November 2001 - cypherpunks-legacy

Gross Usurpation of Power
by Jei 15 Nov '01

15 Nov '01

<http://www.lewrockwell.com/dieteman/dieteman103.html> Gross Usurpation of Power by David Dieteman The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. ~ Ex parte Milligan, 71 U.S. 2 (1866) A great many conservatives have uncritically accepted the expansion of government powers in the wake of the terrible events of September 11. They have acquiesced in the creation of the Bureau of Homeland Security, an entity which would have made the Founding Fathers cringe, if not revolt (they revolted against much less). One hopes that such alleged conservatives, who profess to value limited government, the rule of law, and liberty, will be disturbed by one of President Bush's recent actions. On November 13, President Bush signed an order allowing military trials of terrorism suspects, rather than civil courts. As the Washington Post reports, The presidential directive, signed by Bush as commander in chief, applies to non-U.S. citizens arrested in the United States or abroad. The president himself will decide which defendants will be tried by military tribunals. Defense Secretary Donald H. Rumsfeld will appoint each panel and set its rules and procedures, including the level of proof needed for a conviction. There will be no judicial review. The only review will be by the U.S. President and the Secretary of Defense. No American court, and no international tribunal, will be able to review the acts of this Star Chamber. The administration seeks to avoid the Constitution by applying the order only to foreigners, rather than to U.S. citizens. Guess what: that's largely unconstitutional as well. The guarantee of due process of law is universal in its application to all persons within the territorial jurisdiction of a state or the United States, without regard to any differences of race, color, or nationality, when they have come within the territory of the United States and have developed substantial connections with this country. 16B Am. Jur.2d Constitutional Law § 928; U.S. v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 1064 (1990). As a matter of international law, it may be argued that, if the foreign state consents to American exercise of such power overseas, i.e., if Afghanistan consents to an American Star Chamber handing out death sentences to Afghans, then such power is legitimately exercised. This would be a matter of treaty, or other such international agreement. Such a new policy, however, would be contrary to what is arguably an evolving norm of international law, i.e., utilizing international tribunals to try war criminals. In the case of Nuremberg, Rwanda, and the former Yugoslavia, international tribunals were established to handle war crimes. These tribunals have been attacked as conducting mere show trials, which is bad enough. The Bush administration complains, however, that international tribunals do not administer the death penalty. This is disturbing, even if possibly allowed under international law. Recall that last week, the Justice Department authorized the wiretapping of conversations between prisoners and their attorneys. So much for attorney-client privilege. What's next: wiretaps in the confessional? And another question: remember Senator Kerrey? So much for quick justice when an American is accused. What if Vietnam were a superpower seeking to impose a Star Chamber on a feeble and impoverished United States? Does might make right? To some people, it seems that it does. Note: with respect to Senator Kerrey, and to the Afghan war, I continue to have grave reservations about international criminal tribunals. A military tribunal would be appropriate for Kerrey because he is accused of crimes while a member of the armed forces; that is within the jurisdiction of a military tribunal. In addition, I would not object if those foreigners seized by the United States in the war on terrorism were tried in U.S. civil courts; that is within the jurisdiction of the civil courts. The problem with President Bush's order is that it simply ignores the Constitutional limits on executive power. The due process of law is not given when the Fourth, Fifth, and Sixth Amendments are simply ignored. As Justice Davis wrote in Ex parte Milligan, 71 U.S. 2 (1866), Certainly no part of judicial power of the country was conferred on them, because the Constitution expressly vests it "in one supreme court and such inferior courts as the Congress may from time to time ordain and establish," and it is not pretended that the commission was a court ordained and established by Congress. They cannot justify on the mandate of the President, because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws, and there is "no unwritten criminal code to which resort can be had as a source of jurisdiction." To be blunt, President Bush has no authority under the U.S. Constitution to make such an order. None. Zip. Zero. Zilch. Nada. Albert Gonzales, a former Texas Supreme Court judge, claimed that there was precedent for the order. Indeed there is. It is bad precedent. Abraham Lincoln famously tried opponents of the War Between the States in military courts. The United States Supreme Court unambiguously declared in Ex parte Milligan, however, that it was unconstitutional to try civilians before a military court when the civil courts, i.e., the regular courthouses you see on The Practice, were open and operating, and in no way threatened by the war. As Justice Davis wrote in Milligan, (read the opinion here), there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Note