Editor's Message

Well, looks like most of you will be reading the July newsletter in August. My friend Gary suggested that I should just skip a month and start calling the newsletter by the month it really comes out in. I'm hoping that the August newsletter will really come out in August, so I won't have to do what Gary suggests.

This month's newsletter had a pretty good excuse for coming out late. If any of you ever had to read the actual text of a Supreme Court decision before, then you may know the difficulty I had. I sort of gave up after reading 75 to 800f it. With all the reference in the ruling, it kind of reminded me of reading an annotated translation of the Odyssey.

Faced with reading the summaries, I had a tough time trying to figure out whose interpretation was more accurate and writing my own summary as a composite of theirs.

Gary, my apologies for not doing a purely up with America July article as we did for the last few years. For those of you that are not familiar with the Gary challenge - the July newsletter is suppose to be reserved for articles that highlight the good things with America. By my praised of the Supreme Court decision, there is an implicit criticism of those that supported the opposite view. I'm sorry for that.

Anyway, thank you Gary for the challenge and thank you Philip for the help with the other article.

Leonard Chan
Executive Editor

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Back in February and July of 2004 we wrote several pieces for the AACP newsletter regarding some high profile cases before the Supreme Court. At that time in June 2004, the Hamdi vs. Rumsfeld and Rasul v. Bush cases seemed to be landmark rulings that would help to define how our government would treat detained individuals. The Executive Branch of our government would no longer have un-tethered authority to incarcerate individuals without giving them access to the United States justice system. But since that ruling, the legal fight between security and liberty continued.

What followed were a slew of court petitions and rulings, Bush administration actions that created some semblance of due process, the passage of two US congressional bills supporting the Bush administration's positions, and two more Supreme Court decisions. Upon reading the Supreme Court's June 12, 2008 ruling in the Boumediene v. Bush and al-Odah v. United States cases, one would need to have a key or score card handy for all the references being used - CSRT, DTA, Hamdan v. Rumsfeld, MCA, and of course the Hamdi and Rasul cases. Here's a brief description of these key references to help you catch up on this issue.

CSRT
Soon after the Hamdi and Rasul Supreme Court decisions, the Bush administration used an executive order to create the Combatant Status Review Tribunals (CSRT). The purpose of the CSRT was to review the cases against the detainees at Guantanamo to determine if they were enemy combatants. The CSRT was modeled on a US Army regulation (190-8) used to comply with the Geneva Convention's requirement that detainees be differentiated in some manner to determine if they are civilians or lawful combatants. The belief in the Bush administration was that the CSRT would be enough to satisfy the due process that the Hamdi and Rasul rulings deemed necessary and by satisfying Hamdi and Rasul in this way, they could prevent detainees from gaining federal court reviews.

DTA
During the rest of 2004 and most of 2005, lawyers for some of the detainees proceeded to apply for petitions of writs of habeas corpus in federal courts. As some of these applications were being granted and then appealed by the executive branch, the US Congress passed the Detainee Treatment Act (DTA) in December of 2005. The DTA contained a provision that prevented detainees from apply for writs of habeas corpus in federal courts and made the D.C. Circuit Court of Appeals the exclusive final reviewer of the CSRT and other military commissions' decisions.

Hamdan v. Rumsfeld
In June 2006, the US Supreme Court ruled that the existence of the DTA

did not prevent Hamdan and other detainees from seeking Supreme Court reviews. The Supreme Court further ruled that the military commissions and tribunals created through Bush's executive order violated military law and the Geneva Convention. Congressional authorization would be needed before the executive branch could create these commissions.

MCA
In October of 2006, the US Congress passed and Bush signed the Military Commission Act (MCA). The MCA was essential created as an attempt to plug the legal holes in the CSRT and DTA. The MCA was thus congress' authorization of Bush's commissions and review process. Once again, detainees would be severely limited in their ability to seek Federal Court review. Under the MCA, commissions would continue the practices of allowing hearsay evidence, limit the suspects' ability to review and refute evidence against them that was classified as secret, and permit some testimony gather through "enhanced" interrogation methods if it was collected before the enactment of the DTA.

Boumediene v. Bush and al-Odah v. United States
The June 2008 Boumediene and al-Odah Supreme Court ruling reaffirms that individuals, citizens and non-citizens, that are detained by Americans and held in areas that are de facto US governed areas, like Guantanamo Bay, can seek a writ of habeas corpus in the United States court system. The Supreme Court found that the DTA and MCA failed to provide an adequate substitute for habeas corpus.

As the past four years have demonstrated, as long as the Bush administration is in office, this legal fight appears to show no end.

Now that you are briefed with this very simplified description on this topic please feel free to do your own more thorough research on this matter by starting with the following web pages. Information on Boumediene and al-Odah • The News Hour Summary and Analysis • Wikipedia Summary • Center for Constitutional Rights Summary • Center for Constitutional Rights Analysis • Actual text of the Supreme Court Ruling Information on the Writ of Habeas Corpus • Wikipedia Description

On June 12th, I listened to the PBS News Hour program and heard the news story and discussion on the Boumediene and al-Odah Supreme Court ruling with great interest. Because AACP has its roots in the telling of Japanese American history, we continue to keep our eyes open to current issues that pose some similarities to the terrible World War II injustices done to many Japanese Americans.

During the discussion phase of the News Hour's segment on this story, they had on two legal experts to discuss the pros and cons of this ruling.

