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CIA Rendition: US Court Throws Out Torture Case, Citing State Secrets September 9, 2010

Posted by rogerhollander in Criminal Justice, Human Rights, Torture.
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(Roger’s note: this court decision is a great disappointment for those of us who wish to see accountability and justice for the Bush administration’s barbarous rendition and torture program and the Obama administration’s criminal cover-up complicity.  Unfortunately, when this gets to the Supreme Court we can expect a similar outcome.  Obama picked Judge Kagan for her demonstrated Quisling like attitude to executive privilege; and it will be a huge surprise if she doesn’t uphold the bogus application of the state secrets doctrine.  Obama promised change (a cruel joke) and transparency and gives us more of the same.  Only History will judge.)

Wednesday 08 September 2010

by: Warren Richey  |  The Christian Science Monitor | Report

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(Image: Jared Rodriguez / t r u t h o u t; Adapted: remuz [Jack The Ripper], gnackgnackgnack)

Washington – A federal appeals court in San Francisco on Wednesday threw out a lawsuit seeking to hold a government contractor partly responsible for a secret CIA program to whisk terror suspects to undisclosed prisons overseas for brutal interrogations.

The Ninth US Circuit Court of Appeals voted 6 to 5 to dismiss the lawsuit filed on behalf of five individuals who charged they were seized and imprisoned without legal process, and tortured at the behest of the Central Intelligence Agency.

The appeals court action ends the litigation before it was able to formally begin. The majority judges said they felt compelled to throw the suit out under legal precedents upholding the so-called state secrets doctrine.

The plaintiffs sued Jeppesen Dataplan, a Boeing subsidiary, that allegedly provided air transport and other international logistical support to the CIA operation. The CIA program, known as “extraordinary rendition,” was instituted during the Bush administration and has continued with some changes under President Obama.

Although the executive branch won in court, the majority judges were troubled by their ruling.

“After much deliberation, we reluctantly conclude … the plaintiff’s action must be dismissed,” wrote Judge Raymond Fisher.

The plaintiffs’ lawyer, Ben Wizner of the American Civil Liberties Union, said it was a sad day. He pledged to appeal to the US Supreme Court.

“To date, not a single victim of the Bush administration’s torture program has had his day in court,” Mr. Wizner said in a statement. “If today’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers.”

Richard Samp, a lawyer with the conservative Washington Legal Foundation, praised the decision.

“The judicial branch is simply not the appropriate forum for airing these types of issues,” he said in a statement. “The CIA could not maintain the confidentiality of its affairs if those who oppose its policies were free to air their opposition in an open courtroom.”

Under the state secrets doctrine, courts have generally granted deference to executive branch claims that certain litigation may involve highly sensitive US government information which, if disclosed, would cause significant damage to national security.

The Bush administration argued that Mohamed v. Jeppesen was just such a case. The Obama administration continued with that argument.

The majority judges said because of state secrets concerns they were precluded from explaining in detail why the case could not move forward without harming national security. But they said they were convinced such harm would result.

“Any effort by Jeppesen to defend [against the suit] would unjustifiably risk disclosure of state secrets,” Judge Fisher wrote.

In a dissent joined by four other judges, Judge Michael Hawkins said the court was wrong to dismiss the entire lawsuit at such an early stage. He said the case should be remanded to a federal judge to determine to what extent actual evidence in the case might raise a threat of disclosing state secrets.

Hawkins acknowledged that the state secrets doctrine is an established precedent. But he said the privilege need not be so broadly enforced.

“The doctrine is so dangerous as a means of hiding governmental misbehavior under the guise of national security, and so violative of common rights of due process, that courts should confine its application to the narrowest circumstances that still protect the government’s essential secrets,” he wrote.

The majority concluded its opinion with a quasi apology to the plaintiffs. “Our holding today is not intended to foreclose – or to prejudge – possible nonjudicial relief, should it be warranted for any of the plaintiffs,” Judge Fisher said.

He said in the interest of justice the government might examine the plaintiffs’ claims and – if warranted – award reparations to them. In addition, he suggested there might be a Congressional investigation and remedial action by lawmakers.

“It should be a rare case when the state secrets doctrine leads to dismissal at the outset of a case,” Fisher wrote. “This is one of those rare cases.”

Judge Hawkins countered in his dissent that the majority’s suggested alternative remedies undercut the concept of checks and balances. “Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role,” he said, “but also deprive the plaintiffs of a fair assessment of their claims by a neutral arbiter.”