the following: no civil courts are "actually closed" in the United States today. There is no "theatre of active military operations, where war really prevails" such that the civil courts cannot function. This, as the Milligan court noted, is a gross usurpation of power. The factual circumstances confronted by Milligan, if anything, were more serious than those facing the United States today. Lambdin Milligan, a citizen of Indiana, was arrested for allegedly conspiring to capture an arsenal, free Confederate prisoners, and for intending to join Confederate forces in Missouri. He was brought before a Military Commission, and sentenced to death. Despite the fact that there was a war going on, the court found that the military trial was unconstitutional. Very importantly, the court observed that No graver question was ever considered by this court, nor one which nearly concerns the rights of the whole people; for it is the birthright of every American citizen when charged with crime, to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be, or how much his crimes may have shocked the sense of justice of the country, or endangered its safety. By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people. The rule set forth in Ex parte Milligan, then, squarely controls any decision regarding the order issued by President Bush. The order is unconstitutional, plain and simple. "No emergency justifies the violation of any of the provisions of the United States Constitution. An emergency...cannot create power...but may allow the exercise of power already in existence, but not exercised except during an emergency." 16B Am. Jur.2d Constitutional Law § 52 (citations omitted). As the Nebraska Supreme Court put it, the Constitution was adopted in a state of emergency, the limits on the powers of the government were conceived in the light of emergency, and the limits are not changed by emergency. First Trust Co. v. Smith, 134 Neb. 84, 115, 277 N.W. 762, 778 (1938). For those wondering why such an order was signed, the Washington Post reports that the move was encouraged for weeks by conservative lawyers from past administrations and other experts who cited precedents dating back to the Civil War. One of them, George Terwilliger, a former high-ranking Justice Department official, said a military tribunal would be appropriate for anyone who commits an act of war against the United States. In fact, Terwilliger was the former Deputy Attorney General to George Bush. He handled the Florida election cases for President Bush. Although he is now in private practice, he was reported to have been a leading candidate to be head of the FBI. The administration has sought to justify the order on the grounds that "This is a global war. To have successful prosecutions, we might have to give up sources and methods" in a civilian court. "We don't want to have to do that," Albert Gonzales told ABC News. The Washington Post, meanwhile, reports that President Bush claimed the tribunals are needed because terrorism could "place at risk the continuity of the operations of the United States government." It is "not practicable," he said, to require the tribunals to abide by the "principles of law and the rules of evidence" that govern U.S. criminal prosecutions. Does the Taliban have troops on the streets of Washington, DC? No. And yet it's "not practicable" to follow the principles of law and the rules of evidence. To put it mildly, this is a dangerous step for the government to take. Much like the Patriot Act, which Rep. Ron Paul reports was not given to members to read before it was voted upon. The Patriot Act, by the way, authorizes increased governmental snooping powers which do not require a warrant, and which are therefore contrary to the Constitution. The Patriot Act is unconstitutional due to the fact that even social emergencies "cannot routinely justify invasions of privacy or restrictions on expression without devaluing and eventually destroying those rights." Halperin v. Kissinger, 606 F.2d 1192, 1201 (D.C. Cir. 1979)(subsequent history omitted), cited in 16B Am. Jur.2d Constitutional Law § 52. (Halperin v. Kissinger, by the way, cites Milligan for the proposition that only when the courthouses are physically closed may normal judicial processes be circumvented). The reason? "It would be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties which makes the defense of the nation worthwhile." Halperin v. Kissinger, 606 F.2d 1192, 1199 (D.C. Cir. 1979). So which is it: do conservatives have no sense of irony, or do they have no respect for constitutional liberty? A pair of Texans ought to be ashamed to follow precedent established by Abraham Lincoln in a war against Texas. A Republican president, and an alleged "conservative," ought to be ashamed to follow the arch-Democrat, FDR. President Bush should repeal his order. It is unconstitutional, unwise, and unnecessary. November 15, 2001 Mr. Dieteman <DavidFDieteman(a)aol.com> is an attorney in Erie, Pennsylvania, and a PhD candidate in philosophy at The Catholic University of America. © 2001 David Dieteman ************************************************************************** Subscribe to Freematt's Alerts: Pro-Individual Rights Issues Send a blank message to: freematt(a)coil.com with the words subscribe FA on the subject line. List is private and moderated (7-30 messages per week) Matthew Gaylor, (614) 313-5722 ICQ: 106212065 Archived at http://groups.yahoo.com/group/fa/ **************************************************************************

