U.S. Gov't Trumped-Up Crimes to Support Military Commission Conviction Up for Appeal

The following press release was sent out by Center for Constitutional Rights, and includes a powerful statement regarding the legal machinations behind the military commissions tribunals brought back to life by the Obama administration.

Government Calls Native American Resistance of 1800s “Much Like Modern-Day al Qaeda”

March 16, 2011, New York – Today, the Center for Constitutional Rights (CCR) issued the following statement concerning the hearing before the United States Court of Military Commission Review in United States v. Al Bahlul, scheduled for March 17, 2011, at 10:00 a.m. in Washington, D.C.:

[Ali] Al Bahlul is the first appeal of a Guantánamo military commission conviction to proceed before the Court of Military Commission Review.  It is notable because it involves a conviction and life sentence in search of supporting war crimes offenses.

Mr. Bahlul has been imprisoned at Guantánamo for nearly a decade.  After two presidential administrations, one Supreme Court decision, two acts of Congress, three sets of charges, a trial that concluded more than two years ago, appellate proceedings that began more than a year ago, a reshuffling of the Court of Military Commission Review and a decision to hear the appeal en banc, the government has all but conceded that the offenses for which Mr. Bahlul was originally convicted before a military commission – conspiracy, solicitation and providing material support for terrorism – were not established law-of-war offenses under U.S. or international law at the time they were allegedly committed.

The court appears to recognize this as well, because on January 25, 2011, it issued certified questions on its own and ordered the parties to address whether Mr. Bahlul’s conviction can nonetheless be supported under a “joint criminal enterprise” theory of liability, or on the grounds that he “aided the enemy,” despite the fact that he owed no duty or allegiance to the United States. These questions are the subject of tomorrow’s hearing.

The court’s action is highly irregular because the government expressly withdrew reliance on a “joint criminal enterprise” theory of liability and never argued a charge of “aiding the enemy” at Mr. Bahlul’s commission trial.  Common sense also dictates that attempting to justify a life sentence for an alleged “enemy” who owes no duty or allegiance to the United States because he “aided the enemy” is legal bootstrapping.

Military commission judges, no less than other military officers, are sworn to uphold and defend the Constitution, not to devise creative legal theories never argued by the parties at trial in order to uphold law-of-war convictions. Although the government may have badly botched the prosecution of Mr. Bahlul, the court should reject the invitation in the government’s response to the certified questions to search out some legal theory – any legal theory – to support his conviction. Nothing less is demanded of a regularly constituted court.

The court should also reject the government’s notable reliance on the “Seminole Wars” of the 1800s, a genocide that led to the Trail of Tears. The government’s characterization of Native American resistance to the United States as “much like modern-day al Qaeda” is not only factually wrong but overtly racist and cannot present any legitimate legal basis to uphold Mr. Bahlul’s conviction.

Sadly, however, the removal and attempted eradication of Native Americans is not unlike the treatment of detainees at Guantánamo in that each stands alongside slavery and Jim Crow, the targeting of immigrants, and the internment of Japanese Americans, among other examples, as a stark reminder of how in times of fear and xenophobia our nation has brutalized and demonized human beings as “others” who are unworthy of the rights most Americans take for granted in order to deny them equal protection of the law.

Guantánamo was designed to be a prison where no laws applied. Today, it remains a prison reserved exclusively for Arab and Muslim men, many of whom the president recently announced would be subjected to military commissions, an ad hoc system intended to manufacture convictions unattainable in federal court. This secondary system of justice should be abandoned. Mr. Al Bahlul’s conviction should be overturned, and the prison, which administration officials continue to recognize threatens and demeans the United States, must be closed now.

The Center for Constitutional Rights has led the legal battle over Guantanamo for the last nine years – sending the first ever habeas attorney to the base and sending the first attorney to meet with an individual transferred from CIA “ghost detention” to Guantanamo. CCR has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country to represent the men at Guantanamo, ensuring that nearly all have the option of legal representation. In addition, CCR has been working to resettle the approximately 30 men who remain at Guantánamo because they cannot return to their country of origin for fear of persecution and torture.

