opinion

Why every vote
counts this fall
by Nick Jackson

According to the Washington Post, the officer presiding over the hearings for Salim Ahmed Hamdan's upcoming Guantanamo trial has disqualified Air Force Brigadier General Thomas W. Hartmann as the top legal adviser at the Office of Military Commissions. Presiding officer Navy Captain Keith J. Allred, ruled that Hartman exerted improper influence over a team of prosecutors in Hamdan's case. Maybe this will prove to be another illustration of rearranging the Titanic's deck chairs after the "unsinkable" ship hit the iceberg. The military commissions inching along at Guantanamo are kangaroo courts whose results could very well wind up invalidated by either an upcoming US Supreme Court ruling or the next president.

Look at Section 3, Subchapter VII of the Military Commissions Act of 2006 (MCA) and read the list of serious criminal offenses that are made applicable to a new category of criminal offender. Also examine the trial procedures set forth in MCA Section 3, Subchapters III and IV. (Don't take my word for it --- read the MCA yourselves.

The criminal procedures found at MCA Section 3, Subchapters III and IV are designed to increase the likelihood of conviction than would otherwise occur in regularly constituted US district courts or military courts martial. Many of the criminal offenses enumerated at MCA Section 3, Subchapter VII are new offenses created AFTER the Guantanamo detainees committed their alleged wrongful acts. Both situations are examples of ex-post facto laws. That's prohibited under Article 1, Section 9 of the US Constitution: "No bill of attainder or ex post facto Law shall be passed."

For all those swiftboaters out there looking for "loopholes" in the Constitution, see if you can find an exception to the Constitution allowing Congress to pass ex-post facto laws when the enemy is a terrorist or an alien. You can't --- and neither will the US Supreme Court when it examines the MCA's constitutionality shortly.

But that doesn't guarantee the Supreme Court will strike down the MCA. A biased Court can come up with all kinds of legal mumbo jumbo to give a president the ruling he desires. All one has to do is remember how a previous Supreme Court upheld President Franklin Roosevelt's unconscionable decision to round up and imprison over a hundred thousand innocent Japanese-Americans during World War II.

The Republican dominated Court is headed by Bush appointee John G. Roberts Jr. Supposedly, the Republicans on the Supreme Court are "strict constructionists." That means they promise to look at the black and white text of the US Constitution, follow its plain meaning, and not create new laws from the bench. (In fact, presidential candidate John McCain has just announced his intention to appoint more "strict constructionists" like Chief Justice John Roberts and Associate Justice Samuel A. Alito, Jr. if he is elected the next president.)

We should all be watching this Supreme Court to see whether its Republican dominated membership remains faithful to "strict constructionism" or whether the likes of Scalia, Thomas, Roberts, Alito, Stevens and Kennedy emerge as born-again judicial activists upholding the MCA and making new law directly contrary to the Constitutional prohibition against Congress passing ex-post facto laws.

On the chance that the Supreme Court does strike down the MCA, will the government be stripped of any laws to prosecute foreign terrorists? No. Both 18 USC 2332 and 18 USC 2332a provide for prosecution of foreigners who kill or attempt to kill US nationals abroad, including by means of weapons of mass destruction. Those convicted can get the death penalty. Sections 2332 and 2332a are not the only effective anti-terrorism laws that were on the books before President Bush took office, so he never needed to resort to any ex-post facto laws to successfully prosecute terrorists.

But that's not what the MCA trials are about anyway. These kangaroo courts are supposed to conduct show trials designed to get detainees sitting on death row by the day President Bush leaves office -- regardless of the Constitution or due process. Bush wants us to forget that he's the first president in our history to authorize torture. Certainly the upcoming show trials are reminiscent of the old Soviet show trials Joseph Stalin engineered in the 1930s to divert attention from his failing communist utopia and to justify his brutal methods. Do we really want to let George W. Bush hand the presidency over to John McCain next January 20? Isn't he the Senator who made a big show of opposing torture and then went on the September 24, 2006 edition of "Face the Nation" to defend the MCA after voting for this abominable law? McCain told CBS Correspondent Bob Schieffer the MCA "defends both our values and our security." Yeah, right. Personally, I don't want any President McCain making decisions about the "security" of my pension, my Social Security, or the privacy of my telephone calls. He's made too many deals with the wrong people in his quest for the White House. You can count on McCain's creditors to call in his IOUs if he wins in November.