Dec 29 2008

The world is crazy!

Published by under Israel,Opinion,Thoughts

Israel has been striking back at Hamas institutions in the Gaza strip in retaliation for continual rocket fire on Israeli communities that border the Gaza strip. And yet in Europe there are loud and vociferous protests against Isreal. It wasn’t Israel that started this…Hamas is directly to blame for this exchange and yet the rest of the world immediately goes and condemns Israel. Why?

I mean, I expect the Arab street to rally behind the Gazans and Hamas as they see this is “naked Israeli agression” and the Muslim religious leaders are calling for vengence against Israel and Israeli targets worldwide, but what I can’t understand is how the world can say that it’s ok for rockets to fall, day-in and day-out, on Israeli communities — where people live their daily lives in terror — and when Israel tries to put an end to these attacks that it is the aggressor. Typically the words thrown out by the left wing groups are that Israel is committing “crimes against humanity” and that it’s violating International law. But let’s look at the law.

First off, the shelling of Israeli civilian population centers near Gaza has been going on for well over 8 years. Hamas, a terrorist organization, started the latest round of their aggression through the initial use of armed force against Israeli civilians and non-combatant Jews once the “truce” ended in November. This is a clear violation of the United Nations charter and is evidence of agression which, by International Law, is defined as the “the most serious and dangerous form of illegal use of force” (UN Resolution 3314 (XXIX). Definition of Aggression). The UN further demands that states combat the use of terrorism and reaffirm “unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed.” (UNSC resolutions 1269, 1368,1373, 1377).

Israel’s response is further supported by statements made by the former President of the International Court of Justice, Judge Stephen Schwebel, who noted that

[i]n the case of conduct adopted for punitive purposes…it is self-evident that the punitive action and the wrong should be commensurate with each other, but in the case of action taken for the specific purpose of halting and repelling an armed attack (emphasis added), this does not mean that the action should be more or less commensurate with the attack. Its lawfulness cannot be measured except by its capacity for achieving the desired result.

(Schwebel, Judge Stephen, Nicaragua vs. U.S., 1986 I.C.J. 14, 259 (June 27), quoted in “Draft Articles on State Responsibility – Comments of the Government of the United States of America”, U.S. State Department, http://www.state.gov/documents/organization/28993.pdf, March 1, 2001)

Israel is responding to continuous provocation by Hamas from Gaza and it is responding appropriately in order to end the rocket attacks of the past 8 years. It never ceases to amaze me that the European public is so willing to cry out in outrage over the fact that Israel is doing the very thing that they would demand if it was, say, Russia lobbing missles over it’s border into Europe. When will the world see that the Palestinian Arabs (and Arabs elsewhere in the region) are not interested in a true and just peace with Isreal? They are only interested in the eradication of Israel and probably Jews worldwide!

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Aug 08 2008

Where is The Justice

Published by under Thoughts

“Justice will only exist where those not affected by injustice are filled with the same amount of indignation as those offended” – Plato

I am considerably bothered by the recent conviction of Salim Hamdan by the military tribunal in Guantanamo Bay. The tribunal found Mr. Hamdan guilty of material support of Al Qaeda by working as Osama bin Laden’s driver in Afghanistan where Mr. Hamdan was captured in 2001. He’s been sitting in Guantanamo Bay’s prison for the past 6 years and has finally had his day in court — where, predictably, he was found guilty. Why predictably? Well it all goes down to the testimony of the former chief prosecutor for these commission trials – Air Force Colonel Morris Davis.

During the trial of Mr. Hamdan, Col. Davis acted as a witness for the defense. Col. Davis noted significant flaws in the whole process as well as potential impropriety. One of the most scathing accusations is his testimony of a meeting between himself and Department of Defense General Counsel William Haynes when Col. Davis interviewed for the Chief Prosecutor position in August of 2005. During the interview Col. Davis told Mr. Haynes that

the military commission trials “are historic. These trials will be the Nuremburg of our time. If there are some acquittals that would perhaps not be a bad thing.” Col. Davis says Mr. Haynes became visibly agitated at the mention of acquittals and stated: “We can’t have acquittals. We’ve been holding these guys for years. We can’t have acquittals. We’ve got to have convictions.”