Andy Worthington wrote a summary of Al Bahlul's case last September:

ISN 039 Al Bahlul, Ali Hamza (Yemen)

Widely described as Osama bin Laden’s “press secretary,” al-Bahlul produced a propaganda video for al-Qaeda and was first put forward for trial by Military Commission in February 2004. He was formally charged in June 2004. At a pre-trial hearing in August 2004, he declared, “I am an al-Qaeda member,” and asked the judge, “Am I allowed to represent myself?” and at another hearing in January 2006, he decided to withdraw from the proceedings, waving a sign that read “boycott” in Arabic, He was charged for a second time in February 2008, after the first version of the Commissions was ruled illegal by the US Supreme Court in June 2006, and in May 2008 he again decided to boycott pre-trial hearings, explaining, “I am responsible for my own actions in this world and the afterworld. I don’t consider it to be a crime.” His trial took place in October 2008, and he was convicted of conspiracy, solicitation of murder, and providing material support to terrorism after a one-sided trial in which he refused to mount a defense. He received a life sentence, which he is serving in solitary confinement in Guantánamo, away from all the other prisoners, but his lawyers are currently appealing the sentence, on the basis that providing material support to terrorism is “a fabricated war crime that was not traditionally triable in a military commission as of the time of Mr. al-Bahlul’s affiliation with al-Qaeda” (as his former military defense attorney, Lt. Col. David Frakt, explained), and also on the basis that his trial was unfair because he was denied the right to represent himself.

Sign Petition to Free Leonard Peltier

1851treaty.com is sponsoring a petition asking incoming president Barack Obama to pardon long-time political prisoner, Native American activist Leonard Peltier. (H/T Winter Rabbit)

Another petition is online asking for clemency for Mr. Peltier, who recently was transferred to yet another prison facility, farther away from his ancestral homeland.

From the second petition linked above:

Mr. Peltier was convicted for the June 26, 1975 murders of 2 FBI agents on the Pine Ridge Indian Reservation. There were 4 defendants originally charged before the Grand Jury. Two of the defendants were tried before the court and found Not Guilty by reason of self-defense.

Charges were dropped on the 3rd defendant. Mr. Peltier was tried after a change of venue to North Dakota. In this trial Mr. Peltier wasn't able to put up a self-defense argument. Any evidence that could have proven Mr. Palters' innocence was not allowed in his trial or if it was allowed it was not allowed in front of the jury. Witness testimony wildly diverged between Grand Jury testimony and trial testimony; further, several of the witnesses recanted their testimony after the trial, claiming perjured testimony because of threats from the FBI. Despite testimony, prosecuting attorneys have stated on several occasions that they don't know who shot the agents that day....

A few FBI officials and/or agents have launched campaigns to publicly proclaim the guilt of Mr. Peltier. Thus propitiating the original cover up through dissemination of misinformation in editorials, web sites and full page newspaper ads in what is seen as an effort to discredit the common sense and creditability of many national leaders and their organizations. These leaders have studied the case in-depth for over twenty-three years since the reign of terror on the Pine Ridge reservation and areas supposedly under the protection of this county.

Mr. President and elected officials of all people, we ask that you no longer ignore the voices of the 10's of millions of signatures and letters of the last twenty three years, and the results of the most recent polls in favor of his immediate release.

And from a recent letter from Mr. Peltier to his supporters:

They have at times called me a thug and a cold blooded murderer, but I know historically they called Geronimo a cold blooded murderer and savage, they called Crazy Horse a cold blooded murderer and savage, they called Captain Jack of the Modocs a cold blooded murderer and savage, they called Black Hawk of the Sauk a cold blooded murderer and savage, they called Tecumseh a cold blooded murderer and savage, they called Sitting Bull a cold blooded murderer and savage - and the list goes on and on.

The one thing all these men have in common is they were all imprisoned or killed by this government; they were all patriots in their own land, trying to stop the illegal immoral taking of their people's land and resources. They didn't call the men who murdered our people at Wounded Knee thugs and savages, they didn't call the snipers who shot Frank Clearwater at Wounded Knee in 73 a murderer, they didn't call the ones who shot Buddy Lamont a cold blooded murderer, they didn't call the ones who shot Joe Stuntz a cold blooded murderer, they didn't call the sniper who shot that young woman and baby in 1992 at Ruby Ridge Idaho in a cold blooded murder, they didn't call the ones who burned the men, women and children to death at Waco, Texas in 1993 in cold blooded murderers. I assume cold blooded means you have no sense of right or wrong or something of that nature when you take a life. And if that is so, then this country is full of cold blooded murderers and thugs because by proxy they have killed thousands of innocent men women and children in Iraq and most recently in Afghanistan, I've seen them on TV. I've seen the pictures of children's bodies piled on top of each other. And right now the US funds Israel's war machine as they kill hundreds of innocent men, women and children....