 

The Constitution is Unconstitutional August 22, 2008

Posted by rogerhollander in Political Essays (Roger), The Constitution is Unconstitutional.
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(I recently got a hold of a copy of the United States Constitution, and I read it from cover to cover – it’s not that long a document.  I remember having had to memorize the preamble when I was a student.  It is quite an idealistic statement; and it is too bad that neither the Constitution itself nor the general thrust of our nation’s history come near to living up to it.  In my humble opinion, of course.)

 

 

They bought and sold human flesh, had a profound mistrust of anyone who didn’t own real property, and were misogynist to the core.  Their only redeeming characteristics were a healthy disdain for organized religion and feudal nobility.  Surely you will recognize their names: Nicholas Gilman, Jonathan Dayton, George Clymer, Richard Basset, Daniel of St. Thomas Jenifer, and Richard Dobbs Spright, et. al. 

 

Stumped?

 

Signers of the Constitution of the United States.  Our revered Founding Fathers.

 

In high school they had us memorize the Preamble to the Constitution, an eminently noble document; and I can only speculate whether it might have been the intention of its authors, perhaps unconsciously, for its stunning idealism to lull the reader into a state of tranquility so as to lose sight of some of what followed.

 

It jumps right out at you on page one of the United States Constitution – Article I, Section 2, “Representatives and direct Taxes shall be apportioned among the several states … according to their respective numbers, which shall be determined by adding to the whole Number of free Persons …three fifths of all other Persons.” “Other Persons?”  What could our noble Founding Father possibly have meant by that?  Oh, yes, I forgot: slaves.  Today we call them Afro-Americans.

 

The meaning and impact of counting of slaves (those “Other Persons” so dearly important to the nation’s economy at the time) is often misunderstood.  It is not, as it appears on the surface, that slaves were considered two fifths less than human.  It’s worse than that.  Much worse.  The Constitution allocated to its resident slaves not three-fifths, but rather zero rights.  As human beings they were “worth” nothing, not three fifths.  The reason they jacked them up to three fifths of a person in the Constitution was only so that those who governed the Southern slave states –their Masters – could have a larger number of representatives in the House of Representatives (where a state’s number of representatives is determined by that state’s population).  This, of course, had the effect of giving the Southern slave states more political power.  Three fifths of the slaves’ bodies were thereby enshrined in the Constitution so that those who rule them could have more power to deny their very existence as human beings, consider them property, and deny human rights not only to their bodies, but to their minds and souls as well.

 

It was a classic and tragic case of adding insult to injury.

 

The Civil War and the Fourteenth Amendment put an end to that little indignity, but, there are others.  The disenfranchisement of women, for example, until the Nineteenth Amendment put an end to that political peccadillo in 1920, seven years after the guys gave themselves the right to dun our paychecks with the Sixteenth Amendment.  You can see where the priorities lie.

 

Whereas in recent years Americans have become painfully aware of the Constitutionally ordained method for choosing their president through the arcane and Byzantine Electoral College and the winner-take-all principle of presidential primaries (thereby in effect potentially disenfranchising up to 49.9% of the voters in any given state), there exists what in my estimation is the most unjust and undemocratic principle written into our Constitution, and it is still there, and hardly anyone ever notices the implications, and it is virtually unamendable.  I refer to the institution of the Senate of the United States of America.

 

There it is again in Article I.  Section 3 reads simply, “The Senate of the United States shall be composed of two Senators from each State …”   Fifteen of the most undemocratic words you will ever read.  Perhaps only second to the President him or herself (some day), the U.S. Senate has emerged as one of the most powerful institutions in the country.  Its responsibilities are roughly parallel to those of the House of Representatives (known, significantly, as the “lower” house), but its powers to “advise and consent” on Presidential appointments give the Senate a great deal of extra leverage.  And given that there are nearly five times the number of Representative than Senators, it gives each individual Senator just that much more power.

