JURIST Contributing Editor Mary Ellen O’Connell of Notre Dame Law School and panel colleagues at a recent Washburn University School of Law symposium on “The Rule of Law and the Global War on Terrorism” offer their consensus on the appropriate way forward on critical issues in international law and policy that will confront President Barack Obama’s Administration when it takes office on January 20, 2009…

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Within hours of the attacks of 9/11 the Bush Administration decided to treat the attacks as part of a worldwide war–a new kind of war that would free the Administration to re-write the rules. A “global war on terrorism” was declared and new rules for the targeting, detention and trials of persons suspected of acts of terrorism or membership in terrorist organizations were created. Seven years later, upon the election of a new president, there is an intense debate under way in the United States as to what to do about the “global war” and the laws and institutions resulting from it.

Attorney General Michael Mukasey expressed his views at a meeting of the Federalist Society November 20 and had this to say about the future:

The next Administration will have the opportunity to review the institutions and the legal structures that this Administration has relied upon in keeping the nation safe over the past seven years. I am neither so proud as to think that the next Administration will be unable to make improvements, nor so naïve as to think that the policy choices, or even the legal judgments, that they make will be identical to ours.

What I do hope, however, is that the next Administration understands the threat that we continue to face and that it shares the priority we have placed on remaining on the offense to prevent future terrorist attacks. Remaining on the offense includes not simply relying on the tools that we have established, but also encouraging a climate in which both legal and policy issues are debated responsibly, in a way that does not chill the intelligence community and deter national security lawyers from making the decisions necessary to protect us.

And I am hopeful that some time from now, after the next Administration has had the chance to review the decisions made and the legal advice provided, it will acknowledge that despite any policy differences, the national security lawyers in this Administration acted professionally and in good faith and that the country was safer as a result.

Three of us, all specialists in international law, especially International Humanitarian Law, take a very different view, which we expressed at a recent Washburn University School of Law symposium on “The Rule of Law and the Global War on Terrorism”. The members of the Symposium’s final panel on “The Way Forward”[1], considering important legal issues that will confront President Obama’s Administration when it takes office on January 20, 2009, have framed the following:

Washburn Consensus on Post-9/11 Principles

1. The phrase “Global War on Terrorism” should no longer be used in the sense of an on-going “war” or “armed conflict” being waged against “terrorism”. Nor should it serve as either the legal or security policy basis for the range of counter- and anti-terrorism measures taken by the Administration in addressing the very real and present challenges faced by the United States and other nations in addressing terrorism.

2. The Administration should announce that it is taking immediate steps to close the interrogation and detention facility at Guantanamo Bay, Cuba, with a view to removing all remaining detainees by July 1, 2009.

3. The Military Commissions Act of 2006 should be repealed in its entirety, and all activities currently being conducted under the Military Commission process constituted by the Act should be terminated.

4. Persons accused of committing acts of terrorism, war crimes or other serious human rights violations should be tried, as appropriate, before Article III courts or, as provided for in the Uniform Code of Military Justice, by courts-martial or military commission.

5. The Detainee Treatment Act of 2005 should be amended to ensure the application of one standard of treatment and interrogation to all detainees held in U.S. custody or control.

6. The single standard for the treatment and interrogation of all detainees held in U.S. custody or control should be that reflected in Army Field Manual 2-22.3, Human Intelligence Collector Operations.

7. Any presidential findings, statements, Executive Orders, or other forms of authorization related to detainee treatment and interrogation that sanction or authorize methods inconsistent with Field Manual 2-22.3 should be withdrawn.

8. A comprehensive investigation of alleged post-9/11 U.S.-held detainee abuse should be undertaken by an independent, expert commission with the goal of producing a 2009 report detailing both the findings and recommendations of this commission.
David E. Graham, Colonel (ret’d)
Executive Director, The Judge Advocate General’s
Legal Center and School, U.S. Army [2]

Professor Mary Ellen O’Connell
Robert and Marion Short Chair in Law
University of Notre Dame

Professor Philippe Sands QC
University College London
Barrister, Matrix Chambers

1. The Panel was chaired by Dean of the Washburn Law School and former Judge Advocate General of the Army, Thomas J. Romig
2. These views are expressed in Mr. Graham’s private capacity.

Mary Ellen O’Connell is the Robert and Marion Short Chair in Law at the University of Notre Dame. She is the author of The Power and Purpose of International Law (OUP 2008); International Law and the Use of Force (Foundation 2005, 2008). For the ILA Use of Force Committee initial report on “The Meaning of Armed Conflict in International Law” (2008), see http://www.ila-hq.org/en/committees/index.cfm/cid/1022

Source URL: http://jurist.law.pitt.edu/forumy/2008/11/way-forward-post-911-principles.php

For more information on the event, see this link: Washburn University School of Law symposium on “The Rule of Law and the Global War on Terrorism” and the Selected Works Relating to The Rule of Law and the Global War on Terrorism Presenter and Panelist Bibliographies

This week Visibility 9-11 welcomes Constitutional expert Michael Badnarik.  Mr. Badnarik ran for President of the United States in 2004 and was actually arrested when he dared to cross police lines in protest of being excluded from the Presidential debates of 2004.  He also teaches an 8 hour class as an introduction to the Constitution and has written a book about the Constitution titled Good to be King; Foundations of Freedom.  For more information, visit Michael’s website at Constitution Preservation.

