ZGram - October 7, 2004 - "Hornberger: The Hamdi Case Mocks
Justice"
zgrams at zgrams.zundelsite.org
zgrams at zgrams.zundelsite.org
Thu Oct 7 08:24:00 EDT 2004
Zgram - Where Truth is Destiny: Now more than ever!
October 7, 2004
Good Morning from the Zundelsite:
The Future of Freedom Foundation is one of those outfits, it seems,
that fears the Zundel Taint. For months, I have tried as politely as
I could to interest them in our legal struggle. I put its founder,
Jacob Hornberger, on my media list - he asked to be taken off. I
wrote letters explaining our plight - never the smallest response. I
sent Ernst's book to be reviewed - no comment. When I went East on
my ten-state tour, I asked if I could drop in for a visit. No
answer. Must be another "liberal" front set up for special interest
- or maybe get its funding from some well-known, deep pockets.
Regardless. I read their commentary and visit their site
periodically. You learn all kinds of things.
For instance, take the well-written essay below. Finally, I
understand why Ernst was never charged in Canada - a criminal charge
would have given him the right to a defense. After all, we still
have safeguards that are available to any real criminal: habeas
corpus, the presumption of innocence, being allowed to subpoena
important witnesses, knowing the charges and the chargees, oversight
by higher courts etc. All those goodies are available to any serial
killer - however, not when two ministers get leaned on by the
Canadian Jewish Congress or B'nai Brith. You find yourself in
Kafka-Land!
9/11 will bring some of those parallel court provisions to America,
if certain people have their way. Here is one case that makes that
point, to be found at http://www.fff.org/comment/com0410a.asp
[START]
The Hamdi Case Mocks Justice
by Jacob G. Hornberger,
October 4, 2004
Surrendering to the authority of the U.S. Supreme Court, the Pentagon
and the Justice Department have decided to release "unlawful
combatant" and accused "terrorist" Yaser Esam Hamdi from the bowels
of the Pentagon's military brig in South Carolina. Any day now, a
U.S. military plane is due to flew Hamdi to Saudi Arabia, where he
will be released from custody. In return, Hamdi has agreed to give up
his U.S. citizenship and has promised not to engage in terrorism
against the United States.
In July, I wrote an article entitled "Padilla, Hamdi, and Rasul:
Charge Them or Release Them," in which I argued that in the wake of
the Supreme Court's decision in Hamdi, the government should either
charge Hamdi and other accused terrorists with a crime or release
them.
The question is: Why did the government choose to release Hamdi
instead of charging him with a crime, such as terrorism or treason?
Keep in mind that in its ruling, the Supreme Court did not order the
government to release Hamdi. Instead, it ordered that the government
simply had to provide Hamdi, who was claiming to be innocent, with a
hearing so that the courts could determine how then to proceed.
A criminal indictment of Hamdi would obviously have run counter to
the Pentagon's claim of omnipotent power to label and punish "enemy
combatants" and "terrorists" without judicial interference. After
all, by its very nature an indictment places jurisdiction over an
accused in the hands of the U.S. federal court system.
Also, consider first how weak a charge of terrorism would have been
against Hamdi. According to U.S. officials, Hamdi surrendered to the
Northern Alliance while fighting in behalf of the Afghan government
(the Taliban) during the U.S. invasion of Afghanistan. The Northern
Alliance, you will recall, was a gang of murderers and rapists that
had been rebelling against the Taliban government long before the
9/11 attacks. When the U.S. government invaded Afghanistan, it
aligned itself with the Northern Alliance, claiming that the Taliban
government had knowingly harbored Osama bin Laden and members of
al-Qaeda, thereby supposedly conspiring to commit the 9/11 attacks.
Under the Geneva Convention, the U.S. government was required to
release its prisoners of war upon the defeat of the Afghan
government. Instead, what it did was announce that all Afghan
soldiers, by virtue of having fought for a government that had
effectively conspired to commit a terrorist act (i.e., knowingly
harboring the perpetrators of 9/11), were "enemy combatants" and
"terrorists" in the U.S. government's ongoing "war on terrorism."
