Sunday, August 3, 2008

Why is Habeas Corpus Such a Threat to those in Power?

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By Maher Osseiran

Why is the Supreme Court's decision to uphold habeas corpus rights for the Guantanamo detainees so scary that Senator Lindsey Graham, with the support of McCain, will "explore the possibility, if necessary, of a constitutional amendment to blunt the effect of this decision"?

What is so fundamentally wrong with the Supreme Court's decision, whose members are conservative or Bush appointees, to warrant amending our constitution? Have Senators Graham and McCain lost their minds?

I just finished reading a lengthy "friend-of-the-court" brief to the Supreme Court in support of petitioner Boumediene v. responder Bush, et al., a case resulting in a decision that reinstate habeas corpus rights, not just for the detainees, but for all Americans.

As a brief to the Supreme Court, the argument and the conclusion were primarily based in constitutional law and precedent.

A similar brief to a habeas corpus court that would review the legality of detaining the Guantanamo prisoners would undoubtedly take a different form or approach

what the writ of habeas corpus has always ensured: that an independent court can inquire into the legal and factual bases for the Executive's assertion of its power to imprison. This guarantee has always included a meaningful judicial evaluation of the law and facts that underlie the Executive's asserted basis to detain.

Other than the meaningful judicial evaluation of the law and facts, a non-military tribunal would make it easier for a detainee to produce exculpatory evidence, evidence that would exonerate him or her; actually, anyone can produce such evidence and anyone can inject it into the court proceedings simply by providing it to any party.

Such exculpatory evidence is abundant and has been in the hands of U.S. Attorney Patrick Fitzgerald, governors, members of congress such as Conyers and Graham, the judiciary committees to the House and Senate, and a variety of law authorities that have jurisdiction as early as 2005; I know that for fact since I placed it there but no investigations resulted.

In February of 2007, Dr. James Zogby of the Arab American Institute, after familiarizing himself with my work, found it imperative to contact Conyers directly and received assurances, conveyed to me by email, that an investigation would proceed in due course; Conyers is still missing in inaction.

The evidence was uncovered when I decided to authenticate the videotape released by the Pentagon on Dec. 13, 2001, a videotape in which bin Laden was confessing to 9/11. My suspicions about the tape quickly materialized but it took close to a year to distill the information in to a format that would stand in a court of law.

The authentication work, the only work of its kind put forth in the public domain, unveiled the most heinous crime ever committed by a sitting president whose victims not only include the detainees in Guantanamo except for a handful, but the untold number of dead and maimed Afghanis, Iraqis, American citizens and soldiers who have died in this fake "war on terror".

The authentication work revealed that the taping of the bin Laden confession was the result of a sophisticated sting operation run by U.S. intelligence with the help of Saudi intelligence and was taped on September 26, 2001, barely two weeks after 9/11 and ten days before the invasion of Afghanistan.

According to the UN charter, "All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered."

Even though the Bush administration had the evidence that bin Laden was responsible for the 9/11 attacks as early as September 26, 2001, such evidence was only shared with those who were important for the execution of their war, such as NATO and Pakistan, and kept away from those sane entities who were looking for a just and peaceful outcome as the UN Charter dictates.

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 victims of war crimes.

These findings, which were shared with various authorities, were summarized in the "The Crime Behind the Criminal Wars!".

The authentication work also shows that the Bush administration, with premeditation, aided and abetted bin Laden after 9/11 far beyond any aid your average Guantanamo detainee could have ever provided to Al-Qaeda or bin Laden. There are also very strong indications, worthy of serious investigation, that the Bush administration was very aware of the 9/11 operations beforehand and allowed them to happen or even helped in making them happen. This argument was summarized in "Is Bin Laden Responsible for the 9/11 attacks?"

As a consequence of these findings, those handful of detainees who are charged with the more serious crimes, after review and a proper fact finding by a habeas corpus court, would have those charges against them dismissed only to be re-arrested and appropriately charged with less serious offenses; the rest of the detainees would have to be released.

The same court, and the public at large, will reserve the more serious offenses to high-ranking officials in the Bush administration, including the president.

By not acting in 2005 on the information received, Conyers and congress dug themselves a hole that kept getting deeper as time went by. The implications of the findings are very serious and the remedies go beyond those implemented after Water Gate and might prove to be the remedies that would help us reclaim our democracy.

The fundamental and positive change in how our democracy functions is what Senator Lindsey Graham, John McCain, and others in power are afraid of; a fear worthy of a constitutional amendment.

Their fear is genuine because, unlike other evidence in the public discourse of the Bush administration's abuse of power, which the administration and its supporters have been able to duck, this evidence is solid, all in the public domain, the majority of which the administration mistakenly placed there, it cannot be taken back, it cannot be spun, it is intact and most importantly, will remain so.

I am told that proper investigations would start after Bush leaves office. I do think though that no one should be above the law and no criminal should be given special consideration, especially those who hold public office, otherwise we are simply a nation of outlaws.

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