Wire Report

Andy Worthington – Journalist/Author
	Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at: www.andyworthington.co.uk.

(WIRE FFF) – Last Tuesday, a little-known court — the Court of Military Commissions Review — convened to hear appeals in the cases of the only two men sentenced in the military commission trial system established by Congress in 2006, after the first version, conceived by Vice President Dick Cheney and his close advisors in November 2001, was ruled illegal by the U.S. Supreme Court.¹

The two men in question — Salim Hamdan and Ali Hamza al-Bahlul — were tried and convicted in 2008, but whereas Hamdan, a driver for Osama bin Laden, had the major charge against him (conspiracy) dismissed by a military jury in August 2008, and was sentenced to serve just six months for providing material support to terrorism², al-Bahlul, who made a video promoting al-Qaeda and is regularly described as al-Qaeda’s “media secretary,” was convicted of conspiracy, solicitation of murder, and providing material support to terrorism, and received a life sentence in November 2008.

Under consideration are two specific questions: firstly, whether providing material support to terrorism is a valid basis for conviction in a war crimes court; and, secondly, whether al-Bahlul’s trial was unfair because he was denied the right to represent himself.

On the first point, lawyers have always maintained that providing material support to terrorism is not a valid war crime. In an email exchange last week, Lt. Col. David Frakt, who represented al-Bahlul before his trial, explained, “It has always been my position that material support to terrorism was a fabricated war crime that was not traditionally triable in a military commission as of the time of Mr. al-Bahlul and Mr. Hamdan’s affiliation with al-Qaeda, but rather was illegally retroactively applied to them several years after the fact.”

As Lt. Col. Frakt also mentioned, the problems with the material-support charges had been advanced by Hamdan’s attorneys in a pre-trial motion to dismiss the charge back in February 2008, when they also attempted to dismiss the conspiracy charge for the same reason. On July 16, the judge in Hamdan’s case, Army Capt. Keith Allred, rejected the motion to dismiss on ex post facto grounds, finding that “conspiracy and material support for terrorism have traditionally been considered violations of the law of war,” as Human Rights First explained in a summary of Hamdan’s case.³

Assist. Attrny. Gen. David S. Kris Statement to Comm. of Armed Srvcs U.S. Senate July 7, 2009 (PDF 61KB)

However, as Lt. Col. Frakt described it, Allred indicated that it was “a very close issue. Although he acknowledged that the crime of material support to terrorism had never been the subject of charges in a military commission before, he reasoned that similar conduct, essentially being part of an armed insurgent group committing war crimes against civilians, had been treated as a war crime in the past, such as during the U.S. Civil War. He argued that Congress was merely providing a new name to conduct that had always been treated as a law of war offense triable by military commission.”

Significantly, Lt. Col. Frakt added, “What Captain Allred ignored is that what Mr. Hamdan was charged with was essentially serving as a personal driver and servant to Osama bin Laden and there was no indication of involvement in any war crimes, against civilians or otherwise.”

Even more significantly, when the Obama administration and Congress revived the Commissions last summer, David Kris, a senior Justice Department official in the National Security Division, testified that the Justice Department had concluded that material support to terrorism was not a traditional war crime and should be removed from the new version of the Military Commissions Act. As Kris explained:

“While this is a very important offense in our counter-terrorism prosecutions in Federal Court … there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the rules of war … our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.”

David S. Kris
U.S. Assistant Attorney General
Department of Justice
National Security Division

As Lt. Col. Frakt explained to me, despite Kris’ concerns, “Congress rejected this sound advice and included material support to terrorism in the revised 2009 MCA, possibly in part because I advised CongressNov when I testified that if they removed this crime from statute there would be very few detainees left to prosecute.”

Noticeably, Kris was more enthusiastic about retaining the conspiracy charge, but as I explained in an article in November, “this, too, is fraught with problems. In Hamdan v. Rumsfeld, the case in which the Supreme Court shut down the Commissions’ first incarnation, Justice John Paul Stevens, in an opinion in which he was joined by three other justices, made a point of mentioning that ‘conspiracy’ has not traditionally been considered a war crime.”