This interview includes a frank discussion about the usurpation’s of the Constitution since 9-11 through the USA PATRIOT Act and the Military Commissions Act, George Orwell, and some of Mr. Badnarik’s doubts about the official story of 9-11 and his support for a new investigation.

Intermission music by Lynn Ahrens.

Ending music by High-C.

Direct download: visibility911_badnarik.mp3

Rule by fear or rule by law?

by Lewis Seiler, Dan Hamburg
The San Francisco Chronicle
Monday, February 4, 2008

“The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist.”

- Winston Churchill, Nov. 21, 1943

Since 9/11, and seemingly without the notice of most Americans, the federal government has assumed the authority to institute martial law, arrest a wide swath of dissidents (citizen and noncitizen alike), and detain people without legal or constitutional recourse in the event of “an emergency influx of immigrants in the U.S., or to support the rapid development of new programs.”

Beginning in 1999, the government has entered into a series of single-bid contracts with Halliburton subsidiary Kellogg, Brown and Root (KBR) to build detention camps at undisclosed locations within the United States. The government has also contracted with several companies to build thousands of railcars, some reportedly equipped with shackles, ostensibly to transport detainees.

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Ich bin ein Berliner (That goes for you too.)

As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.

– Justice William O. Douglas

I was born the very day World War II ended. My fellow postwar “Baby Boomers” grew up on old black and white documentaries of that war and the events leading up to it. But those films never really answered the most important question, a question that has nagged me, and I suspect most of my generation

How did Germany and the German people become the Mrs. O’Leary’s cow of an entire continent? How could a culture, re-formed during the Renaissance, create a horror like Auschwitz?

How does something that extraordinary happen? It’s a question that has not only burdened American Baby Boomers, but three generations of postwar Germans as well. But for them it’s much more than just a historical curiosity. For postwar Germans it’s also been a nagging sense of collective guilt – guilt about events they had nothing to do with, but guilt nonetheless. It’s a guilt built on the realization that their parents and grand parents either participated in, supported and/or enabled what happened over half a century ago — or, at the very least, did nothing to prevent or stop it.

Of course the fascist rulers of the Third Reich ruled with a heavy hand. So it’s not hard to understand why so many Germans simply laid low rather than oppose the regime.

“Nazi terror from above and the demise of the rule of law started just a few days after Hitler’s assumption of power in January 1933. The penalties of opposition became higher and higher. In the first nine months alone, at least 100,000 people, most of them leftist Germans, were thrown into hastily erected concentration camps. Others ended up in ordinary prisons and many died. Countless more were roughed up by rampaging brownshirts in broad daylight or taken into police custody on trumped-up political charges. By 1936, a brutal police state had penetrated virtually all spheres of life.” ( New York Times books.)

While the rules have tightened here since 9/11, we’ve not experienced anything near that scale. Speaking out is remains a survivable exercise.

Which begs the question; what will be our excuse? How will we explain the things we’ve allowed this administration to get away with — the torture, the “renditions,” the secret prisons, the warrant-less wiretapping, the lies we and our media allowed to stand? What are we going to tell our grand children when they ask us what the hell we were thinking, feeling and doing while all that was afoot?

I understand it’s against the rules of polite society to recklessly throw the “f” word around by comparing anything that’s happening today to the kind of atrocities that occurred under Hitler. It”s even worse to compare any contemporary American political/religious/social leader to Hitler.

So I won’t. I won’t go that far, because it hasn’t gone that far – yet.

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The Timeline to Tyranny
Ten advances towards the end of freedom and privacy in the United States

by Paul Joseph Watson
Prison Planet
Tuesday, August 7, 2007

The top ten advances towards tyranny in the United States during the tenure of the Bush administration, from the Patriot Act to the latest expansion of the illegal eavesdropping surveillance program.

1) The USA Patriot Act

The party line often heard from Neo-Cons in their attempts to defend the Patriot Act either circulate around the contention that the use of the Patriot Act has never been abused or that it isn’t being used against American citizens. Here is an archive of articles that disproves both of these fallacies.

The Patriot Act was the boiler plate from which all subsequent attacks on the Constitution were formed.

2) Total Information Awareness

“Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every Web site you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend — all these transactions and communications will go into what the Defense Department describes as “a virtual, centralized grand database,” infamously wrote New York Times writer William Safire, announcing the birth of Total Information Awareness, a kind of Echelon on steroids introduced a year after 9/11.

TIA was not canned, it was simply removed from the newspaper, renamed and continues to operate under a guise of different programs.

3) USA Patriot Act II

The second Patriot Act was a mirror image of powers that Julius Caesar and Adolf Hitler gave themselves. Whereas the First Patriot Act only gutted the First, Third, Fourth and Fifth Amendments, and seriously damaged the Seventh and the Tenth, the Second Patriot Act reorganized the entire Federal government as well as many areas of state government under the dictatorial control of the Justice Department, the Office of Homeland Security and the FEMA NORTHCOM military command.

The Domestic Security Enhancement Act 2003, also known as the Second Patriot Act is by its very structure the definition of dictatorship.

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