Tuesday, July 1, 2014

From Roger Fitch and our Friends down under at Justinian.

End of term
Wednesday, July 2, 2014
Justinian in Guantanamo, Law of war, Military Commissions, Roger Fitch Esq, Same-sex marriage, US Supreme Court

Supreme Court lets God into the Affordable Care Act ... And strikes down certain compulsory union dues ... At last - a Guantánamo detainee charged with a genuine war crime ... Obama's Taliban prisoner swap ... Whatever you do, don't shoot at an American in a war ... From Our Man in Washington, Roger Fitch 
THE Supreme Court ended its term with a bomb.  
In Burrell v Hobby Lobby, a new class of God-fearing corporations has been allowed to evade – on religious grounds – the contraception coverage that the Affordable Care Act requires in employee health insurance. 
This new-found piety in closely-held corporations is based on the First Amendment's personal religious freedom, but the all-Catholic-male majority put its faith in the Religious Freedom Restoration Act
It's the same RFRA whose protections were denied to Muslims in Guantánamo by the DC Circuit in Rasul v Myers on the basis that Gitmo detainees were not persons in the meaning of the Act (see Fitch of January 22, 2008). 
Thus, some corporations now have personal religious freedoms, while other, flesh-and-blood persons don't.  
Scotusblog has more on Hobby Lobby here
The end of term also brought bad news for unions.
In Harris v Quinn, the court struck down certain compulsory union dues. 
NLRB v Noel Canning, another big decision in the term's final weeks, concerned the presidential power to make recess appointments; the president lost, but in defining "recess", the court rejected the partisan DC Circuit's "originalist" reasoning.
Warrants will be required for mobile phone searches.     
The Court refused to consider the journalist privilege case of NY Times reporter James Risen.
In Hall v Florida, Justice Anthony Kennedy did the right thing on mental disability death penalty cases.  
It's been a year since the Supreme Court decided the marriage equality case US v Windsor, and all 50 states have now had challenges filed to laws that restrict marriage to opposite sex partners.  None of the appeals (by states, thus far) reached the Supreme Court this term.
Here's a review of the federal appeals stage; only the conservative 5th Circuit (Texas, Louisiana, Mississippi) seems likely to sustain same-sex restrictions.
Marshall: led the same-sex marriage tide on state appeal courts
As the tally of jurisdictions allowing same-sex marriages stood at 19 states, DC, and several Indian Nations, the Washington Post interviewed Margaret H. Marshall, former Chief Justice of the Massachusetts Supreme Judicial Court.  
Marshall presided when the SJC - the oldest appellate court in the Americas – became the first in the US to recognise such marriages.  As in its 1783 abolition of slavery, the court made its 2003 decision based on a straightforward reading of the Massachusetts constitution.
The lower court consensus on marriage equality may influence the Supreme Court's jurisprudence on the subject. Perhaps the cases will not, in the end, run afoul of the Supreme Court and the goals of its "movement conservative" majority.
Nothing is certain, however.  Long-time Supreme Court observer Linda Greenhouse has reluctantly concluded that there is now an unmistakable ideological agenda among the Republican justices, one that includes surreptitiously dropping unnecessary dicta in current cases for future, more sinister, use.  
An example of recent majority law-making – extinguishing class actions through compulsory arbitration - has been written up in the current Washington Monthly.
It seemed the right time for revelations that the court retrospectively alters opinions.  John Dean comments
*   *   *
IN the latest chapter of America's long-running experiment in improvised justice, the Iraqi Abd al-Hadi has been arraigned at a Guantánamo military commission, charged with genuine war crimes. 