In Hamdan’s case, a successful appeal on the material support charge would have little practical effect, as he is already a free man⁴ (although Charles Schmitz, who served as his interpreter during proceedings at Guantánamo, told the Wall Street Journal that it was “important to him to clear the conviction,” because “In Yemen, they look at him as a criminal. He’s been tainted.”).⁵

To be honest, a successful appeal on the material support charge would mean little to al-Bahlul either, although, it would, of course, fulfill the Justice Department’s own fears about including it in the new legislation, especially as the Obama administration has already announced its intention of using it against several prisoners currently held at Guantánamo.

It remains to be seen, of course, whether material support and/or conspiracy survive an appeal, but in court last week, lawyers for al-Bahlul pushed both points. As the Wall Street Journal described it, Michel Paradis, representing al-Bahlul, argued that the charges on which al-Bahlul was convicted “weren’t traditionally considered war crimes under international law, and thus Congress in 2006 couldn’t retroactively make them so. International law strongly discourages viewing conspiracy as a war crime. Providing material support for terrorism, while a domestic U.S. crime since the 1990s, has never been considered a war crime.”

Ingeniously, the lawyers also argued that al-Bahlul’s production of propaganda material for al-Qaeda should have been protected by the First Amendment of the U.S. Constitution, guaranteeing freedom of speech. One of his attorneys, Mike Berrigan, told reporters, “Mr. al-Bahlul’s conduct in making this documentary — his prosecution for that conduct — was a violation of the U.S. First Amendment. Not that Mr. al-Bahlul had particular First Amendment rights, but the constitutional restrictions on the U.S. government prosecuting someone for speech made the prosecution itself illegal. Mr. al-Bahlul’s conduct in making that documentary does not come close to the standard of inciting violence that can be criminalized.”⁶

The prosecution disagreed, of course, and Navy Capt. Edward White, who argued for the government at the appeal, stated, “Our position was that, as an enemy combatant waging war against the United States from abroad, he does not have First Amendment rights. He crossed the line into criminally, soliciting other people — inducing, enticing, encouraging, persuading them — to commit war crimes.”

Beyond all these claims, however, the most disturbing aspect of al-Bahlul’s conviction is the nature of his trial, and what Lt. Col. Frakt described to me as his “best hope” is that the Court of Military Commission Review will recognize that the one-sided trial, in which he refused to mount a defense, was fundamentally unfair — or, as Lt. Col. Frakt put it, the judge’s “denial of his right to self-representation essentially denied him of a fair trial because the judge knew that he would not allow me to represent him.”

This was indeed what happened. Al-Bahlul sought strenuously to represent himself, but although his request was granted by Army Col. Peter Brownback, his first judge in the revived Commissions, Brownback was then involuntarily retired from the Army, and the new judge, Air Force Col. Ronald Gregory, revoked al- Bahlul’s pro se status (his right to represent himself).

As I explained at the time, after Maj. Frakt (as he was at the time) announced that al-Bahlul was boycotting the trial, because he wished to represent himself, and did not wish to be represented by a military lawyer, Frakt then asked to be relieved, noting that he was obliged to respect his client’s wishes. When Col. Gregory refused, he declared that he too was unable to participate. “I will be joining Mr. al-Bahlul’s boycott of the proceedings,” he said, “standing mute at the table.” He then refused to answer any further questions from Col. Gregory, even though the judge attempted to argue that he was “obliged to participate,” before conceding that it was not in his power to force him to do so. As Lt. Col. Frakt described it to me last week, Col. Gregory’s actions “ensured there would be no defense at all in the final military commission trial of the Bush era.”

Lt. Col. Frakt also explained that, although appeals are automatic in the Commissions unless waived in writing, the only reason that al-Bahlul failed to waive his right to appeal in writing was because he “refused to accept any papers from his lawyers or the court.” As Frakt described it, “Mr. al-Bahlul made it plain to me that he did not wish to appeal any conviction and he categorically refused to meet with his appointed appellate counsel to discuss any possible grounds for appeal.”