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U.K. may order firms to record Net-traffic, ban anon remaiers?
by Declan McCullagh 15 Nov '01

15 Nov '01

I'm told this bill is expected to become law by Christmas. ----- Forwarded message from Declan McCullagh <declan(a)well.com> -----

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Bush Order on Military Tribunals.
by Jei 15 Nov '01

15 Nov '01

---------- Forwarded message ---------- Date: Thu, 15 Nov 2001 01:52:11 -0500 From: Matthew Gaylor <freematt(a)coil.com> To: Matthew Gaylor <freematt(a)coil.com> Subject: Bush Order on Military Tribunals... <http://www.aclu.org/news/2001/n111401b.html> Bush Order on Military Tribunals is Further Evidence That Government is Abandoning Democracy's Checks and Balances Statement of Laura W. Murphy, Director ACLU Washington National Office FOR IMMEDIATE RELEASE Wednesday, November 14, 2001 WASHINGTON -- The American Civil Liberties Union is deeply disturbed by President Bush's executive order allowing special military tribunals to try non-citizens charged with terrorism. The tribunals would even reach non-citizens in the United States, including lawful permanent residents. To our knowledge, the move to establish a military tribunal when Congress has not declared war is unprecedented. We do not believe that the Administration has shown that the constitutional jury trial system does not allow for the prosecution of those accused of terrorist activities. Absent such a compelling justification, the President's decision is further evidence that the Administration is totally unwilling to abide by the checks and balances that are so central to our democracy. The use of military tribunals would apparently authorize secret trials without a jury and without the requirement of a unanimous verdict and would limit a defendant's opportunities to confront the evidence against him and choose his own lawyer. What's worse, these important legal protections would be removed in a situation where defendants may very well be facing the death penalty. It is difficult to understand how the Administration can justify the use of a tribunal when the United States has successfully tried in our courts non-citizens accused of terrorist acts, organized crime, and others in situations where the safety of jurors and the disclosure of government intelligence methods were at issue. As the prosecutions of the 1993 World Trade Center bombers and Oklahoma City bomber Timothy McVeigh demonstrate, the government has managed to protect the safety and identity of jurors while achieving convictions in terrorism cases. And there is already a system established to handle classified information in the course of a trial; it is called the Classified Information Procedures Act. For decades, CIPA has adequately balanced national security and due process concerns. The government has made no showing that CIPA procedures would not be adequate in these circumstances as well. Further, it would be hypocritical of the United States to impose such a tribunal when we have repeatedly protested the use of such courts against U.S. citizens abroad. Congress has already given the Administration and the Justice Department virtually everything they asked for to fight terrorism. This latest move, combined with the Justice Department's announced intentions to eavesdrop on attorney conversations with inmates and to begin interviewing foreign visitors to the United States, demonstrates the government's increasing willingness to circumvent the requirements of the Bill of Rights. We call on Congress to exercise its oversight powers before the Bill of Rights in America is distorted beyond recognition. Copyright 2001, The American Civil Liberties Union ###

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FC: Text of Bush's order creating military tribunals for civilians
by Declan McCullagh 15 Nov '01

