[Nettime-bold] Just unjust

["Ivo Skoric" <ivo@reporters.net>]

The victorious Northern Alliance conquered Afghanistan: Herat,  Kandahar, Mazar-i-sharif, Kabul - all key Afghan cities are now  more or less under their control. So, they can now proceed with the  favorite pastime of the Afghan warring factions: punishing the  enemy. Northern Alliance commander Dostun, reportedly, likes to  tie them for the tank tracks and then drive the tank around, until  they are certifiably grinded. Next: bombing Afghanistan to get rid of  Northern Alliance.

Taliban are in 'tactical retreat' as their one-eyed leader Mullah  Omar says, still bent on the destruction of the US, Allah willing.  This of course is just a double-speak for losing the war. OBL is  nowhere to be found, however. And the world anxiously awaits his  next video-letter. Although, this may be more difficult to deliver now  - since the US bombed Al Jazeera's Kabul satellite uplink station,  asuring the CNN's lasting world's supremacy as the news provider.

Meanwhile the Dept. of State provided INS with a list of Muslim  countries from which males of fighting age should be put under  scrutiny - whether they are trying to get to the US, or are already in  the US. Nationalist profiling? And the president signed an executive  order that, if read between the lines, says the following:
Any non-American citizen who George Bush personally doesn't like  from time to time can be 'determined' a terrorist, and thus subject  to arrest, indefinite detention and a military court trial, without a  right to appeal. Of course, this applies only if it is in the interest of  the United States. I.e. those like Dostun, will not be determined  terrorists right now, because they are allies of the U.S. in the  current war. But this may change in the future, of course, subject  to king W.'s disposition. Nice work on making the US look really  unfriendly to new immigrants - and that after more than two  centuries of inviting them over. Of course, the new executive order  was unwelcomed by practically the entire liberal America, human  rights groups, and even some conservative columnists...

ivo

>From LCHR:
"The way I read this, when the president points a finger at someone
and says he is a 'terrorist,' that person goes before a military
commission and Donald Rumsfeld sets the rules," said Elisa  Massamino of the Lawyers Committee for Human Rights. "This will  be seen as a kangaroo court. We are struggling with international  opinion to say this is a just war, and this has a great potential to  backfire against us."

>From AI:
Amnesty International is particularly concerned that the Military  Order:
- is discriminatory by affording foreign nationals a lower standard
of justice than US nationals;
- gives unfettered and unchallengeable discretionary power to the
executive to decide who will be prosecuted and under what rules,
as well as to review convictions and sentences. This is  inconsistent with the principle of the separation of the executive  and the judiciary;
- expressly bypasses the normal principles of law and rules of
evidence applied in the trials of people charged with criminal
offences in the US courts;
- provides no right of appeal against conviction or sentence to a
higher court, or access to redress for any human rights violations
that may occur during arrest, detention or prosecution;

Even Will Safire attacked the measure! ->
http://www.nytimes.com/2001/11/15/opinion/15SAFI.html
No longer does the judicial branch and an independent jury stand
between the government and the accused. In lieu of those checks
and balances central to our legal system, non-citizens face
an executive that is now investigator, prosecutor, judge, jury
and jailer or executioner. In an Orwellian twist, Bush's order
calls this Soviet-style abomination "a full and fair trial."

http://www.nytimes.com/2001/11/14/national/14DETA.html
http://www.washingtonpost.com/wp-dyn/articles/A23716- 2001Nov13.html
http://www.cnn.com/2001/US/11/13/inv.military.trials/index.html
http://www.usnewswire.com/topnews/Current_Releases/1113- 184.html

------- Forwarded Message Follows -------

Military Order on Detention, Treatment of Non-Citizens
U.S. Newswire
13 Nov 19:13

White House Military Order On Detention, Treatment and Trial Of
Certain Non-Citizens In The War Against Terrorism

To: National Desk
Contact: White House Press Office, 202-456-2580

WASHINGTON, Nov. 13 /U.S. Newswire/ -- The following was
released today by the White House:

MILITARY ORDER: DETENTION, TREATMENT, AND TRIAL OF CERTAIN
NON-CITIZENS IN THE WAR AGAINST TERRORISM

By the authority vested in me as President and as Commander in
Chief of the Armed Forces of the United States by the Constitution
and the laws of the United States of America, including the
Authorization for Use of Military Force Joint Resolution (Public
Law 107-40, 115 Stat. 224) and sections 821 and 836 of title 10,
United States Code, it is hereby ordered as follows:

Section 1. Findings.