Lt. Col. Frakt was full of praise for the lawyers attempting to defend al-Bahlul, even though they “were hampered by the fact that I did not preserve any issues for appeal (other than the self-representation issue) because I did not speak during the entire trial.” He noted that they “managed to find a way to raise a number of interesting and important issues that strike at the core of the legitimacy of the military commissions,” but in the end, what is most noticeable about al-Bahlul’s case is how he remains in a position of extraordinary isolation at Guantánamo.

Not only is he imprisoned, alone, to serve out his life sentence, but as Lt. Col. Frakt explained, “it remains a mystery what will happen to Mr. al-Bahlul. Although he is serving a life sentence, under current U.S. law, he can’t be transferred out of Guantánamo to a prison on the mainland because detainees can only be transferred to the U.S. to face trial.”

Unless he is to stay in Guantánamo, as the prison slowly empties around him, until, perhaps, he is the only prisoner left, it seems, as Lt. Col. Frakt also explained, that “special legislation will be required” to enable him to leave Guantánamo, even if it is just to resume his life sentence elsewhere.

Lost in the system, essentially, Ali Hamza al-Bahlul is another example of the way in which justice at Guantánamo never progressed much beyond an ad hoc system full of holes, and, whatever the outcome of these appeals, it should give the Obama administration some salutary reminders as to why the commissions remain an unsuitable system for any kind of credible trial.

© 2001-2010 The Future of Freedom Foundation. All rights reserved.

Source(s): ¹HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 05–184. Argued March 28, 2006—Decided June 29, 2006 • ²The UK Guardian “Profile: Salim Ahmed Hamdan” by Mark Tran published Tuesday, June 5th, 2007 • ³Human Rights First, “In the Courts: The Case of Salim Ahmed Hamdan” • ⁴The Star “Bin Laden’s Driver Talk” by Michelle Shephard, published Monday, August 17, 2009 • ⁵The Wall Street Journal “White House Defends Use of War Crime Tribunals” by Jess Bravin • ⁶Voice of America “US Military Panel Hears 1st Guantanamo Appeal” by Michael Bowman, published January 26, 2010

The Smoking Argus

WHITE HOUSE OFFICIAL STATEMENT / WASHINGTON D.C. – In his weekly address, President Barack Obama discussed his solemn responsibility to protect the nation and the steps the administration has taken to that end. From ordering reviews into the attempted act of terrorism in Detroit to a comprehensive strategy that has refocused our efforts on the fight against al Qaeda in Afghanistan and Pakistan and strengthened international partnerships to keep unrelenting pressure on extremists across the globe, the President will continue to do everything in his power to uphold the nation’s security.

—END OFFICIAL STATEMENT—

Related Material(s)
	President Obama Weekly Address: President Obama Outlines Steps Taken to Protect the Safety and Security of the American People TRANSCRIPT (PDF 13.4k)

Source(s): The White House Briefing Room

Tarrin Lupo

How easy is it for you, your family, and friends to now be labeled a domestic terrorist? Take the fun quiz and find out if you are now an enemy of the state. I also discuss what you can do if you are in fact a “domestic homegrown radical” as defined by the Federal government.  Can you now be jailed indefinitely without even a trial? We answer all these questions and also solicit the hosts of Free Talk Live for their opinions in the video that follows.

Further Reading… (to help decide if you too might be an “enemy” of the state)

“National Planning Scenarios-2006″ by D.H.S. “The Modern Militia Movement” by M.I.A.C. “Rightwing Extremism” by D.H.S. “Leftwing Extremism” by D.H.S. “Militant Extremists in the U.S. by C.F.R. “The Modern Tyranny Movement by S.M.I.A.C.

Joseph Marohl

Twelve years ago, Ralph Peters wrote, “Contemporary American culture is the most powerful in history, and the most destructive of competitor cultures [called elsewhere “noncompetitive cultures, such as that of Arabo-Persian Islam or the rejectionist segment of our own population”—emphasis mine].

Peters, now retired from the U.S. Army as Lieutenant Colonel, writes novels (under his own name and the pen name Owen Parry), essays, and newspaper columns.

