ZGram - October 7, 2004 - "Hornberger: The Hamdi Case Mocks Justice"

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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.



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