enemy soldier of war

[JBELL]

'DIRTY BOMB' SUSPECT CAN BE HELD INDEFINITELY
Press Association
Mon Jun 10 2002 20:21:02 ET

The US citizen accused of plotting to detonate a radioactive dirty bomb in Washington faces an uncertain future in military custody.

Abdullah Al Mujahir has been moved from a civilian jail to a high-security US Navy prison in South Carolina after officials determined he was an "enemy combatant" who posed a serious and continuing threat to Americans.

But a US Justice Department official said there are no plans to make him face a military tribunal set up for alleged terrorists because these are only for non-Americans. Nor are there any plans to press criminal charges against the al Qaida suspect.

Under US legal rules, Al Mujahir can be held indefinitely an as enemy soldier, the official said.

US Attorney General John Ashcroft defended the position, claiming that Al Mujahir is being held under the laws of war and under a Supreme Court precedent which established that the military may detain a US citizen who has joined the enemy and entered America to carry out "hostile acts."

The decision has been criticised by civil rights groups who said the US Government only moved him into military custody after failing to provide any evidence to keep him detained in the civilian legal system.

Al Mujahir's access to a lawyer is also expected to be severely restricted now that he is in military custody.

It is the latest controversy surrounding the American treatment of al Qaida and Taliban suspects.

The US Government came under fire from civil rights groups across the globe when plans for military tribunals were first released last year.

Under the initial proposals, defendants would in some cases not get to hear the evidence against them.

The revised plan for the tribunals, released by US Defence Secretary Donald Rumsfeld in March, give the accused many of the rights enjoyed by defendants in a normal trial.

But they will have limited right of appeal, and standards for evidence will be more relaxed.

Evidence which a "reasonable person" would consider relevant will be allowed to be heard in the commissions. This is a looser standard than US military and civilian courts, and is likely to give prosecutors more room for manoeuvre.

Hearsay evidence will be permitted, as will materials where the chain of custody cannot be fully established. US authorities said this was necessary due to the special circumstances of the war.

Suspects brought before the tribunals will have the right to a civilian lawyer as well as the military one assigned to them at the cost of the government.

They face the death penalty if convicted.

Mr Rumsfeld's promised that the tribunals will be "fair, balanced and just".

But William Shulz, executive director of Amnesty International USA, said: "We fear that in the proceedings undertaken by military commissions, justice may neither be done, nor seen to be done."

No tribunals have yet been scheduled.

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U.S. Constitution: Sixth Amendment
Sixth Amendment - Rights of Accused in Criminal Prosecutions

Amendment Text | Annotations

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence

[JBELL]

By Christopher Reilly
YellowTimes.org Columnist (United States)

(YellowTimes.org) – The recent arrest of Abdullah Al-Mujahir, formerly known as Jose Padilla, raises broad implications for the U.S. justice system. Al-Mujahir, detained on May 8 at Chicago's O'Hare International Airport, is accused, by the U.S. federal government, of planning to build a "dirty bomb" and detonate it in Washington D.C. However, instead of giving Al-Mujahir, a U.S. born citizen, his full rights guaranteed by the U.S. constitution, he has been handed over to the Defense Department where he will face a military tribunal.

What is interesting about this case is that Al-Mujahir is a U.S. born citizen; the military tribunals unveiled by the Bush administration on November 13, 2001 clearly state that they are not intended for U.S. citizens.

The President wrote, "To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this…to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals." (1)

However, in the next section of his executive order, President Bush states: "The term 'individual subject to this order' shall mean any individual who is not a United States citizen…" (2)

But in the case of Al-Mujahir, the Bush administration has decided that a U.S. citizen could face a military tribunal, despite the President's own order declaring that military courts apply to "any individual who is not a United States citizen…" Attorney General John Ashcroft and the Defense Department advised the President to label Al-Mujahir as an "enemy combatant." The President agreed.

The Attorney General said, "In determining that Al-Muhajir is an enemy combatant who legally can be detained by the United States military, we have acted with legal authority both under the laws of war and clear Supreme Court precedent, which establish that the military may detain a United States citizen who has joined the enemy and has entered our country to carry out hostile acts."

The "Supreme Court precedent" given by the Attorney General, as reported in the Associated Press on June 10, was from the World War II case in 1942, ex Parte Quirin. However, this justification is not crystal "clear."

Ex Parte Quirin dealt with eight German born U.S. residential "individuals" who were convicted for carrrying out sabotage acts for the Third Reich against the U.S. government. Former President Franklin Roosevelt appointed a military commission to try the "individuals."

The defendents appealed the President's decision to the Supreme Court, which struck down their appeal favoring the Roosevelt administration.

However, this incident sharply contrasts with that of Al-Mujahir's situation because Al-Mujahir was a U.S. born citizen. On the contrary, seven of the eight Germans convicted still held citizenship in Germany despite their resident alien status. The eighth German, whose last name was Haupt, claimed that he was a U.S. naturalized citizen because both of his parents were naturalized. The U.S. government at the time countered that Haupt gave up his U.S. citizenship because of his German allegience.

Another flaw in Ashcroft's argument is that the U.S. was in a Congress-sanctioned war on Germany. But in the current situation, the U.S. is only in a verbal war against an enemy that is so broad that it is only known as "terror."

If Al-Mujahir is forced to face a military tribunal this defendent will find that he is not accorded the same level of "justice" that a regular U.S. court trial would guarentee to any other citizen. He has already been held by the Bush administration for over a month without any charges being brought forth against him.

If he were to be brought in front of a military tribunal, TerrorismAnswers.com highlights the differences between the tribunals and a conventional U.S. court:


Instead of the jury consisting of a 12-member public panel, the jury will consist of three to seven military officers.
Only a two-thirds vote is needed for conviction and sentencing in a military tribunal, except in cases where the death penalty is involved.
Secondhand evidence and hearsay, which are banned from traditional courts, will be allowed as long as it would have 'probative value to a reasonable person.'
The tribunals "will not require prosecutors to establish the 'chain of custody' of evidence - that is, to account for how the evidence was transported from where it was found to the courtroom."
Defendants will not be allowed to appeal decisions in federal courts, but "instead petition a panel of review, which may include civilians as well as military officers, to review decisions. The president, as Commander in Chief, will have final review."
Therefore, based on this short analysis, there are still many questions on these tribunals; moreover, their usage is not "clear" as the Attorney General insisted.

It is disheartening that the mainstream news sources, such as the New York Times, and even the Associated Press, did not explain ex Parte Quirin to readers after referencing it.

It is even more disheartening that conservatives have allowed an American president to determine how many rights an American citizen has.

[Christopher Reilly writes news reports for YellowTimes.org. His main goal is to increase human rights for all people in the world. He lives in the United States.]

Christopher Reilly encourages your comments: creilly@YellowTimes.org