The Court of Big Brother

The Court of Big Brother


On 13 November 2001, George W. Bush, by virtue of the authority granted to him as President and as Commander of the Armed Forces by the Constitution and laws of the United States, has issued a directive on the military "detention, treatment and trial of non-citizens in the war against terrorism. "

In the premises of the presidential directive is noted that international terrorists, including members of al Qaida, have carried out attacks against the citizens and the diplomatic and military personnel of the United States on a scale that create a state of armed conflict that requires the intervention American Armed Forces. In this context - is observed that - the United States' ability to protect themselves, their nationals and those of its allies from further terrorist attacks depends in significant part by the use of the U.S. Armed Forces to identify terrorists, disrupt their activities and eliminate their ability to conduct similar attacks.

So the President has decreed that, for the effective prevention of terrorist attacks it is necessary that individuals suspected of belonging to Al Qaeda or other terrorist organizations are held and, when appropriate, be tried by military courts for violation of the laws of war and other applicable laws.

So the President determines that for proceedings held by the Military Courts, in application of the Directive do not apply the principles of law and rules of evidence generally recognized in terms of the processes of criminal cases in the district courts of the United States. The Directive delegates the Minister of Defence to take all necessary measures to ensure the detention and trial of terror suspects. To this end, it is expected that all individuals subject to the treatment set out in the Directive (ie all persons prosecuted or investigated for terrorism in the United States) to be delivered by any other authority, or the State in the hands of the Armed Forces. The Minister of Defense shall provide for the detention of such persons, which may occur both inside and outside the country, ensuring that detainees are treated humanely, without distinction of race, sex or religion, are supplied with water, food and medical medical and can freely exercise religious practices. As for the process, is given carte blanche to the Minister of Defence, who must establish the judges instruct prosecutors, establish the rules of procedure relating to the acquisition of the evidence, the preliminary stage, judgment, and the next phase, taking into account that the military Tribunal (more appropriately called: military commission) can sit at any time and in any place, and that the process can be concluded with the sentence of life imprisonment or death.

Regarding the acquisition of evidence, procedural rules must take into account the need to protect confidential information, while there is no requirement to ensure the publicity of the trial. For the issuance of a verdict of conviction is needed competition from two-thirds vote of the judges present for the vote, which integrate the majority (simple) of the judges in charge of the deal. The rulings can not be appealed, but they are not definitive, as the last word rests with the President or the Secretary of Defense, where in this designated by the President.

In summary, with the directive of 13 November Bush has created a jurisdiction (if you can call it that) extraordinary reserved for foreigners and given to the armed forces. Under this jurisdiction is expected that some organs of the Armed Forces should identify the suspects (which can be only foreigners) to be submitted to the treatment provided by the Presidential Directive. Once you have identified the suspects may be arrested (again by U.S. forces), wherever they are, and subjected to detention or the United States or abroad without time limits. Detention can lead to a process that can be celebrated everywhere, presumably on the aircraft carrier or at U.S. military bases scattered across the globe. The process can be celebrated secretly (or camera), by judges appointed by the Minister of Defence, with procedural rules laid down for that purpose by the military, released by the principles of law and rules of evidence that apply to criminal proceedings in the courts celebrated U.S.. The sentence can also be life imprisonment or death and there is no appeal, but only the possibility that the final decision is endorsed or reviewed by the President of the United States.

So with a simple presidential measure, outside any control or parliamentary procedures, was introduced to a very special Court, would pale in comparison with which even the Special Court for upholding the rule established by the Fascist regime, which, in spite of his sin Originally it was still subject to the procedure and criminal law in force and does not discriminate on the basis of nationality.