David Rivkin who disagreed with this ruling stated the following -
"The biggest fundamental problem of this case is not even habeas, because to get habeas applicability you need to rule that the Constitution follows the flag. That emphatically has never been the rule in our history.

The Constitution is a compact between the American people and its government. The Constitution always applies to Americans, no matter where they are, and the Constitution only applies to foreigners in the United States. The court fundamentally swept this aside."

What's so wrong with this? I'm not a legal expert, but from an ethical point of view what is so wrong about allowing the writ of habeas corpus be applicable to any individual under the control of the United States government? If the Boumediene and al-Odah ruling helps to safeguard one of the fundamental protections of liberty, that being the writ of habeas corpus, then I say bravo to the justices that supported this ruling.

Is it ethical for a government to lock away an individual for many years without giving them any fair recourse to legally fight their imprisonment?

The radio program Talk of the Nation on National Public Radio had on the author Mahvish Rukhsana Khan, who wrote the memoir My Guantanamo Diary: The Detainees and the Stories They Told Me. One of the callers stated that he could not understand the sympathy for prisoners of war. "It doesn't make sense to me, why there is so much sympathy for these people who are terrorist and are prisoners of war." The author explained that without fair process and trials one could not be certain of the detainees' guilt. The caller went on to say that these individuals were not US citizens and did not deserve the same rights as Americans.

Why not? Just because they're not American, does that make it all right for us to lock them away for many years without giving them any due process?

On a recent edition of the program Bill Moyers Journal, which covered hearing in congress that dealt with the issue of torture being performed by our government, Rep. Trent Franks said, "I believe this is about the tenth hearing that we've had in this Subcommittee that was dedicated primarily to making sure that we were protecting the rights of terrorists." Rep. Franks was making the same assumption that all of the detainees were guilty.

Okay, this brings us back to the central question - must we forgo some of our fundamental freedoms and laws in order to provide for our security? Are we safer if our government employs methods that our Vice President describes as working "the dark side?" Do the ends justify the means?

Reciprocity
In many cultures and religions there is the ethic of reciprocity or the Golden Rule - "treat others as you would like to be treated."

The following are a few quotes from famous religious figure and text. Wikipedia is the source for these quotes. http://en.wikipedia.org/wiki/Ethic_of_reciprocity

Buddhism
One who, while himself seeking happiness, oppresses with violence other beings who also desire happiness, will not attain happiness hereafter.

Christianity
Matthew 7:12
"So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets."

Luke 10:25-28
25 Just then a lawyer stood up to test Jesus. 'Teacher,' he said, 'what must I do to inherit eternal life?'
26 He said to him, 'What is written in the law? What do you read there?'
27 He answered, 'You shall love the Lord your God with all your heart, and with all your soul, and with all your strength, and with all your mind; and your neighbour as yourself.'
28 And he said to him, 'You have given the right answer; do this, and you will live.'
Jesus then proceeds to tell the parable of the Good Samaritan, making it clear that "your neighbour" means any other person, or the one that happens to be near you, with no link to you other than that.

Confucianism
Confucius said in The Analects: Never impose on others what you would not choose for yourself. Analects XV.24, tr. David Hinton

Hinduism
The Golden rule appears in the Mahabharata, where Vrihaspati says:
Additional source from mahabharataonline.com
I shall tell thee what constitutes the highest good of a human being. That man who practises the religion of universal compassion achieves his highest good…

1. He who, from motives of his own happiness, slays other harmless creatures with the rod of chastisement, never attains to happiness, in the next world. That man who regards all creatures as his own self, and behaves towards them as towards his own self, laying aside the rod of chastisement and completely subjugating his wrath, succeeds in attaining to happiness…
2. One should never do that to another which one regards as injurious to one's own self. This, in brief, is the rule of Righteousness. One by acting in a different way by yielding to desire, becomes guilty of unrighteousness. In refusals and gifts, in happiness and misery, in the agreeable, and the disagreeable, one should judge of their effects by a reference to one's own self.
3. When One injures another, the injured turns round and injures the injurer. Similarly, when one cherishes another, that other cherishes the cherisher. One should frame one's rule of conduct according to this.

Judaism
The ethic of reciprocity is set forth in Leviticus 19:18 ("You shall not take vengeance or bear a grudge against your countrymen. Love your fellow as yourself: I am the LORD." [28]) and Leviticus 19:34 ("The stranger who resides with you shall be to you as one of your citizens; you shall love him as yourself, for you were strangers in the land of Egypt: I the LORD am your God."[28]). Leviticus 19:34 is important because it universalizes the edict of Leviticus 19:18 from "one of your people" to all of humankind.

Taoism
"Regard your neighbor's gain as your own gain, and your neighbor's loss as your own loss." T'ai Shang Kan Ying P'ien.
"The sage has no interest of his own, but takes the interests of the people as his own. He is kind to the kind; he is also kind to the unkind: for Virtue is kind. He is faithful to the faithful; he is also faithful to the unfaithful: for Virtue is faithful." Tao Teh Ching, Chapter 49

If the Supreme Court's ruling ultimate results in people other than just Americans being treated justly, the way we would want others to treat us, then this is good for America. If you believe in reciprocity, then you believe this to be true.

The following books are discounted for subscribers to our newsletter. The discounts on these books end August 18, 2008.

Shoe Box Plays

See the article above.

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Flowers from Mariko

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1, 2, 3, Go!

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