It's a first, aside from some previous charges that, sadly, didn't even occur during war (e.g. al-Nashiri, below).  The Miami Herald has more
Naturally, the Pentagon threw in a fake charge for good measure, with pages of "overt acts" unrelated to the Afghan war and/or occurring as early as 1996, to support the invalid charge of conspiracy, recently dropped from the other commission prosecutions.
In some irrelevant allegations the Pentagon seemed about to extend the unique battlefield impunity that US soldiers enjoy to Canadians and other allies, but on closer inspection, all but one act injuring an ally seems to have involved the commission of a valid, recognised, war crime.  
It's complicated, but for now, only US soldiers can shoot at, but not be shot by, disfavoured belligerents.     
Nevertheless, the al-Hadi case represents real progress for the commissions, after years of claiming as war crimes, things that were ordinary acts of wartime hostilities or that occurred outside any armed conflict.
*    *   *
Bergdahl: Taliban prisoner swap
AN exchange of US and Taliban prisoners has caused controversy in the States.  
Mr Obama, it's true, failed to give Congress 30 days' notice, but the exchange itself seems unremarkable.  
Sgt Bowe Bergdahl, a US soldier held unlawfully by the Taliban for five years, was released in exchange for five Taliban prisoners including high military officials who were unlawfully denied prisoner of war status by the US for 12 years at Guantánamo.  
It seems odd the administration has to defend its release of Taliban prisoners – real military prisoners, unlike most at Gitmo, and men, moreover, imprisoned for years in conditions violating the Geneva Conventions - in an exchange for a US soldier held captive in tough conditions by the Taliban.
Nevertheless, there were claims that the Taliban soldiers were "too dangerous" to be released, and much was made of the possibility that Sgt Bergdahl deserted.
House Republicans, unversed in the Geneva Conventions, were shocked, and with media help, described the Taliban generals and government officials as "terrorists", notwithstanding their capture in a war with the US in which they were lawful belligerents.  
It's come to this: anyone - military or civilian - opposing US soldiers is now a terrorist.  
Yet as law prof David Glazier points out,  "the law of war does not proscribe the routine killing of combatants, even by those with no right to participate in hostilities" (see post of September 13, 2010). 
To be sure, two of the prisoners may have committed acts of terrorism, indeed war crimes - before the US arrived in Afghanistan - but in the context of US involvement, the exchanged Taliban are simply prisoners from the US-Afghan war.  
Martins: chief Guantánamo prosecutor
In fact, the chief prosecutor at Guantánamo, Brig General Mark Martins, implied they couldn't face prosecution in a US military commission because their alleged war crimes occurred in 1998, before the US was involved, and the general suggested they might be prosecuted in other fora, e.g. international tribunals. 
Even so, Gen Martins is continuing his death penalty prosecution against Abd al-Rahim al-Nashiri for events occurring in 2000, before the US was at war. It's a classic case of Pentagon cognitive dissonance.
A Murdoch presenter thought execution should be considered for Sgt Bergdahl, but the soldier needn't worry:  only one American deserter has been executed since the Civil War, and desertion may not be a capital offence now. 
Whatever. With cries of "Benghazi and Bergdahl," the Republicans are ginning up their sham scandal machine for the 2014 election.   
It always works a treat with hapless Democrats and a confused electorate, and this year the Republicans will be aided by the deep pockets of the Koch Brothers (net worth: $100 billion) and, by some claims, 300 other billionaires.
It's all part of the rich tapestry of American political life, freed by the Supreme Court from onerous election finance laws.

