Military Tribunals (off another list)

John A. Quayle blueoval at SGI.NET
Thu Dec 6 13:25:12 MST 2001


Yes, well of course in the Military the Commanders, who run the show,see
things a lot differently from those whom they command and prosecute, let
alone their civilians lawyers, whom they do not command, unlike all the
military lawyers, whom they do command. fab
Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954(voice)
217-244-1478(fax)
fboyle at law.uiuc.edu <mailto:fboyle at law.uiuc.edu>


-----Original Message-----
From: msanews eds [mailto:msanews_eds at yahoo.com]
Sent: Thursday, December 06, 2001 3:13 AM
To: msanews at lists.acs.ohio-state.edu
Subject: Prof. Boyle: Kangaroo Courts: Boyle v Gonzales

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Source: Direct Submission
Email: "Boyle, Francis" <FBOYLE at LAW.UIUC.EDU>
To: "'msanews eds'" <msanews_eds at yahoo.com>
Date: Fri, 30 Nov 2001 11:36:31 -0600
Title: Kangaroo Courts: Boyle v Gonzales
TEXT:
Dear Friends:
Attached is a better version of my legal analysis of what Bush and
his Federalist Society Lawyers such as Gonzales are doing on these
military kangaroo courts. According to Gonzales in today's New
York Times:"The order covers only foreign enemy war criminals; it
does not cover United States citizens or even enemy soldiers
abiding by the laws of war. Under the order, the president will
refer to military commissions only noncitizens who are members or
active supporters of Al Qaeda or other international terrorist
organizations targeting the United States." In other words, aliens
here in the United States can still be subjected to these kangaroo
courts.He concedes that point later on: "Under the order, anyone
arrested, detained or tried IN THE UNITED STATES by a military
commission..." I stand by the basic analysis set forth in this
interview which I gave about ten days ago.
As for his defense of military tribunals. Gonzales deceptively
failed and refused to point out that these kangaroo courts will
not be conducted as court-martials in accordance with the Uniform
Code of Military Justice (UCMJ), which does afford some semblance
of due process of law to Members of United Armed Forces. But even
in the case of court-martials conducted under the UCMJ, undue and
illegal command influence in the prosecutions is unavoidable in
politically charged cases such as these. And in regard to these
kangaroo courts, (1) they are not even court-martials under the
UCMJ; and (2) the President himself decides who is going to be
subjected to these kangaroo court proceedings. Basically, such
designation would constitute an unconstitutional "Bill of
Attainder."
During the past decade, I have argued in three formal
court-martial proceedings for Members of US Armed Forces who have
been persecuted for acts of conscience: Two in the Army; one in
the Marines. I have also advised on other court-martial
proceedings and CO discharges. All pro bono publico.
In the persecution of Captain/Doctor Yolanda Huet-Vaughan for
refusing to go to Saudi Arabia in 1990 as a matter of principle
and conscience, if the Base Commander at Fort Leonard Wood could
have had her shot, he would have. Even under the UCMJ her
prosecution was overridden by command influence. It was a kangaroo
court proceeding from beginning to end, a railroad job. The only
reason she was not charged with desertion in wartime--a capital
offense--was that the Army Lawyers concluded that Congress had not
formally declared war in January of 1991, which is the case for
the current situation--a point Gonzales deceptively fails and
refuses to deal with. She was convicted of desertion and sent to
Leavenworth, where she was kept in Medium Security. We got her out
after eight months. Her conviction was later overturned by the
Army Review Board for a gross violation of due process of law,
though this decision was overturned by the Court of Military
Appeals. I am sure that if her only appeal would have been to Bush
Jr., he would have had her shot. Fortunately, right now she is
providing community medical services to poor Blacks and AIDs
patients in Kansas City. No thanks to the Base Commander, the JAG
Corp Lawyers and the Military "Judge" and the Military "Jury".
As for the other two formal court-martials that I have argued
in under the UCMJ, I would not go so far as to state that they
were kangaroo court proceedings. But they did prove the old adage
that military justice is to justice as military music is to music.
We kept our clients out of Leavenworth. But that was no thanks to
the Base Commanders and the JAG Corp Lawyers --all subject to the
command of the Base Commanders, as were the Military Judges.
I am certain that Bush and Gonzales will provide the same type of
"swift and certain justice" they have given to all those people
down in Texas whom they have executed over the years: Unless we
stop them!
Francis A. Boyle
Professor of Law
Board of Directors, Amnesty International USA (1988-92)
_______
In Name of Security, Thousands Denied Constitutional Rights
The federal government wants Americans to believe that the
Constitution only applies when it says so.
Exclusive to American Free Press
By Christopher Bollyn
The actions taken by President George W. Bush and Attorney General
John Ashcroft in secretly detaining untold numbers of individuals
and calling for secret military tribunals to handle captured
Taliban and Al Qaeda prisoners have been condemned as "a
constitutional coup d'etat" which may lead to a "police state,"
according to experts on constitutional and international law.
While most if not all the detainees "look Arab" now, experts warn,
tomorrow's detainees could be blond, blue-eyed-or you.
"What we've seen, since Sept. 11, if you add up every thing that
Ashcroft, Bush and their coterie of federalist society lawyers
have done here, is a coup d'etat against the United States
Constitution," said Francis A. Boyle, professor of international
law at the University of Illinois. "When you add in the Ashcroft