15 Nov '01

Many folks wrote to me pointing out that President Bush's order was online this morning, probably by the time I sent my note to Politech. It also appeared in today's New York Times. Mea culpa. I wrote my note last night, but did not doublecheck before sending it out this morning and heading off to the Cato Institute conference for the day. I haven't has as much time to look at this as I'd like, but the order says military tribunals will hear cases dealing with only an accused terrorist "who is not a United States citizen." Jason Zengerle has a perhaps-prescient article giving arguments for a military tribunal here: http://www.thenewrepublic.com/111901/zengerle111901.html Previous Politech message: http://www.politechbot.com/p-02794.html -Declan --- http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html For Immediate Release Office of the Press Secretary November 13, 2001 Military Order Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism By the authority vested in me as President and as Commander in Chief of the Armed Forces of the United States by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40, 115 Stat. 224) and sections 821 and 836 of title 10, United States Code, it is hereby ordered as follows: Section 1. Findings. (a) International terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces. (b) In light of grave acts of terrorism and threats of terrorism, including the terrorist attacks on September 11, 2001, on the headquarters of the United States Department of Defense in the national capital region, on the World Trade Center in New York, and on civilian aircraft such as in Pennsylvania, I proclaimed a national emergency on September 14, 2001 (Proc. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks). (c) Individuals acting alone and in concert involved in international terrorism possess both the capability and the intention to undertake further terrorist attacks against the United States that, if not detected and prevented, will cause mass deaths, mass injuries, and massive destruction of property, and may place at risk the continuity of the operations of the United States Government. (d) The ability of the United States to protect the United States and its citizens, and to help its allies and other cooperating nations protect their nations and their citizens, from such further terrorist attacks depends in significant part upon using the United States Armed Forces to identify terrorists and those who support them, to disrupt their activities, and to eliminate their ability to conduct or support such attacks. (e) To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals. more (OVER) 2 (f) Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts. (g) Having fully considered the magnitude of the potential deaths, injuries, and property destruction that would result from potential acts of terrorism against the United States, and the probability that such acts will occur, I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling govern-ment interest, and that issuance of this order is necessary to meet the emergency. Sec. 2. Definition and Policy. (a) The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that: (1) there is reason to believe that such individual, at the relevant times, (i) is or was a member of the organization known as al Qaida; (ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or (iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and (2) it is in the interest of the United States that such individual be subject to this order. (b) It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4. (c) It is further the policy of the United States that any individual subject to this order who is not already under the control of the Secretary of Defense but who is under the control of any other officer or agent of the United States or any State shall, upon delivery of a copy of such written determination to such officer or agent, forthwith be placed under the control of the Secretary of Defense. Sec. 3. Detention Authority of the Secretary of Defense. Any individual subject to this order shall be -- (a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States; (b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria; more 3 (c) afforded adequate food, drinking water, shelter, clothing, and medical treatment; (d) allowed the free exercise of religion consistent with the requirements of such detention; and (e) detained in accordance with such other conditions as the Secretary of Defense may prescribe. Sec. 4. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order. (a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death. (b) As a military function and in light of the findings in section 1, including subsection (f) thereof, the Secretary of Defense shall issue such orders and regulations, including orders for the appointment of one or more military commissions, as may be necessary to carry out subsection (a) of this section. (c) Orders and regulations issued under subsection (b) of this section shall include, but not be limited to, rules for the conduct of the proceedings of military commissions, including pretrial, trial, and post-trial procedures, modes of proof, issuance of process, and qualifications of attorneys, which shall at a minimum provide for -- (1) military commissions to sit at any time and any place, consistent with such guidance regarding time and place as the Secretary of Defense may provide; (2) a full and fair trial, with the military commission sitting as the triers of both fact and law; (3) admission of such evidence as would, in the opinion of the presiding officer of the military commission (or instead, if any other member of the commission so requests at the time the presiding officer renders that opinion, the opinion of the commission rendered at that time by a majority of the commission), have probative value to a reasonable person; (4) in a manner consistent with the protection of information classified or classifiable under Executive Order 12958 of April 17, 1995, as amended, or any successor Executive Order, protected by statute or rule from unauthorized disclosure, or otherwise protected by law, (A) the handling of, admission into evidence of, and access to materials and information, and (B) the conduct, closure of, and access to proceedings; (5) conduct of the prosecution by one or more attorneys designated by the Secretary of Defense and conduct of the defense by attorneys for the individual subject to this order; (6) conviction only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present; (7) sentencing only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present; and more (OVER) 4 (8) submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the Secretary of Defense if so designated by me for that purpose. Sec. 5. Obligation of Other Agencies to Assist the Secretary of Defense. Departments, agencies, entities, and officers of the United States shall, to the maximum extent permitted by law, provide to the Secretary of Defense such assistance as he may request to implement this order. Sec. 6. Additional Authorities of the Secretary of Defense. (a) As a military function and in light of the findings in section 1, the Secretary of Defense shall issue such orders and regulations as may be necessary to carry out any of the provisions of this order. (b) The Secretary of Defense may perform any of his functions or duties, and may exercise any of the powers provided to him under this order (other than under section 4(c)(8) hereof) in accordance with section 113(d) of title 10, United States Code. Sec. 7. Relationship to Other Law and Forums. (a) Nothing in this order shall be construed to -- (1) authorize the disclosure of state secrets to any person not otherwise authorized to have access to them; (2) limit the authority of the President as Commander in Chief of the Armed Forces or the power of the President to grant reprieves and pardons; or (3) limit the lawful authority of the Secretary of Defense, any military commander, or any other officer or agent of the United States or of any State to detain or try any person who is not an individual subject to this order. (b) With respect to any individual subject to this order -- (1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and (2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal. (c) This order is not intended to and does not create any right, benefit, or privilege, substantive or procedural, enforceable at law or equity by any party, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person. (d) For purposes of this order, the term "State" includes any State, district, territory, or possession of the United States. more 5 (e) I reserve the authority to direct the Secretary of Defense, at any time hereafter, to transfer to a governmental authority control of any individual subject to this order. Nothing in this order shall be construed to limit the authority of any such governmental authority to prosecute any individual for whom control is transferred. Sec. 8. Publication. This order shall be published in the Federal Register. GEORGE W. BUSH THE WHITE HOUSE, November 13, 2001. # # # ---

