Tuesday, February 10, 2009

No Law And Much Disorder

Franz Kafka's The Trial is a book about a man who is arrested on his 30th birthday, but never told what crime he has committed. His life then becomes a series of confusing, surreal and bizarre incidents. At the end, two men arrive to take him away to be executed, no trial. Presumably this was required reading in the Bush White House: a book premised on such fundamental injustice became the format for the new system of injustice in the United States.

In fact, the founders of this country did everything in their power to enshrine in our constitution the clear mandate that the government could not, should not, and never would kidnap people, falsely imprison them, hold them without charges or with false charges, deny them counsel and trial, torture them into signing worthless confessions, torment them until they went mad.

Yet these are exactly the practices used by the Bush administration and their corporate mercenaries all around the world, the private police state which could be turned on the citizens in a heartbeat, often used against completely innocent people, children, sometimes ending in their murder in dungeons far away from their own homes. These atrocities must be exposed and brought to the full light of day, and the people who committed these acts of barbarism must be held accountable. We need justice for the victims and truth for the world. And we need to protect ourselves against these monsters.

"So I remember every face
Of every man who put me here.
I see my light come shining
From the west unto the east
Any day now, any day now,
I shall be released

... Standing next to me in this lonely crowd
Is a man who swears he's not to blame
All day long I hear him shout so loud
Crying out that he was framed.

They say every man needs protection
They say every man must fall
So I swear I see my reflection
Someplace so high above this wall.

I see my light come shining
from the west unto the east
Any day now, any day now,
I shall be released."

("I Shall Be Released," Bob Dylan).
I wonder if there are any Dylan fans at Guantanamo. I wonder why nobody ever listens.

It is now widely known that the Bush regime sent private corporate mercenaries into other countries and kidnapped people, took them in ropes and chains and hoods, in the dark of night, to a series of secret black-hole prisons maintained by the most despicable dictators in the world, in cooperation with the CIA and the U.S. government, where these victims were tortured and sometimes killed. After awhile, some of them were removed to Guantanamo, hooded, put into orange jump suits, and left to die. The U.S. government invented wild and bizarre claims against these men, but over time most of those claims have been shown to be lies. When courts finally got the opportunity to review the situation, and demanded the government provide some information to support the claims, the government often simply dismissed the charges, but refused to release the prisoners.

My guess is they don't want the victims telling the world what has been done to them. Can anyone spell "International War Crimes Tribunals?" So they can either keep the innocent victims in isolation in prison for life, or kill them, or come up with some strange "legal" doctrine to prevent the victims from ever telling the world what really happened. Kind of like Michael Jackson paying millions to his victims to keep them from ever testifying at a criminal trial against him. Except worse.

Some of the people who were kidnapped and tortured by the Bush regime have filed lawsuits inside the U.S. against corporations who participated in the kidnapping and false imprisonment, seeking compensation for their damages. The Plaintiffs in one such suit are represented by the ACLU.

The case is entitled Binyam Mohamed vs. Jeppesen (9th Cir.) Case No. 5:07-CV-02798-JW, and extensive information about it is available at the ACLU website, link here:

The suit was filed against one of the private corporations that was involved in the kidnapping of people around the world. The U.S. government is not named as a defendant, but the Bush regime intervened in those lawsuits to try to shut them down. The Bush regime claimed first that every single fact or piece of evidence that would be presented by the Plaintiffs was a state secret, and could not be publicly disclosed. If the victims tell their story, what happened to them, they will be violating claimed "State Secrets," and probably that is a felony which will land them in Guantanamo again -- if they weren't still there. Neat trick to silence the victims.

Next the federal government also claimed at the trial court level that the entire lawsuit must be dismissed, because the only way the private corporations could "defend" against the charges would require that the government disclose state secrets. The trial court in one case unfortunately went along with this doublespeak, and the case is now up on appeal.

The lead Plaintiff, Binyam Mohamed, is a British citizen, originally from Ethiopia. He was kidnapped by the U.S. while he was in Pakistan, taken against his will in Jeppesen private planes to other countries where he was imprisoned and tortured on a daily basis, including being cut and having bones broken, and he finally was dumped by the U.S. government at Guantanamo. The U.S. Government came up with a scary list of charges against the guy, claiming he planned to detonate a "dirty bomb" (which would have been the "smoking gun" that created the "mushroom cloud"), and various other nebulous charges of being a terrorist.

When he finally got an attorney and got his case before a court, the judge was sufficiently concerned about evidence that he was tortured into confessing, that the judge demanded the government provide some evidence to support its claim. In order to avoid having it publicly shown that the government had no evidence against this man, the government instead simply dismissed all charges and claims against this man. But they still refuse to release him from prison in Guantanamo.

The conditions under which these men are held in Guantanamo are designed to break them down and drive them insane. And in many cases they have succeeded. No charges, no trials, no evidence, no witness, no defenses, no hope, no law, no justice.

If that's not the definition of a police state dictatorship, I don't know what is. We kidnapped this guy while he was in Pakistan, drug him from country to country, threw him into prisons to be tortured, dumped him in Guantanamo (presumably with an orange jump suit on his body and a hood over his head), made up a bunch of apparently baseless claims, and when the case got into a court the government dismissed everything when the judge asked "Where's the Beef," but the government still refuses to let him leave.

And now they want a court to say this guy can never publicly testify in a court of law about what our government has done to him. Kafka, where are you?

There was a hearing in the appeal, 9th Circuit, this week. Unfortunately the Obama administration did not change the Bush government position, and continued to argue that state secrets would be implicated. In other words, the federal government's position is that even if a private corporation did participate in kidnapping and false imprisonment, the victim should not be allowed to sue those private corporations because official government secrets might be disclosed in the trial.