It 'clear that this Directive Bush introduces a procedure for Extraordinary which is really impossible to find parallels in the laws or constitution based on the principle of the rule of law (rule of the law). In practice, the President, with the need autolegittimandosi - politically unimpeachable - to make an effective law enforcement efforts against terrorism, ends up concentrated in his hands, especially in his capacity as Chief of the Armed Forces, the legislature, the judiciary and the executive , then assumes the functions of the legislature (emanating directly - through the Minister of Defense - a special law, released by the principles of substantive and procedural law are in force, those of a judge, choosing judges that the most own terms, and those of head executive, proceeding militarily to the capture of the suspects and the execution of death sentences by the military system.

It does not appear, therefore, misplaced comment that hard, November 15, 2001, William Safire, the conservative columnist for The New York Times has devoted to this project, noting that the President has assumed dictatorial power to jail or execute aliens. There will be a court order and an independent jury - notes Safire - standing between the government and the accused. Foreigners will find themselves faced with an executive who has now become investigator, prosecutor, judge, jailer and Executioner.

How do you reconcile this new jurisdiction that cancels out any form of division of powers with the rules and values ​​of the Constitution of the United States?

Can not be reconciled at all, simply the constitution does not apply to foreigners. "The guarantees of the U.S. Constitution, does not extend to our enemies detained abroad," says the White House counsel, Alberto Gonzalez (Republic, December 2, 2001).

Here emerges an old habit, which runs through as a constant throughout American history. They are the owners of slaves to assert in the Declaration of Independence July 4, 1776 that "all men are created equal, that the Creator has invested them with certain inalienable rights, among these rights are life and liberty."

Those who solemnly recognized the equality and the existence of inviolable fundamental rights, in reality intended to refer exclusively to the rights of their social group / ethnicity and those of others. In fact, the United States Supreme Court, interpreting the intentions of the founding fathers, he decided in 1857 that blacks do not enjoy constitutional protection because they are not "persons" for the purposes of the texts that use the term. Certainly were not considered "persons" Santee Sioux Indians who were overwhelmed by the federal army in Minnesota in October 1862. Hundreds of prisoners were tried in the course of military trials, lasting about 10 minutes each, and they were all sentenced to death (as he tells us in his book, David A. Nichols, Lincoln and the Indians).

The political authorities of Minnesota wanted the federal army immediately put to death all the 303 convicted. Lincoln, however, was opposed - his goodness - and reduced the list of giustiziandi to 39, while promising politicians of Minnesota that the federal army have killed or expelled all Indians from the state (see Di Lorenzo Thomas, America's Disgraceful History of Military Trias). The executions took place all along the Indians December 26, 1862 in Mankato, Minnesota.

After the cards of the United Nations, after the Universal Declaration of Human Rights of 1948, after the 1966 UN Covenants on Civil and Political Rights, it is clear that no constitution, even the American one, can no longer be interpreted as meaning that some men can be considered "persons" and as such enjoy the rights that a political community recognizes as inherent in the dignity of the human being and not others. The problem, however, can not be reduced to questions of constitutionality profiles internal to the legal system of the USA, and because this new jurisdiction is reserved for foreigners, and therefore casts its shadow abroad, and because there are some principles that regulate the power to punish States, which are generally recognized by the international community.

In the international community, in fact, is the general recognition that the criminal coercion should be subjected to a series of rules, because the power to punish each state is limited by the fundamental rights of the individual, including a privileged place it the right to a fair trial by an impartial judge. The right to a fair trial is part of the prohibition of discrimination that is based on sex, race or national origin, as provided for in art. 26 of the UN International Covenant on Civil and Political Rights of 1966. Establish a "Special Court" reserved for non-citizens, constitutes a violation of the principle of non-discrimination as it introduces a protection (and coercion) Criminal differentiated by citizens and foreigners in violation of the principles of legal culture established by the Universal Declaration of Human Rights and made mandatory by the International Covenant on civil and Political Rights. It 's true that the United States, although a signatory, has never ratified the Covenant, as they never ratified all other International Conventions on Human Rights (the Convention Against Genocide of 1948 to the more recent Convention on the Rights of the Child) by virtue of a concept of national sovereignty that is cloaked in absolute and does not accept the constraints of the law. However you can not ignore that there are legal standards in order to jurisdiction (regarding the prohibition of discrimination in the legal protection, and the need for a fair trial), which are generally recognized by the Community of Nations and the Special Court for Bush fails to comply with these standards. It 'true that in the Directive for the establishment of the Court, as we have seen, it is specified that all detainees must be treated humanely, without any discrimination that is based on sex, race, skin color, birth, health, etc.., but this claim of equality has no other value that is not a joke, since the maximum discrimination occurred upstream through the establishment of a special Criminal Court itself, reserved for foreigners, and unencumbered by the law, by which jurisdiction and procedure American citizens are free. It opens this way an unfortunate law that even dual formalizes the double standard in the field of human rights that the third world countries complain, not without reason, to the West.