If I sound angry or hurt or disappointed or a multitude of other emotions you would probably be correct. I remember once upon a time, in my naïve belief that sooner or later I would be free and justice would be served. In my case after 33 years of illegal imprisonment justice will never be served, it will be up to the Creator to bring about a reaction that may in some future time balance the scales. But for me and the others like me, whether they are among other prisoners in the US prison system or dead in the streets of Iraq, Afghanistan, Gaza Strip or South America or some reservation road or some ghetto street, justice is not being served at this time.

If there is anything further I could say that would affect you in some way it would be to encourage you to take a few minutes out of your life and quietly sit and reflect and maybe just maybe you can hear the mothers crying for their lost children and the men crying for their lost wives and daughters and the grandfathers crying for their lost sons and I could say more but perhaps you may have grown tired of my commentary. Thank you for your time, thank you for reading this, and don't let evil triumph. Say something.

McCain and the Cross of Coal: GOP Front-Runner Tied to Theft of Navajo Lands

According to an article over at the American Computer Science Organization:

A public research website: http://www.cain2008.org has brought together diverse historical elements of factual proof that Senator John McCain's was the key "point man" introducing, enacting and enforcing law that removed Dineh-Navajo Families from their reservation on the Black Mesa in Arizona. The McCain revised law relocated them to Church's Hill, Nevada (a Nuclear Waste Superfund Site, called "the New Lands" in PL 93-531). The Dineh-Navajo, a deeply spiritual and peaceful people, engaged in only peaceful resistance to being moved off lands they'd owned since 1500 A.D. Nonetheless, the Public Press and UN depicted brutalization, rights deprivation and forcible relocation.

The cain2008 website quotes from the UN report directly:

"The Black Mesa region in Arizona, USA is home to the indigenous communities of the Dineh (Navajo) and Hopi peoples. This region also contains major deposits of coal which are being extracted by North America's largest strip mining operation. The coal mines have had a major impact on families in the region. Local water sources have been poisoned, resulting in the death of livestock. Homes near the mines suffer from blasting damage. The coal dust is pervasive, as well as smoke from frequent fires in the stockpiles. Not coincidentally, the people in the area have an unusually high incidence of kidney and respiratory disease."

"The Dineh (otherwise known as Navajo) were stripped of all land title and forced to relocate. Their land was turned over to the coal companies without making any provisions to protect the burial or sacred sites that would be destroyed by the mines. People whose lives were based in their deep spiritual and life-giving relationship with the land were relocated into cities, often without compensation, forbidden to return to the land that their families had occupied for generations. People became homeless with significant increases in alcoholism, suicide, family break up, emotional abuse and death."

-- Marsha Monestersky for the UN Commission on Human Rights and Women Enacting Change at the UN

Will we hear more about the plight of the Sovereign Dineh Nation (SDN) in the mainstream media, or from the Democratic candidates? I won't hold my breath, as Native American issues don't even seem to register on their radar. That was made more than clear when Democratic President Bill Clinton left American Indian Movement [AIM] leader Leonard Peltier to rot in prison on frame-up murder charges, after already serving 25 years. Oh, and this was despite pleas for executive clemency for Peltier from Coretta Scott King, Archbishop Desmond Tutu, and the United Nations High Commissioner for Humans Rights, among others.

The Minnesota History Society briefly describes AIM's history:

AIM's leaders spoke out against high unemployment, slum housing, and racist treatment, fought for treaty rights and the reclamation of tribal land, and advocated on behalf of urban Indians whose situation bred illness and poverty. They opened the K-12 Heart of the Earth Survival School in 1971, and in 1972, mounted the Trail of Broken Treaties march on Washington, D.C., where they took over the Bureau of Indian Affairs (BIA), in protest of its policies, and with demands for their reform.

The revolutionary fervor of AIM's leaders drew the attention of the FBI and the CIA, who then set out to crush the movement.

Leonard Peltier was a victim of the FBI program, Cointelpro. But it's not just secretive policies of the FBI and CIA. Mainstream politicians have participated in the rape and destruction of Native Americans since this nation's inception. Politicans like McCain work in tandem with the repressive apparatus of the state to line the pockets of the coal, mining and energy companies at the expense of the lives of poor Native Americans, mindlessly destroying their cultures in the process.

John McCain's lurid participation in the latest scandal is part of a terrible history, part of a history that must be cleaned up if this country is to survive in any effective sense, and not continue its dizzying descent into moral and economic chaos and violent repression.

Hat tip to Winter Rabbit for alerting me to this story. See her excellent article on it at Daily Kos.