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FC: Text of Bush's order creating military tribunals for civilians
by Declan McCullagh 15 Nov '01

15 Nov '01

Many folks wrote to me pointing out that President Bush's order was online this morning, probably by the time I sent my note to Politech. It also appeared in today's New York Times. Mea culpa. I wrote my note last night, but did not doublecheck before sending it out this morning and heading off to the Cato Institute conference for the day. I haven't has as much time to look at this as I'd like, but the order says military tribunals will hear cases dealing with only an accused terrorist "who is not a United States citizen." Jason Zengerle has a perhaps-prescient article giving arguments for a military tribunal here: http://www.thenewrepublic.com/111901/zengerle111901.html Previous Politech message: http://www.politechbot.com/p-02794.html -Declan --- http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html For Immediate Release Office of the Press Secretary November 13, 2001 Military Order Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism By the authority vested in me as President and as Commander in Chief of the Armed Forces of the United States by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40, 115 Stat. 224) and sections 821 and 836 of title 10, United States Code, it is hereby ordered as follows: Section 1. Findings. (a) International terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces. (b) In light of grave acts of terrorism and threats of terrorism, including the terrorist attacks on September 11, 2001, on the headquarters of the United States Department of Defense in the national capital region, on the World Trade Center in New York, and on civilian aircraft such as in Pennsylvania, I proclaimed a national emergency on September 14, 2001 (Proc. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks). (c) Individuals acting alone and in concert involved in international terrorism possess both the capability and the intention to undertake further terrorist attacks against the United States that, if not detected and prevented, will cause mass deaths, mass injuries, and massive destruction of property, and may place at risk the continuity of the operations of the United States Government. (d) The ability of the United States to protect the United States and its citizens, and to help its allies and other cooperating nations protect their nations and their citizens, from such further terrorist attacks depends in significant part upon using the United States Armed Forces to identify terrorists and those who support them, to disrupt their activities, and to eliminate their ability to conduct or support such attacks. (e) To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals. more (OVER) 2 (f) Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts. (g) Having fully considered the magnitude of the potential deaths, injuries, and property destruction that would result from potential acts of terrorism against the United States, and the probability that such acts will occur, I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling govern-ment interest, and that issuance of this order is necessary to meet the emergency. Sec. 2. Definition and Policy. (a) The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that: (1) there is reason to believe that such individual, at the relevant times, (i) is or was a member of the organization known as al Qaida; (ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or (iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and (2) it is in the interest of the United States that such individual be subject to this order. (b) It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4. (c) It is further the policy of the United States that any individual subject to this order who is not already under the control of the Secretary of Defense but who is under the control of any other officer or agent of the United States or any State shall, upon delivery of a copy of such written determination to such officer or agent, forthwith be placed under the control of the Secretary of Defense. Sec. 3. Detention Authority of the Secretary of Defense. Any individual subject to this order shall be -- (a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States; (b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria; more 3 (c) afforded adequate food, drinking water, shelter, clothing, and medical treatment; (d) allowed the free exercise of religion consistent with the requirements of such detention; and (e) detained in accordance with such other conditions as the Secretary of Defense may prescribe. Sec. 4. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order. (a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death. (b) As a military function and in light of the findings in section 1, including subsection (f) thereof, the Secretary of Defense shall issue such orders and regulations, including orders for the appointment of one or more military commissions, as may be necessary to carry out subsection (a) of this section. (c) Orders and regulations issued under subsection (b) of this section shall include, but not be limited to, rules for the conduct of the proceedings of military commissions, including pretrial, trial, and post-trial procedures, modes of proof, issuance of process, and qualifications of attorneys, which shall at a minimum provide for -- (1) military commissions to sit at any time and any place, consistent with such guidance regarding time and place as the Secretary of Defense may provide; (2) a full and fair trial, with the military commission sitting as the triers of both fact and law; (3) admission of such evidence as would, in the opinion of the presiding officer of the military commission (or instead, if any other member of the commission so requests at the time the presiding officer renders that opinion, the opinion of the commission rendered at that time by a majority of the commission), have probative value to a reasonable person; (4) in a manner consistent with the protection of information classified or classifiable under Executive Order 12958 of April 17, 1995, as amended, or any successor Executive Order, protected by statute or rule from unauthorized disclosure, or otherwise protected by law, (A) the handling of, admission into evidence of, and access to materials and information, and (B) the conduct, closure of, and access to proceedings; (5) conduct of the prosecution by one or more attorneys designated by the Secretary of Defense and conduct of the defense by attorneys for the individual subject to this order; (6) conviction only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present; (7) sentencing only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present; and more (OVER) 4 (8) submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the Secretary of Defense if so designated by me for that purpose. Sec. 5. Obligation of Other Agencies to Assist the Secretary of Defense. Departments, agencies, entities, and officers of the United States shall, to the maximum extent permitted by law, provide to the Secretary of Defense such assistance as he may request to implement this order. Sec. 6. Additional Authorities of the Secretary of Defense. (a) As a military function and in light of the findings in section 1, the Secretary of Defense shall issue such orders and regulations as may be necessary to carry out any of the provisions of this order. (b) The Secretary of Defense may perform any of his functions or duties, and may exercise any of the powers provided to him under this order (other than under section 4(c)(8) hereof) in accordance with section 113(d) of title 10, United States Code. Sec. 7. Relationship to Other Law and Forums. (a) Nothing in this order shall be construed to -- (1) authorize the disclosure of state secrets to any person not otherwise authorized to have access to them; (2) limit the authority of the President as Commander in Chief of the Armed Forces or the power of the President to grant reprieves and pardons; or (3) limit the lawful authority of the Secretary of Defense, any military commander, or any other officer or agent of the United States or of any State to detain or try any person who is not an individual subject to this order. (b) With respect to any individual subject to this order -- (1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and (2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal. (c) This order is not intended to and does not create any right, benefit, or privilege, substantive or procedural, enforceable at law or equity by any party, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person. (d) For purposes of this order, the term "State" includes any State, district, territory, or possession of the United States. more 5 (e) I reserve the authority to direct the Secretary of Defense, at any time hereafter, to transfer to a governmental authority control of any individual subject to this order. Nothing in this order shall be construed to limit the authority of any such governmental authority to prosecute any individual for whom control is transferred. Sec. 8. Publication. This order shall be published in the Federal Register. GEORGE W. BUSH THE WHITE HOUSE, November 13, 2001. # # # ---