(a) International terrorists, including members of al Qaida,
have carried out attacks on United States diplomatic and military
personnel and facilities abroad and on citizens and property within
the United States on a scale that has created a state of armed
conflict that requires the use of the United States Armed Forces.

(b) In light of grave acts of terrorism and threats of terrorism,
including the terrorist attacks on September 11, 2001, on the
headquarters of the United States Department of Defense in the
national capital region, on the World Trade Center in New York, and
on civilian aircraft such as in Pennsylvania, I proclaimed a
national emergency on September 14, 2001 (Proc. 7463, Declaration
of National Emergency by Reason of Certain Terrorist Attacks).

(c) Individuals acting alone and in concert involved in
international terrorism possess both the capability and the
intention to undertake further terrorist attacks against the United
States that, if not detected and prevented, will cause mass deaths,
mass injuries, and massive destruction of property, and may place
at risk the continuity of the operations of the United States
Government.

(d) The ability of the United States to protect the United
States and its citizens, and to help its allies and other
cooperating nations protect their nations and their citizens, from
such further terrorist attacks depends in significant part upon
using the United States Armed Forces to identify terrorists and
those who support them, to disrupt their activities, and to
eliminate their ability to conduct or support such attacks.

(e) 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
order pursuant to section 2 hereof to be detained, and, when tried,
to be tried for violations of the laws of war and other applicable
laws by military tribunals.

(f) Given the danger to the safety of the United States and the
nature of international terrorism, and to the extent provided by
and under this order, I find consistent with section 836 of title
10, United States Code, that it is not practicable to apply in
military commissions under this order the principles of law and the
rules of evidence generally recognized in the trial of criminal
cases in the United States district courts.

(g) Having fully considered the magnitude of the potential deaths,
injuries, and property destruction that would result from potential
acts of terrorism against the United States, and the probability
that such acts will occur, I have determined that an extraordinary
emergency exists for national defense purposes, that this emergency
constitutes an urgent and compelling govern-ment interest, and that
issuance of this order is necessary to meet the
emergency.

Sec. 2. Definition and Policy.

(a) The term "individual subject to this order" shall mean any
individual who is not a United States citizen with respect to whom
I determine from time to time in writing that:

(1) there is reason to believe that such individual, at the
relevant times,

(i) is or was a member of the organization known as al Qaida;

(ii) has engaged in, aided or abetted, or conspired to commit,
acts of international terrorism, or acts in preparation therefor,
that have caused, threaten to cause, or have as their aim
to cause, injury to or adverse effects on the United
States, its citizens, national security, foreign policy,
or economy; or

(iii) has knowingly harbored one or more individuals described
in subparagraphs (i) or (ii) of subsection 2(a)(1) of
this order; and

(2) it is in the interest of the United States that such
individual be subject to this order.

(b) It is the policy of the United States that the Secretary of
Defense shall take all necessary measures to ensure that any
individual subject to this order is detained in accordance with
section 3, and, if the individual is to be tried, that such
individual is tried only in accordance with section 4.

(c) It is further the policy of the United States that any
individual subject to this order who is not already under the
control of the Secretary of Defense but who is under the control of
any other officer or agent of the United States or any State shall,
upon delivery of a copy of such written determination to such
officer or agent, forthwith be placed under the control of the
Secretary of Defense.

Sec. 3. Detention Authority of the Secretary of Defense. Any
individual subject to this order shall be --

(a) detained at an appropriate location designated by the
Secretary of Defense outside or within the United States;

(b) treated humanely, without any adverse distinction based on
race, color, religion, gender, birth, wealth, or any similar criteria;

(c) afforded adequate food, drinking water, shelter, clothing,
and medical treatment;

(d) allowed the free exercise of religion consistent with the
requirements of such detention; and

(e) detained in accordance with such other conditions as the
Secretary of Defense may prescribe.

Sec. 4. Authority of the Secretary of Defense Regarding Trials
of Individuals Subject to this Order.

(a) Any individual subject to this order shall, when tried, be
tried by military commission for any and all offenses triable by
military commission that such individual is alleged to have
committed, and may be punished in accordance with the penalties
provided under applicable law, including life imprisonment or
death.