In the same article, Peters cites celebrities like Bill Gates, Madonna, and Steven Spielberg and television programs like Dynasty, Dallas, and Baywatch for inciting international unrest by purveying “America’s irresponsible fantasies of itself … a devilishly enchanting, bluntly sexual, terrifying world” from which the normal Third-World citizen is barred.

But Col. Peters is not altogether hostile to this devilish enchantment. For most of the article, he praises American mass media—particularly action movies—as effective in quashing ideologies (inside and outside the U.S.A.) that resist exploitation by American-style corporate capitalism.

“The genius, the secret weapon, of American culture,” he says, “is the essence that the elites despise: ours is the first genuine people’s culture. It stresses comfort and convenience—ease—and it generates pleasure for the masses. We are Karl Marx’s dream, and his nightmare.”

I might add that we are also Aldous Huxley’s nightmare in Brave New World—a culture titillated by “feelies” while rejecting actual sex and turning human reproduction into technology … for profit. A populace enslaved and intellectually enfeebled by its gadgets and incapacity for the independent thought and effective cooperation needed to resist its masters.

He continues, making a point that Noam Chomsky (on the other end of the sociopolitical spectrum) agrees with: that current labor practices exhaust workers, leaving them fatigued and incapable of research into and critical thinking about current events—thus the average worker is drawn to the seductive fantasies of mass entertainment, an American specialty.

He says, “Secular and religious revolutionaries in our century have made [a] mistake, imagining that the workers of the world or the faithful just can’t wait to go home at night to study Marx or the Koran. Well, Joe Sixpack, Ivan Tipichni, and Ali Quat would rather ‘Baywatch.’ America has figured it out, and we are brilliant at operationalizing our knowledge, and our cultural power will hinder even those cultures we do not undermine.” [Emphasis mine.]

Unsurprisingly, Col. Peters is taken less with Madonna’s “irresponsibly” open and assertive sexuality or the independent, neorealist stories of struggling masses or hapless individuals than with Hollywood summer blockbusters: “The films most despised by the intellectual elite—those that feature extreme violence and to-the-victors-the-spoils sex—are our most popular cultural weapon, bought or bootlegged nearly everywhere.”

Sylvester Stallone, Arnold Schwarzenegger, and Chuck Norris are, for Col. Peters, America’s answer to Tokyo Rose, Axis Sally, and Hanoi Hannah. Violence becomes the working man’s alternative to thinking about the information so readily at his fingertips—and his only tool in dealing with the reality of rising unemployment and poverty: “As more and more human beings are overwhelmed by information, or dispossessed by the effects of information-based technologies, there will be more violence.”

As highly individualistic, vigilante-style heroes begin to dominate the world’s imagination, Peters (rightly) predicts, nationalism will fail and terrorism will rise:

“We will see countries and continents divide between rich and poor in a reversal of 20th-century economic trends. Developing countries will not be able to depend on physical production industries, because there will always be another country willing to work cheaper. The have-nots will hate and strive to attack the haves.

“… Beyond traditional crime, terrorism will be the most common form of violence, but transnational criminality, civil strife, secessions, border conflicts, and conventional wars will continue to plague the world, albeit with the ‘lesser’ conflicts statistically dominant. In defense of its interests, its citizens, its allies, or its clients, the United States will be required to intervene in some of these contests. We will win militarily whenever we have the guts for it.

“… The de facto role of the US armed forces will be to keep the world safe for our economy and open to our cultural assault.” [Emphases mine.]

No wonder, then, that the attacks on September 11, 2001, so closely resembled—in their gaudy visual spectacle—a Roland Emmerich or Michael Bay film. No wonder, then, that the shock-and-awe bombings of Baghdad looked like a video game. No wonder, then, that President Bush found it expedient to dress up like a Top Gun cadet to boast about the U.S. victories in the Middle East.

But what do we do when the mass entertainments and independent (non-embedded) investigative reporters begin to sway in another direction—away from grandiloquent, corporate-inspired logos on the evening news (so effectively lampooned on The Daily Show and The Colbert Report), and away from multimillion-dollar spectacles of computer-generated stunt work and testosterone-fueled explosions?