That's a ridiculous argument on so many levels. I hope the attorneys for the Plaintiffs brought that to the attention of the court, but in case they didn't, here are a couple of reasons why that argument by the federal government should be rejected.

First, the victims of these crimes by the Bush regime (who apparently were innocent, since the government dismissed the charges against them), should be free to tell the entire world what happened to them, when it happened, who was present, who said what. To argue otherwise is to sanction and coverup criminal conduct and extreme injustice. Just think, the government is arguing that (1) they can kidnap, falsely imprison, and torture a completely innocent person; (2) the government dismisses all charges to avoid having to go to trial, but refuses to release the person; but (3) the innocent person apparently can be held in a foreign prison forever, and can never tell anyone what happened to them.

The government has no authority to prohibit speech. In particular, since these people were kidnapped in foreign countries, the U.S. government has no authority to prohibit a citizen of another country from telling the world what was done to them. So the story will come out, and the government has no legal ability to stop it. This is not really about state secrets. It is about using the law to guarantee the private contractors and paid mercenaries will never be held accountable for the injuries they have inflicted.

Even if there is a legitimate purpose for a state secret, the concept should never be used to cover up criminal activity by the government. Let's say Bush wiretapped every Democrat without warrants or court oversight; but when somebody sues him, he claims wiretapping is a state secret. If the conduct was illegal, it is not a legitimate state secret. The desire to keep it a secret is simply the desire to cover up illegal conduct by the government and to avoid liability for that conduct. It's like saying Bush can go hit someone in the face but prevent the person from ever going to court and telling what happened. "State secrets" is a doctrine that may allow protection for information but should not be used to cover up criminal conduct by the government.

Additionally, there is no defense to a charge of kidnapping, false imprisonment, or torture. the government argues that the corporation might have a "defense" to the claims, but cannot present the evidence to support the "defense" because the evidence includes state secrets. The only "defense" to these claims is really just the negation of one of the elements that the plaintiff must prove, that the action was done without the consent of plaintiff. Plaintiff must testify that these things were done against his will. After that, there is no defense if a jury finds that the Plaintiff's testimony was truthful.

What is the defense that the government suggests is available? It's a secret. They won't tell. So what theoretically is the defense? Mistake? That's no defense. If the government intended to kidnap, falsely imprison, and torture someone else, but got the wrong guy, that's no defense to a claim for damages by the guy they harmed.
The court should tell the government to either identify in general terms what defense they claim might be available, or should reject the absurd position in its entirety. These victims are entitled to compensation. It is shameful to see the continuing degregation of our legal system by the police state imposed by Bush, one in which there are no laws which apply to the federal government, no accountability to the innocent victims, no compensation to those injured or even murdered by the government. And certainly no truth and no justice.

The plaintiffs should be allowed to present their claim including their damage evidence, and go to a jury. If the corporate defendant claims there is some secret that would exonerate it, the court must ask whether that is likely. Or just generally require the defendant to hypothetically put forward examples of what possibly could be a "defense" to claims of kidnapping and torture.

I understand the Obama administration needs time to examine the countless claims that may be brought against the rogue regime of Bush & Co., and cannot simply waive in advance all claims of top secret or classified information. But they should start here with this case, and make a decision that favors disclosure and favors compensation for the victims. That's called justice, although the term has not been often used in recent years in this country.

And finally, the real interested parties here are the private mercenary, paid assassins, and contractors who have been brutalizing the rest of the world as Bush's goon squads. If the victims are free to sue in the U.S. for violence committed against them, and let a jury decide whether they should receive compensation, then the whole private war industry can be shut down. That is precisely why this ACLU lawsuit should be allowed to proceed. So we can put these private mercenary and war contractors out of business.

An extreme right-wing organization known as the Washington Legal Foundation (the "WLF") filed an amicus curiae brief in the lawsuit urging the court to uphold the dismissal of the case. Who is the Washington Legal Foundation, and what business is it of theirs? They are a pro-corporate legal group set up in 1977 to use the law to promote the development of the corporate state which we unfortunately have seen take over under Bush. They don't want corporations to be held liable for anything, anytime, anywhere. The WLF also filed a brief in the Hamdi vs. Rumsfeld case, arguing on behalf of the federal government that these prisoners in Guantanamo should never have access to any court or judge inside the U.S. Just let them sit in orange jump suits and hoods and rot in Cuba, no trial, no rights. Who's interests are they really protecting? Private corporations, of course.

(New York Times):
February 10, 2009
Obama Backs Off a Reversal on Secrets
SAN FRANCISCO — "In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration. "

"In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration’s “extraordinary rendition” program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations. ...."

“The attorney general has directed that senior Justice Department officials review all assertions of the state secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations,” he said. “It is vital that we protect information that, if released, could jeopardize national security.”

"The court papers describe horrific treatment in secret prisons. Mr. Mohamed claimed that during his detention in Morocco, “he was routinely beaten, suffering broken bones and, on occasion, loss of consciousness. His clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis. A hot stinging liquid was then poured into open wounds on his penis where he had been cut. He was frequently threatened with rape, electrocution and death.”

"Ben Wizner, a lawyer for the A.C.L.U., told the judges that many of the facts that the government is trying to keep secret are scarcely secret at all, since the administration’s rendition program and the particulars of many of the cases have been revealed in news reports and in the work of government investigations from around the world. “The only place in the world where these claims can’t be discussed,” Mr. Wizner said, “is in this courtroom.”

Guantanamo prisoner photos from:

I see my light come shining
from the west unto the east
Any day now, any day now,
I shall be released.

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