(“Salim Ahmed Hamdan and Col. Morris Davis v. Military Commission System“, American Constitution Society for Law and Policy Blog, April 28, 2008 )

Col. Davis also wrote an editorial in the Los Angeles Times back in December of 2007 in which he noted that the Convening Authority, a political appointee with no equivalent in the civilian court system here in the U.S. and who is supposed to be objective, was actually showing partiality to the prosecution. The convening authority makes many important decisions during the tribunal process such as which charges filed by the prosecution go to trial and which are dismissed, choosing who serves on the jury, and deciding whether to approve requests for experts and reassessing findings of guilt and sentences. (Morris, Davis, “AWOL Military Justice“, The Los Angeles Times, December 10, 2007) In the case of the military tribunals at Guantanamo Bay, Col. Davis wrote in his editorial that Major General John Altenburg, acting as the convening authority, kept his distance from the prosecution to preserve the authority’s impartiality. However, Susan Crawford, who was appointed by the Secretary of Defense to replace Maj. Gen. Altenburg,

had her staff assessing evidence before the filing of charges, directing the prosecution’s pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things

(Morris, Davis, “AWOL Military Justice“, The Los Angeles Times, December 10, 2007)

Col. Davis lists out other reasons for his resignation as the Chief Prosecutor at the military tribunals in Guantanamo Bay. These include the fact that the trials were being held behind closed doors and noted that “even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors,” “Getting evidence through the classification review process to allow its use in open hearings is time-consuming, but it is time well spent,” and that “transparency is critical.” (Morris, Davis, “AWOL Military Justice“, The Los Angeles Times, December 10, 2007). Finally, Col. Davis cites the fact that he was placed in a chain of command under Department of Defense General Counsel William J. Haynes who is controversial for the fact that he authorized the use of the aggressive interrogation techniques that could be considered torture. Col. Davis notes

I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned. Haynes and I have different perspectives and support different agendas, and the decision to give him command over the chief prosecutor’s office, in my view, cast a shadow over the integrity of military commissions. I resigned a few hours after I was informed of Haynes’ place in my chain of command.

(Morris, Davis, “AWOL Military Justice“, The Los Angeles Times, December 10, 2007)

I don’t question that Mr. Hamdan was Osama bin Laden’s driver in Afghanist. But the experience of Col. Davis and how the administration found significant political value in the military tribunals makes me question their impartiality and the possiblity of true justice being served.

Not only were administration officials concerned about winning convictions, but according to Col. Davis, various officials also saw political value in filing charges before the mid-term and presidential elections. At a meeting in September 2006, Col. Davis says Deputy Secretary of Defense Gordon England told him that “there could be some really strong political value in charging some of the high value detainees before the election.”

(“Salim Ahmed Hamdan and Col. Morris Davis v. Military Commission System“, American Constitution Society for Law and Policy Blog, April 28, 2008 )

Mr. Hamdan was found guilty of the lesser charge material support of terrorism or a terrorist organization and the jury sentenced him to 66 months. With credit for time served he could be released before the end of this year. However, NPR’s John McChesney reported that despite the fact that Mr. Hamdan will have served his time in prison by the end of this year, the government may still decide to continue to hold him. (“U.S. Could Continue Holding bin Laden Driver“, NPR, August 8 2008 ) To do this the government would simply classify him as an enemy combatant. If that were to happen then justice in this country will have received a terrible blow. Our system is based on the concept that once a prisoner has served his sentence then for what he was convicted they are entitled to be set free. They have, in essence, paid their debt. But to continue holding someone in prison for an indeterminate time after their punishment has been completed could be a violation of their human rights as well as our own Constitution’s injunction on cruel and unusual punishment. This process will end up bringing us down to the level of the China or Myanmar in terms of human rights abuse and will result in significant loss of our moral authority. We must make sure that Justice, not just for Mr. Hamdan but for all those undergoing trial in Guantanamo Bay, is delivered fairly and impartially. Remember, Justice is supposed to be blind.

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