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Crypto Terrorists to be Tried in Military Tribunal
by Jei 15 Nov '01

15 Nov '01

I thought this would be relevant to the list members. http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html http://cryptome.org/pmo111301.htm http://www.newsmax.com/archives/articles/2001/11/13/193921.shtml And what is a Crypto Terrorist, you ask? Of course, it is someone who hides things with cryptography, e.g. a potential Cyber Terrorist. ;-P ---------- Forwarded message ---------- Date: Wed, 14 Nov 2001 23:43:51 -0400 From: John Noble <jnoble(a)DGSYS.COM> Reply-To: Law & Policy of Computer Communications <CYBERIA-L(a)LISTSERV.AOL.COM> To: CYBERIA-L(a)LISTSERV.AOL.COM Subject: Re: FC: President Bush says military tribunals will try civilian cases (fwd) At 9:07 PM -0500 11/14/01, Andrew C. Greenberg wrote: >I saw the part in article III about one supreme court and subsidiary >courts. Sorry, where, exactly, does it say that military tribunals have >jurisdiction over civilians? > Article III extends the judicial power to cases arising under the Constitution, laws of the United States, etc. Article I authorizes Congress to define and punish offenses against the law of nations, something apparently apart from the laws of the United States. The real issue is not an Article III tribunal vs an Article I tribunal, but whether you get the little niceties like a public trial, a jury, and a lawyer. In other words, it's not about whether the military tribunal has jurisdiction, but whether the "defendant" has constitutional rights in either forum. Wong Wing v. U.S., 163 US 228 (1896) holds that resident aliens are entitled to the protection of the 5th and 6th Amendment (due process, jury trial) if they are to be charged and imprisoned instead of deported. U.S. v. Verdugo-Urquidez, 494 US 1092 (1990) distinguishes Wong Wing in holding the 4th Amendment does not apply to searches outside of the United States where the alien has "no significant voluntary connection" to the U.S. In that case the defendant was grabbed and his house searched in Mexico before he was whisked into the U.S. for trial, where his 4th Amendment claims were rejected because the Bill of Rights doesn't protect non-resident aliens. It is likely that the rationale of Verdugo-Urquidez supports the constitutionality of the executive order as applied to alleged terrorists captured in Afghanistan, and either tried there or like Verdugo-Rodriguez brought here involuntarily. Non-resident aliens are simply unprotected by the Bill of Rights. With respect to those captured in the U.S., Ex parte Quirin, 317 U.S. 1 (1942) indicates that "unlawful belligerents" accused of violations of the "laws of war" are not entitled to jury trials because violations of the laws of war were not among the crimes triable by jury at common law (like claims in equity). The problem is the uncertain scope of the terms "laws of war" and "unlawful belligerents" -- Quirin seems to be define each only by reference to the other, and the terms seem even less exact today than they did in 1942. Quirin characterizes as unlawful belligerents (in contrast with lawful belligerents who must be treated as POWs) those "secretly passing through the defenses of the United States in civilian dress, for purpose of committing hostile acts." In the context of the current "war on terrorism," the terrorists found in the U.S. likely qualify as unlawful belligerents if they are here to commit "hostile acts." It seems to me that "hostile acts" might include money laundering, drug smuggling, even credit card fraud. It's not even clear that the "hostile acts" have to be otherwise criminal acts, but it is clear from Quirin that ordinary crimes, like conspiracy to blow up a building, can be re-cast as violations of the law of war when perpetrated by "unlawful belligerents." Moreover, Quirin indicates that even U.S. citizenship does not entitle an unlawful belligerent to a jury trial. Quirin claimed to have been a citizen since he was 4 years old, an issue that the Court found unnecessary to address. The problem with this is that in Quirin the court looked to a real honest-to-god declaration of war as the source of the President's authority to send the German spies to a military tribunal. This time, we're looking at a joint resolution authorizing the President to use necessary and appropriate force to end terrorism, which is undefined. The foreign belligerent is not a foreign nation, but a network that is not altogether foreign. It raises a question as to whether there is a distinction between a war on terrorism, and, for example, a war on drug trafficking; or whether terrorism might be defined to include drug trafficking, or almost any other anti-social behavior that we want to deal with free of all the nasty complications caused by lawyers and juries. How hard would it be to define people who blow up abortion clinics, or set free lab animals, or write computer viruses, or (you'll like this, Andrew) distribute DeCSS, as among the enemies in the war against terrorism. John Noble ********************************************************************** For Listserv Instructions, see http://www.lawlists.net/cyberia Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot Need more help? Send mail to: Cyberia-L-Request(a)listserv.aol.com **********************************************************************

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Re: Red Herring: Terrorism and the challenge to globalization.
by Nomen Nescio 15 Nov '01

15 Nov '01

> [Another glimmer of hope as even some of the mainstream business press is > venturing beyond simple patriotic flag waving. Posted in its entirety > as its not online.] > > Terrorism and the challenge to globalization. > BY PETER SCHWARTZ Stupid article, and your comment doesn't make much sense either. First, the terrorist attacks are the best thing that has ever happened for globalization. No one is a purer anti-globalist than bin Laden. Now the anti-global movement is associated with death and terror. Anti-globalization protests have been scaled back and cancelled all around the world since September 11. To the extent that radical Islam is the new standard bearer for anti-globalism, the movement is doomed. Contrary to the predictions of this article, the only hope for the anti-globalists is to disassociate themselves as fast as possible from Islamic terrorism. That's going to be tough, given the images that are burned forever into people's minds. Second, we can update Gordon Gecko's line from Wall Street. Instead of "greed is good," now "globalism is good". Globalism is a matter of free association and free choice for billions of people. It represents market capitalism at its best, with each country providing those goods and services at which it has a comparative advantage. Globalism is freedom. Third, cypherpunk technologies will promote globalism. To the extent that the future is cast as a battle between global capitalism and democracy, technology is on the side of capitalism. Democracy is an inherently coercive institution. It relies on physical force to achieve its goals. Capitalism is non-coercive. It is cooperative. It invites, it does not compel. Cypherpunk technologies enhance the opportunities to interact in cooperative ways, free of external coercion. If they can't see what you do, they can't control what you do. Cypherpunks are supporting globalism by their actions, whether they understand that or not.