What happens when new, inexpensive computer and recording technologies make it possible for Joe Sixpack, Ivan Tipichni, and Ali Quat [the stereotypes Peters so arrogantly calls on to denigrate working classes and “noncompetitive” have-nots] to make their own documentaries and narrative films—telling their own stories, not just the propagandistic fantasies of corporate-owned, corporate-controlled, and corporate-idolizing mass media?

What happens when blogging and YouTube allow unsponsored, not-for-profit expressions and analyses of current events? What happens if and when the public wants to see more humane, empathetic, and cooperative images of American life?

Writing in the Spring 2009 Journal of International Security Affairs, Col. Peters complains that, once undefeatable, we Americans no longer have the guts for military victories to ensure the success of our economic interests and “cultural assaults.”

For this, he apportions blame everywhere from “academic theorists” to the end of the military draft to atheism to fewer bloody noses in school playgrounds, jaundicing America’s backbone. Further, we have “cheapened” our respect for war itself—“our enemies view the home front as our weak flank.”

But the worst thing of all, he says, is the “killers without guns”: “There will always be a hostile third party in the fight, but one which we not only refrain from attacking but are hesitant to annoy: the media.”

So however bloodthirsty American media make us citizens of the world and however much their airbrushed images of wealth and glamour make us dissatisfied with our ordinary lives, pushing us to terror and despair, there are chinks in the empire’s best secret weapon!

What’s a good neocon militarist to do?

Col. Peters strongly implies a solution: “Win. In warfare, nothing else matters. If you cannot win clean, win dirty. But win.”

But, first, let’s kill the independent media … literally: “Although it seems unthinkable now, future wars may require censorship, news blackouts and, ultimately, military attacks on the partisan media.” [Emphasis mine.]

Given his uncanny (no, “creepy”) foresight twelve years ago, Col. Peters’ new report raises chilling prospects for American democracy in 2013 … if not sooner. A “democratic” nation that declares war on its “partisan media”! —By which, no doubt, Peters does not mean Fox News, CNN, or PBS, on which he regularly appears as an expert on military and cultural affairs.

And, as Jeremy Scahill reminds us, 189 journalists have been killed while on duty covering the Iraq war alone—at least 16 of which killed by U.S. forces.

But it looks like Peters, at least, is already thinking the “unthinkable.”

Allison Bricker

This past week, sensitive documents from the Missouri Information Analysis Center were leaked to the public. The M.I.A.C. report designated “UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE”, seeks to put supporters of Dr. Ron Paul, those tired of the endless banker bailouts, and just about anyone else who dare question the Federal government on par with Neo-Nazis and abortion clinic bombers.¹

It disturbs me greatly to bear witness as our Federal government continues to expand its program of correlating dissent with domestic terrorism. Fellow readers, this despicable tactic is precisely why many of our Founding Fathers sought to engross humanity’s inherent liberties into the Constitution via The Bill of Rights. Among these rights derived solely from nature, is the right to free speech; even speech deemed unpopular or critical of one’s government.

FBI-JTT/MCSD Domestic Terror Brochure

Truth be told, the tactic of linking those criticizing the central authority as outright enemies of the state, whether it be king or government is as old as humanity itself. This is how students of the enlightenment, ergo Thomas Jefferson, James Madison, et al knew the absolute necessity of prohibiting government regulation of speech. The Founding generation witnessed first hand “Royal Governors” and legislatures executing and imprisoning their fellow colonists for speaking out against the crown.² These unjust decrees backed by the weight of the sword, were necessary in the eyes of the loyalist governments. They feared dissent would gradually give rise to critical thinking, which in turn would demand answers and accountability, and thus dissent was seen as a direct threat to their ever corrupting grip on power.