Such a designation, U.S. officials claimed, entitled them to combine
Taliban soldiers with captured members of al-Qaeda and treat them all
the same - as "terrorists" or "enemy combatants" in the "war on
terror" who could be punished by the military without due process of
law, right to counsel, habeas corpus, and the other guarantees
enumerated in the Constitution and Bill of Rights.
How would Hamdi have defended himself in such a prosecution, even
assuming he was part of the Taliban army?
First, assuming that Hadmi even was a Taliban soldier, he would have
contended that as a foot soldier in war, under the terms of the
Geneva Convention U.S. officials were required to release him on the
cessation of hostilities against the Afghan government.
The government would have repeated the claim it made to the Supreme
Court - the Taliban government had conspired with al-Qaeda to commit
acts of terrorism, thereby converting foot soldiers in the Taliban
government into "enemy combatants" or "terrorists" in the "war on
terror."
Hamdi, on the other hand, would undoubtedly have put U.S. officials
in the uncomfortable position of having to disclose the evidence, if
any, that showed a conspiracy between the Taliban and al-Qaeda to
commit the 9/11 attacks, evidence that just might not exist. Don't
forget that in the buildup to the war, U.S. officials repeatedly
promised to release their evidence that the Taliban government was
involved in the 9/11 attacks but unfortunately their promise was
never fulfilled.
U.S. officials might also have argued that they were justified in
invading Afghanistan because the Taliban was refusing to turn bin
Laden over to the United States. That argument, however, would have
been problematic given that there was no extradition treaty between
Afghanistan and the United States. Keep in mind that in a similar
case involving an accused terrorist who has lived in Great Britain
for many years, U.S. officials are unlikely to accuse the British
goverment of having knowingly harbored a terrorist if British courts
refuse to extradite the accused to the United States.
What about treason? Why didn't U.S. officials charge Hamdi with
treason, as they did with John Walker Lindh, the "American Taliban"?
After all, both Hamdi and Lindh were American citizens and both of
them were presumably captured on the battlefield.
U.S. officials knew that Hamdi would vigorously meet the charge by
arguing that he never took up arms against the United States but
instead was simply continuing to help the Afghan government to
suppress a rebellion by a gang of murderers and rapists known as the
Northern Alliance. Moreover, given that the Congress never declared
war on Afghanistan, as required by the Constitution, Hamdi might well
have argued that he couldn't be convicted of treason for resisting
government conduct that was unlawful under the supreme law of the
United States.
The last thing that the president and Pentagon ever thought would
happen was that the judicial branch of government would interfere in
any way with U.S. military actions away from American shores. That's
in fact why the Pentagon set its prisoner gulag in Cuba and other
countries rather than here in the United States. That was also why
U.S. military officials sent Hamdi to their base at Guantanamo Bay
before they discovered he was an American citizen.
Prosecuting Hamdi would have enabled the federal judiciary to
directly rule that the invasion of Afghanistan was unlawful under the
supreme law of the land (the Constitution) and would have also
enabled the federal courts to discard the Pentagon's newly claimed
power of labeling and punishing people as "enemy combatants" and
"terrorists" in the "war on terror" without habeas corpus, jury
trials, counsel, and other aspects of due process of law. After all,
don't forget that the Pentagon is still exercising that power in the
Padilla, Rasul (Guantanamo), and al-Marri cases and it is still
claiming that it can employ such power against everyone else,
American and foreigner alike.
Thus, while the Pentagon is now claiming that the true reason that
it's now releasing Hamdi is that his value as a source of
intelligence has been exhausted, that claim is obviously nonsense.
The real reason for Hamdi's release is that the Supreme Court put the
quietus on the Pentagon's plan to incarcerate Hamdi forever, denying
him a jury trial, habeas corpus, and other aspects of due process of
law. The Pentagon also knew that if it continued litigating against
Hamdi, an adverse judicial ruling would likely have put a final death
knell on the Pentagon's hope of exercising such power against others,
including Americans.
Mr. Hornberger is founder and president of The Future of Freedom
Foundation. Send him email.
More information about the Zgrams
mailing list