process and judicial fairness, destroying human dignity, mocking the rule of law, and sanctioning kangaroo court injustice for anyone the executive targets with or without evidence.

In other words, the rule of law is null and void. Whatever the president says goes. No one any longer is safe, including US citizens. Police state America leaves everyone potentially vulnerable, even those most law-abiding.

Currently, 172 detainees are at Guantanamo. Many remain uncharged and are held indefinitely. Others will be lawlessly tried. Obama contemptuously claimed:

Indefinite detentions and military commissions will "broaden our ability to bring terrorists to justice, provide oversight for our actions and ensure the humane treatment of the detainees."

Attorney General Holder added:

"The executive order....strengthens the legal framework under which we will continue to detain those individuals who are at war with our country and who pose a significant threat to the security of the United States."

No matter that virtually everyone at Guantanamo is innocent. Yet they've been lawless detained extrajudicially, and subjected to unspeakable tortures and ill-treatment, most, in fact, for years.

Human Rights organizations condemned Obama's EO. The Center for Constitutional Rights (CCR) said the following:

"Today's executive order....codif(ies the lawless) status quo. The creation of a review process that will take up to a year (then repeated quadrennially) is a tacit acknowledgment that the Obama administration intends to leave Guantanamo as a scheme for unlawful detention without charge and trial for future presidents to clean up," though who'll be courageous enough to try.

Many thought Obama would. Instead, he continued the same lawless Bush practices, adding more of his own. Overall, his record shows contempt for lawful justice. As a result, "Guantanamo and the military tribunal system are no longer an inheritance from the Bush administration - they will be President Obama's (permanent) legacy."

The ACLU said the following:

Flaunting international law, due process, and judicial fairness, "the Obama administration....institutionaize(d) unlawful indefinite detention (and) revive(d) the illegitimate Guantanamo military commissions....The detention of Guantanamo detainees for nine years without charge or trial is a stain on America's reputation that should be ended immediately, not given a stamp of approval."

Military commissions under past or revamped rules assure guilt by accusation. "The only way to restore the rule of law is to put an end to indefinite detention at Guantanamo and the broken commissions system..." Obama's EO showed contempt for lawful justice and fairness.

Human Rights Watch (HRW) tried having it both ways, saying Obama's EO "provides an additional layer of review not previously available," implying improvement when, in fact, there's none - just cover for continued lawlessness.

At the same time, HRW added that "(a)uthorizing indefinite detention(s) would have created a real danger of a permanent regime of indefinite detention for anyone the government decides is dangerous. But by limiting (the number), President Obama has committed his administration to apply the practice only to the mishandled cases left by his predecessor."

False and outrageous! Using weasel words, Obama continued the same Bush lawless practices against anyone claimed to threaten national security, including US citizens, many rotting in federal prisons unjustly.

Though HRW "strongly opposes the use of military commission(s)," its March 7 statement fell far short of unequivocally and forcefully condemning Obama's continuation of unjustifiable lawlessness.

In fact, HRW's support for the oppressed was always dubious at best, trying to have it both ways by endorsing human rights while backing US imperial lawlessness - as do its funders that include the Ford and Rockefeller Foundations, the (George) Soros Foundations, the Carnegie Corporation of New York, Time Warner and others.

Human Rights First (HRF) called a periodic review process "a step in the right direction." In fact, it's shameless cover to continue lawless Bush era practices. However, HRF condemned military commissions and called indefinite detentions "a serious threat to fundamental rights and is no substitute for criminal justice."

In contrast, Amnesty International (AI) unequivocally denounced Obama's "new policies," saying:

"With the stoke of a pen, President Obama extinguished any lingering hope that his administration would return the United States to the rule of law by referring detainee cases from Guantanamo Bay to federal courts rather than the widely discredited military commissions."

His March 7 EO "completed the embrace of Bush era counterterrorism policy. For the new Periodic Review Boards (PRBs) are little more than a cosmetic rebranding of the much derided Combatant Status Review Tribunals that operated in Guantanamo during the Bush administration....(Obama's) 'new' policy....amounts to little more than an elaborate shell game."

In fact, it's worse by claiming responsible change as cover for continuity, one of many reasons why Obama exceeds the worst of George Bush at home and abroad, yet too few people know it. In fact, he:

-- escalated war;

-- extended it to Pakistan;

-- wages it in Somalia;

-- backs it in Yemen;

-- incites it in Libya;

-- supports global insurgencies;

-- reinvented the "Cold War;"

-- authorized special forces death squads and extrajudicial assassinations;

-- militarized Latin America and Haiti;

-- bankrolls lawless Israeli practices;

-- endorses some of the world's worst despots; and

-- governs lawlessly at home by:

-- flaunting international and constitutional law;

-- endorsing police state harshness;

-- conspiring with criminal bankers;

-- wrecking the economy;

-- looting the federal treasury;

-- forcing millions into poverty, homelessness and no futures;

-- destroying the Gulf of Mexico;

-- backing wealth and power over beneficial social change, and

-- furthering an agenda heading America for tyranny and ruin.

Detaining innocent men indefinitely and consigning others to military commissions further unmasks a rogue administration pretending to be democratic. Unfortunately, this one has over 22 months left plus another four years if reelected. Global millions tremble at the prospect, including growing numbers at home with more than enough cause to react proactively for change.

Stephen Lendman lives in Chicago and can be reached at Also visit his blog site at and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.

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