police state bill that was passed by Congress . . . that's really
what we're seeing now.
"Since Sept. 11, we have seen one blow against the Constitution
after another," Boyle said. "Recently, we've had Ashcroft saying
that he had, unilaterally, instituted monitoring of
attorney-client communications without even informing anyone-he
just went ahead and did it, despite the Fourth Amendment ban on
unreasonable searches and seizures without warrant and the Sixth
Amendment right to representation by counsel."
The criminal investigation into the attacks, the largest in U.S.
history, has netted about 1,200 detainees. But the Justice
Department has failed to build a case against a single prime U.S.
suspect in the terrorist attacks.
BAD EVIDENCE
Nine weeks after the Sept. 11 terrorist attacks, federal
authorities said on Nov. 15 that they had found no evidence
indicating that any of the roughly 1,200 people detained in the
United States played a role in the suicide hijacking plot.
However, numerous legal protections, based on constitutional and
international treaties, appear to have been ignored or violated in
the case of the 1,200 detainees.
"We are becoming a banana republic here in the United States, with
'disappeared' people, which was the phenomenon that we all saw
down in Latin American dictatorships in the 1970s and 1980s, with
the support, by the way, of the United States Government," Boyle
said.
"We don't know where they are or the conditions under which they
are being held. We have no idea wheth er they have access to
attorneys. We do know one of them died, under highly suspicious
circumstances, while in custody. There have been reports that he
was tortured to death," he said.
The Constitution protects aliens in the United States, according
to Boyle. "Clearly aliens here are entitled to the protections of
the due process clause of the Fifth Amendment , as well as to the
Article III (Section 2, Clause 3) basic constitutional rights in
criminal cases, including indictment, trial before a federal
district judge or jury, [rights relating to] venue and things of
that nature," Boyle said.
"I'm surprised there hasn't been more of an outcry," said Robert
B. Reich, secretary of labor under President Bill Clinton, about
the long-term detentions and the administration's plans to monitor
conversations be tween lawyers and terrorism suspects in federal
custody. "The president is, by emergency decree, getting rid of
rights that we assumed that anyone within our borders legally
would have. We can find ourselves in a police state step-by-step
without realizing that we have made these compromises along the
way."
The foreign detainees are also protected by international law
under treaties, including the International Covenant on Civil and
Political Rights and the Vienna Convention on Consular Relations
(VCCR).
The International Covenant on Civil and Political Rights, to which
the United States government is a party, affords basic due process
protections to everyone here in the United States, irrespective of
their citizenship, according to Boyle.
The VCCR of 1963 calls for notification "without delay" of
consular officials when one of their nationals has been arrested
or "detained in any other manner."
Although Egypt, Pakistan, Syria, and Saudi Arabia are party to the
VCCR along with the United States, the Justice Department told AFP
that it is using an abbreviated list of nations, the Mandatory
Notification Countries, which includes only one Middle Eastern
nation, Kuwait.
Spokesmen from the Justice and State Departments could not confirm
to AFP that the United States was abiding by the terms of the VCCR
and notifying the consulates of the detainees. However, Kareem
Shora, legal adviser at the American Arab Anti-Discrimination
Committee, said that it had received at least 10 complaints that
this was not the case.
The Justice Department is planning to "round up" and question some
5,000 men, mostly from Middle Eastern countries, who entered the
U.S. legally within the past two years. "When will the FBI, the
CIA and the National Secur ity Agency start to turn these powers,
that they have under the Ashcroft police state bill, against
American citi zens?" Boyle asks. "Clearly, that will be the next
step."
BAD PRECEDENT
Concerning the executive order calling for military tribunals to
try alleged al Qaeda members, or even former al Qaeda members, in
Afghanistan, Boyle says there is an "even more serious problem."
"The third and fourth Geneva Conventions, of 1949, clearly apply
to our conflict now with Afghanistan," Boyle says. "These alleged
al Qaeda members would be protected either by the third Geneva
Convention, if they are fighters incorporated into the army there
in Afghanistan, or by the fourth Geneva Convention, if they are
deemed to be civilians. Both conventions have very extensive
procedural protections on trials that must be adhered to."
Although a trial can be held, there are extensive rules and
protections and basic requirements of due process of law, set
forth in these treaties that must be applied. Failures to apply
these treaties would constitute war crimes, according to Boyle.
The executive order calling for secret military tribunals is
extremely dangerous because it invites reprisals by the Taliban,
Boyle says. "What it is basically saying to the Taliban
government and to al Qaeda is, 'We are not going to give you the
protections of either the third or fourth Geneva Conventions'
guarantees on trials.' What that means is that they could engage
in reprisals against captured members of the United States Armed
Forces.
"It opens up our own armed forces to be denied prisoner-of-war
treatment," he said. "So, what we're doing here is exposing them
to a similar type of treatment, which would be a summary trial, in
secret, subject to the death penalty."
Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954(voice)
217-244-1478(fax)
fboyle at law.uiuc.edu





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