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Gambler Depot - 100% Sign Up Bonus Offer!
by newsletter＠gamblerdepot.com 15 Nov '01

15 Nov '01

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Red Herring: Terrorism and the challenge to globalization.
by mean-green＠hushmail.com 15 Nov '01

15 Nov '01

[Another glimmer of hope as even some of the mainstream business press is venturing beyond simple patriotic flag waving. Posted in its entirety as its not online.] Terrorism and the challenge to globalization. BY PETER SCHWARTZ THE CATASTROPHIC, evil attacks on the United States are the result of deep grievances held by violent factions of radical Islamic movements. But within hours of the World Trade Center's collapse, many voices that have been raised in opposition to globalization were arguing that the attacks were the result of the American drive for global political and economic hegemony. Is there really a connection here? The question is not whether there is some grand conspiracy. Rather, the question is whether the events of September ii are part of the same story as the challenge to globalization. If so, what does it portend? There are several good arguments that the answer is yes, there is a bigger story that ties together fanatic Islamists and World Trade Organization protesters. Both are challenging American power, and both are opposed to American global dominance of culture, economics, and politics. But there are different interpretations of the opposition to globalization. The globalization debate is really about the power of global corporations, argues Paul Hawken, cofounder of gardening retailer Smith & Hawken, and an active participant in Seattle's anti﷓WTO demonstrations. In his forthcoming book, Uprising, he suggests that a loose network of worldwide organizations is attempting to limit global entities' power to dominate, exploit, and sometimes corrupt societies. These network groups are not opposed to trade, private enterprise, or modernization; they just want these pursuits on terms that recognize certain values. They are repelled by violence. Still, they believe global companies hurt, more than help, people, and that poverty and corporate tyranny fertilize the soil from which fanaticism grows. Kevin Kelly, the former executive editor of Wired magazine and the author of Out of Control: The New Biology of A4acleines,Social Systems and the Economic World (Perseus, i995),suggests that radical Islam could come to play a role similar to that of Communism. The Communist movement around the world served to organize opposition to Western capitalism and give hope to the oppressed, however misplaced. Today in the Islamic world, America is seen as the source of poverty and powerlessness, while radical Islam is seen as the strongest opponent of American power, and the source of an alternative vision of better life. For American citizens, the violent extreme of radical Islam has become, like Communism before it, the nightmare that organizes our darkest fears. The United States calls itself the land of freedom and democracy, but, argues Benjamin Barber, author of Jihad vs. McWorld: How Globalism and Tribalism are Reshaping the World (Ballantine Books, t996), it supports an often oppressive and undemocratic international order. Institutions like the International Monetary Fund, the World Bank, and the WTO all function behind closed doors, where the United States and its brethren control the world economy. America has opposed efforts to increase transparency of the system and broaden participation in it. The U.S. government has opposed several new treaties covering issues like global climate change, war crimes, and even biological weapons. Many who challenge American power see the country as reserving democracy and freedom for itself. If these interpretations of political reality are valid, we can glimpse where the geopolitical future may be headed. If radical Islam is the new Communism, we may be in for a long and ugly war. This scenario involves a world of perpetual conflict with no winners. As atrocities on both sides feed on each other, the dividing lines become deeper and wider in an ever more﷓terrible cycle of violence. If Mr. Hawken and Mr. Barber are right, there are at least two possibilities. In the best of all possible worlds, democratic governance would begin to emerge globally. Existing institutions would become more transparent and democratic. New institutions would be created to better regulate common elements like the air and the oceans, and to establish appropriate global rules of behavior for corporations. But one has no trouble imagining another scenario, in which the United States refuses to surrender any sovereignty and acts unilaterally in its own interests. In such a rogue superpower scenario, the reception for U.S. companies around the world will become chilly indeed, as the world lines up to resist American hegemony. Sympathy for any new horrors inflicted upon the United States will be very limited, and cheers will be heard in Paris and Rome, as well as in the back streets of Gaza and Karachi. PETER ScHwaarz, chairman of the Global Business Network, is also a partner at the venture capital firm Alta Partners. Previously he headed scenario planning for Royal Dutch/Shell in London. Write to letters(a)redherring.com.

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Big news for LAUNCH members only
by Launch 15 Nov '01

15 Nov '01

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