 

Consider how radically undemocratic is the United States Senate.  California with a population of roughly thirty five million gets two measly Senators.  One for every seventeen and a half million citizens.  Wyoming, with its population of a half million, gets the same number as senators as California, one for every two hundred and fifty thousand citizens.  That gives the Wyoming voter seventy times more senatorial power than the California voter.  Not exactly consistent with the “one person one vote” principle.  How this works in practice is even scarier.  Traditionally Southern and rural states have been able to frustrate the will of the majority of Americans through its manipulation and control of the Senate.  Their members accrued seniority and exercised power though the Senate’s inviolable Old Boy seniority system.  This phenomenon was to a great extent responsible, for example, of maintaining racial segregation in the United States from the end of Reconstruction in the 1870s until the Supreme Court stepped in 1954, and the Civil Rights Movement pressured the Congress into enacting the Civil Rights Act of 1964.

 

That has been the practice.  In theory it could be even worse.  The population of the United States is approximately 290 million.  The largest 25 states (population-wise) make up a full 240 million of that (the population of California and Texas and New York combined is roughly equivalent to the population of the 32 smallest states: in the Senate, 6 votes versus 64).  Therefore, representatives (overwhelmingly male and White to this day) of little more than 50 million Americans could in theory constitute a majority in the Senate and frustrate the will of the remaining 240 million.  While it may never reach this extreme, it has and will continue to give drastically disproportionate power to a minority of Americans.

 

And guess what?  It will probably never change.  The British and Canadians, our two closest ideological neighbors, have made the British House of Lords and the Canadian Senate – their two “upper houses” – into largely ceremonial bodies.  We could do the same, you exclaim.  Thank God for the Amendment provision.  Think again.  I am no constitutional scholar, but what can Article V. of the Constitution mean if not an undemocratic Senate in perpetuity?  It reads, “…no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” (my emphasis).  Can you imagine in your wildest dreams a State giving up its Senatorial votes?  I have nothing against Wyoming, but really.

 

I choose to judge the Constitution by its own Preamble, which reads in part, “We the people of the United States, in order to … establish Justice.”  They capitalized “Justice.”  A nice touch, but I would prefer the substance to the image.

 

You will not find political parties mentioned in the Constitution, but they soon appeared in full force with the election of the second U.S. President, John Adams in 1796.  By and large there have always been two predominant parties, although they have changed names and philosophies over the years.  This has had the effect of limiting choice and discriminating against visionary points of view.  It certainly has favored moneyed interests, given the huge costs of election campaigning, and the lack of teeth in campaign spending legislation.  The Founding Fathers would have had no problem with this.  They were big on property and money.  It just took them a few years to get their act together.  Historians and politicians and pundits speak proudly of our two party system.  Along with our perfect self-correcting Constitution, they say, it provides for stability. 

 

Oh, in this era of Clintonian “Republicrat-ism” and King Bush the Second’s hijacking of the presidency, how one longs for a little political instability.

 

And, what is more, nowhere in the Constitution do we see the words “checks and balances,” that principle we were taught in high school civics classes that the Constitution reflects in creating the three branches of government: Executive, Legislative, and Judicial.  This is the principle that is supposed to guarantee democracy forever and make revolutionary change anachronistic. What it doesn’t account for is a single political party gaining effective control over the three branches.  It’s bad enough when a single party controls both the Congress and the Presidency, which combine to make and enforce our Laws, including laws about how we vote, how electoral districts are drawn, how population is counted, etc. (was anyone surprised that President George W. Bush didn’t veto the redistricting legislation that gave the Republican party additional seats in his home state of Texas?).  But when the Supreme Court is in their back pocket as well (in 2000 they stopped the vote count in Florida when their boy was ahead), is there really that much left of our treasured Constitutional Democracy?

 

Our country was born in revolution.  Today “revolution” is a dirty word.  We have been indoctrinated into believing that our Constitution protects us forever and ever against tyranny and injustice. 

 

Here’s what the Declaration of Independence says:

 

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness … That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness … when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

 

Did I read the word “duty?”  Did I just see the Declaration of Independence telling us that revolution is not only the People’s right but their duty?

 

Al Gore, not exactly a wild-eyed left wing radical communist, in a Martin Luther King Day speech a couple of years ago, made just that argument about the current George W. Bush government, that it may have rendered our democracy despotic beyond democratic repair.  It is a speech worth reading.

 

Many treat the United States Constitution the way fundamentalist Christians treat the Bible, that is, as an infallible document.  This ignores the reality that it is human beings collectively who, for better or for worse, control their own destiny.  As Shakespeare said, “It is not in the stars.”  No political system, including and especially democracy in a world of capitalist economics, is infallible.  The deeper truth that we must not forget is that the price of liberty lies not in a piece of paper, however elegant, but in eternal vigilance.

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