It 'just the case then to observe that in our constitutional order a Special Military Tribunal for foreigners, it would not be even remotely conceivable. In fact, it would contravene the prohibition on creating special courts that the constituents wisely introduced (Article 102 flights.) So you could say, albeit in a changed historical conditions, the experience of the Special Court of fascism and would be contrary to the law (equal ) judicial protection under Article. 24 of the Constitution, the Constitutional Court has repeatedly characterized as fundamental, inviolable right of the individual, which must be secured to all, without distinction of nationality.

Here we are faced with more than a judicial structure, an instrument for the continuation of war by other means: a sort of equipment which allows legal apparatus to continue the military offensive action undertaken by the bombing. In particular, such a court allows U.S. forces to complete the treatment of prisoners of the Islamic Foreign Legion captured in Afghanistan and survived the reprisals and revenge these days.

It is no coincidence that such a court was established in the United States during World War II to correspond to functional safety requirements to the conduct of the war and was used to convict hanged some German saboteurs landed on American soil. In this condition of structural defect of impartiality, it is easy to foresee that the conditions of the "fair trial" would hardly be observed, starting from the prohibition of the use of torture, and ending with the methods of acquisition and validation of the tests.

In short, we are faced with a monster judiciary and it is all too easy comparison with the International Court of Justice, which is designed with the Treaty of Rome in 1998, in which the United States are opposed, which appears in the comparison as a beacon of civilization, as well as being the only decent solution and handy for the repression of crimes against humanity, like the one made on 11 September in New York. For its ambitions of global justice, the Special Court is the anti-Bush International Court of Justice, the answer, in an imperial logic, the need of the international community to counter the acts of violence that the Statute of the Court of Rome recognized as international crimes.

In fact, the project of the Special Court is accompanied by the political project of a special kind of universal jurisdiction. The "policeman of the world" wants to become the "judge the world", as reported by Vittorio Zucconi in a correspondence from Washington According to this project, "all of them, the soldiers, the accomplices and the cells of Al Qaeda, wherever they are captured or arrested in Milan as in Kandahar, such as Hamburg, London, will be handed over to the courts-martial that the Ministry of Justice and the Pentagon are preparing. "(cf. Republic on December 2, 2001).

However, with regard to Europe, this project is bound to encounter an obstacle not easily overcome: the European Convention on Human Rights, which the Protocol. 6 abolished the death penalty and has removed the possibility for States Parties to the Council of Europe to inflict so much, how to carry out executions. This constitutes an obstacle in principle to extradition to the United States for all those people who are accused of crimes for which can be punishable by death (as are all those under the jurisdiction of the Special Court for Bush) . With regard to Italy, the Constitutional Court, in the case of Pietro Venezia, has placed a barrier to extradition to countries that provide unsurpassed within their jurisdiction the death penalty, declaring the unconstitutionality of Article II paragraph. 698 of the Code of Criminal Procedure (rule allowing extradition for an offense for which the foreign state is expected the death penalty on the condition that they were provided sufficient assurance that the death penalty would not be carried out). There are not enough guarantees - the Court held - extradition is never permissible when the death penalty - albeit not executable - is scheduled into the state requesting the extradition.
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