Even members of the founding generation were tempted by the corrupting influence of power. Fearing a threat to his own power and pressured by the Hamiltonian faction, President Adams signed into law a series of legislation that went on to become known as “The Alien and Sedition Acts” . Thankfully, the passion for politics by Americans from all walks of life, denounced the acts so roundly, along with the repudiation of the Virginia and Kentucky resolutions, that it helped propel Thomas Jefferson into the Presidency over incumbent John Adams. President Jefferson immediately pardoned all those found guilty of the Acts which he let expire upon his election.³

At the time it was an uniquely American philosophy that power must challenge power, or as James Madison wrote:

“Ambition must be made to counteract ambition… It may be a reflection on human nature, that such devices should be necessary to control the abuses of government”

James Madison
Federalist No. 51
February 8th, 1788

Consequently, the eradication of this ideal is repeatedly articulated by the Federal government in its most recent attempt to cast dissent as the enemy to its brand of Neo Patriotism. For this purpose sheds sunshine as to why the central authority and its agents seek to establish an interrelationship by equating the Founding Fathers to terrorists. Regrettably, the video to the right establishes that the central authority has waged their war of reeducation at least since July of 2001 prior to the intial hyper call to nationalism/Neo patriotism following the September 11th attacks.

However, this is just another example of an ever increasing amount of pejorative rhetoric towards the central authority’s own compact, the U.S. Constitution. The M.I.A.C. report desires to reinforce the correlation made both in the F.E.M.A training video above and the Phoenix F.B.I. Joint Terrorism Task Force/Maricopa County Sheriff’s Department’s brochure⁴ of those who reference and defend the Constitution as terrorists. Moreover it attempts to handcuff supporters of Representative Ron Paul (R-TX) to the likes of Eric Rudolph, the 1996 Olympic park bomber. As a result, if those of us who merely supported Representative Ron Paul during the campaign are dangerous homegrown radicals according to M.I.A.C., then how does one think they view Dr. Paul, who publicly declared himself to be “The Champion of the Constitution”?⁵

During the course of the previous administration, both officials and their old-media shills demonized individuals who dared speak out against the Bush Doctrine as unPatriotic, unAmerican, and/or traitors. Now we are told by socialist scribes⁶ that dissenting against the “economic terrorism” id est the central bank manipulated credit crisis, is also unpatriotic. If we are no longer allowed to question or criticize the government’s domestic or foreign policies without being painted as homegrown radicals, is there any semblance left at all of our republic? Should I instead just pledge blind allegiance to President Obama and be content with my “right” to criticize a group of B-list celebrities or no talent wannabee singers on “Dancing with the Stars” or “American Idol” respectively?

Therefore, since our temporary browser cookie indicates that various members of the U.S. Senate are regular readers of “The Smoking Argus Daily”, I respectfully request an answer one way or the other as to whether or not my political philosophy and associations are terrorist in nature.

According to the M.I.A.C. report, you just might be a terrorist if…

	You display or use the “Gadsden Rattlesnake” Flag/Symbol.
	You have watched the “Anti-Federal Reserve System” – Zeitgeist Movie.
	You support a repeal of the 16th Amendment – the Income Tax.
	You supported the candidacy of Representative Ron Paul (R-TX).
	You are a member of The Committees of Safety.
	You oppose mandatory citizen service for those aged 18 to 24 per Rahm Emanuel’s proposal.
	You oppose the Security and Prosperity Partnership being out of the jurisdiction of Congressional oversight.
	You support the abolition of the FEDERAL RESERVE private central bank and favor a return to Constitutional money.
	You oppose any further restrictions on the inherent right to bear arms.
	You have watched Aaron Russo’s “America: Freedom to Fascism”
	You oppose any additional bailout bills for failing banks and/or private companies.

Dear members of the Senate:

Please think of the checklist above as my 21st century “petition for Redress of Grievances”. Tis a fact of candid reality that when a government seeks to cast all dissent as terrorism, we are most certainly flirting upon the precipice of tyranny.

Respectfully,

Allison Bricker

Source(s): ¹Missouri Information Analysis Center – Strategic Report – 02/20/2009 • ²The Trial of Peter Zenger 1735 • ³ “Our Presidents & How We Make Them” by A.K. M^cClure – HARPER & BROTHERS Publishers © 1905 • ⁴ Phoenix F.B.I Joint Terrorism Task Force/Maricopa County Sheriff’s Department – Domestic Terrorism Brochure • ⁵WMUR/CNN Republican Presidential Primary Debate – Manchester, NewHampshire – June 5th, 2007-Part 1 • ⁶ New York Times “Herbert Hoover Lives” by Frank Rich, published January 31st, 2009