(b) As a military function and in light of the findings in
section 1, including subsection (f) thereof, the Secretary of
Defense shall issue such orders and regulations, including orders
for the appointment of one or more military commissions, as may be
necessary to carry out subsection (a) of this section.

(c) Orders and regulations issued under subsection (b) of this
section shall include, but not be limited to, rules for the conduct
of the proceedings of military commissions, including pretrial,
trial, and post-trial procedures, modes of proof, issuance of
process, and qualifications of attorneys, which shall at a minimum
provide for --

(1) military commissions to sit at any time and any place,
consistent with such guidance regarding time and place as the
Secretary of Defense may provide;

(2) a full and fair trial, with the military commission sitting
as the triers of both fact and law;

(3) admission of such evidence as would, in the opinion of the
presiding officer of the military commission (or instead, if any
other member of the commission so requests at the time the
presiding officer renders that opinion, the opinion of the
commission rendered at that time by a majority of the commission),
have probative value to a reasonable person;

(4) in a manner consistent with the protection of information
classified or classifiable under Executive Order 12958 of April 17,
1995, as amended, or any successor Executive Order, protected by
statute or rule from unauthorized disclosure, or otherwise
protected by law, (A) the handling of, admission into evidence of,
and access to materials and information, and (B) the conduct,
closure of, and access to proceedings;

(5) conduct of the prosecution by one or more attorneys
designated by the Secretary of Defense and conduct of the defense
by attorneys for the individual subject to this order;

(6) conviction only upon the concurrence of two-thirds of the
members of the commission present at the time of the vote, a
majority being present;

(7) sentencing only upon the concurrence of two-thirds of the
members of the commission present at the time of the vote, a
majority being present; and

(8) submission of the record of the trial, including any
conviction or sentence, for review and final decision by me or by
the Secretary of Defense if so designated by me for that
purpose.

Sec. 5. Obligation of Other Agencies to Assist the Secretary of
Defense.

Departments, agencies, entities, and officers of the United
States shall, to the maximum extent permitted by law, provide to
the Secretary of Defense such assistance as he may request to
implement this order.

Sec. 6. Additional Authorities of the Secretary of Defense.

(a) As a military function and in light of the findings in
section 1, the Secretary of Defense shall issue such orders and
regulations as may be necessary to carry out any of the provisions
of this order.

(b) The Secretary of Defense may perform any of his functions or
duties, and may exercise any of the powers provided to him under
this order (other than under section 4(c)(8) hereof) in accordance
with section 113(d) of title 10, United States Code.

Sec. 7. Relationship to Other Law and Forums.

(a) Nothing in this order shall be construed to --

(1) authorize the disclosure of state secrets to any person not
otherwise authorized to have access to them;

(2) limit the authority of the President as Commander in Chief
of the Armed Forces or the power of the President to grant
reprieves and pardons; or

(3) limit the lawful authority of the Secretary of Defense, any
military commander, or any other officer or agent of the United
States or of any State to detain or try any person who is not an
individual subject to this order.

(b) With respect to any individual subject to this order --

(1) military tribunals shall have exclusive jurisdiction with
respect to offenses by the individual; and

(2) the individual shall not be privileged to seek any remedy or
maintain any proceeding, directly or indirectly, or to have any
such remedy or proceeding sought on the individuals behalf, in (i)
any court of the United States, or any State thereof, (ii) any
court of any foreign nation, or (iii) any international tribunal.

(c) This order is not intended to and does not create any right,
benefit, or privilege, substantive or procedural, enforceable at
law or equity by any party, against the United States, its
departments, agencies, or other entities, its officers or
employees, or any other person.

(d) For purposes of this order, the term "State" includes any
State, district, territory, or possession of the United States.

(e) I reserve the authority to direct the Secretary of Defense,
at any time hereafter, to transfer to a governmental authority
control of any individual subject to this order. Nothing in this
order shall be construed to limit the authority of any such
governmental authority to prosecute any individual for whom control
is transferred.

Sec. 8. Publication.

This order shall be published in the Federal Register.

GEORGE W. BUSH

THE WHITE HOUSE,
November 13, 2001.


Copyright 2001, U.S. Newswire

Ivo Skoric
1773 Lexington Ave
New York NY 10029
212.369.9197
ivo@balkansnet.org
http://balkansnet.org

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