Thursday, October 3, 2013

From My Friends Down Under At Justinian....

More blockbusters coming to you

Israel given unfiltered NSA data ... All phone calls in the US are "relevant to terrorism" ... Defence contractor successfully sues torture victims for costs ... NY designates city mosques as "terrorism enterprises" ... US Supremes in need of a code of conduct ... Nixon on judicial appointments ... Roger Fitch files from the town in the process of shutting down  
David Miranda (right): dodgy detention at Heathrow
BEING "mirandised" took on a new meaning last month at Heathrow Airport
There's more here and here on the dodgy detention of Glenn Greenwald's Brazilian partner David Miranda and Brazil's response.
The British spy agency GCHQ even resorted to self-abasement before UK courts to get the right to look at the Miranda material, claiming its agents might be recruited by foreign enemies, if names were known.  
Section 7 of the UK Terrorism Act was used again at Gatwick Airport to detain another Obama critic. Isn't the UK-US relationship "special"?
Fresh from overseeing the smashing of computers at the Guardian, the British spooks next demanded the NY Times destroy its copy of Snowden's revelations; their alarm was understandable, if you look at GCHQ's training slides.
In the US, the scandal keeps spreading, with the news that the NSA has already hacked or stolen the encryption keys it needs to read most of the world's communications. Indeed, NSA supercomputers make encryption pointless.
Obama has been even more "aggressive" in spying than George Bush, lifting restrictions on the collection of Americans' data imposed by the previous government.
The FISA court released a number of newly-declassified orders approving collections of data, but their reasoning seems at odds with Supreme Court decisions.  
It's not surprising, with no counter-advocacy.
In fact, the FISA court reports no US telecom has ever challenged its orders.
Industrial espionage by the US has now surfaced - in Brazil - and that country has considereddropping out of the Internet altogether
The US Memorandum of Understanding giving Israel raw unfiltered NSA data on Americans could be a model for agreements with other foreign "friends", e.g. Australia.  
The Justice Department is now asserting that all phone calls in the US are "relevant" to "terrorism".
If a Smartphone is used, a lot more is on tap.
According to Der Spiegel, the NSA finds Smartphones offer a data bonanza. 
Foreign companies are benefiting as a result. Deutsche Telekom is enjoying a boom in its email business.
*   *   *
CONFLATING war with civilian terrorism in order to justify indefinite military detention is still a popular pastime of the US government.
A critical study of America's other Guantánamo - Bagram prison in Afghanistan, which holds non-Afghans - mainly Pakistanis - has been released by the human rights law firm Justice Project Pakistan.  
At the moment, non-Afghan Bagram prisoners have three habeas claims in court in the DC Circuit for the second time.  
There's more here on Maqaleh and other non-Afghans held in Afghanistan, some taken to a war zone for the express purpose of defeating their habeas claims. 
One of the petitioners, the Pakistani Amanatullah, was removed from occupied Iraq to Afghanistan.
According to British courts who heard the case of the similarly-situated Bagram prisonerRahmatullah that's a war crime.  
Scotusblog has more on the DC cases. 
Some prisoners of the US who remained in occupied Iraq - in accordance with the Geneva Conventions - were left to the tender mercy of mercenary interrogators at the Abu Ghraib prison.
A few brought civil suits in the US for their mistreatment. Recently, these plaintiffs unexpectedly lost their suit, based on the trial judge's contentious interpretation of the Supreme Court's recent Kiobel decision (see post of July 2013) on the scope of the Alien Tort Statute.
The triumphant defence contractor CACI International, who provided the contract "interrogation services" at Abu Ghraib, had the chutzpah to counter-sue the torture victims for costs, and they've been granted.
There's background here and here, plus earlier posts on the case here and here
*   *   *
Mosques next to be frisked
THE New York Police Department was rebuffed by both the courts and city council for its racial-profile "stop and frisk" policy.  
Now NY's finest are in the news again, with a novel counter-terrorism policy: by merely designating the city's mosques "Terrorism Enterprises," NYPD investigations can proceed with a minimum of fuss.  
More here.  
If upheld, this interesting gloss on the First Amendment could supply a much-needed precedent for investigating turbulent priests and rabbis. 
*   *   *
Ginsburg: dismayed by the Roberts court majority
DURING the summer recess, Supreme Court Justice Ruth Bader Ginsburg let loose on the Roberts Court for its blatant activism.
Now, as the October term of the Supreme Court approaches, proposals are being made for a code of ethics for the court.  
It's the only federal court without such a code, and it helps explain Bush v Gore, where at least three of the Bush-selectors had invested their family's future in the winning regime.
The court's first big case in the new term will be McCutcheon v Federal Election Commission,testing campaign contribution limits.  It has alarming implications for US elections. 
Another blockbuster case on its way to the court concerns the Texas vote-suppression laws. Faced with a permanent white minority in Texas, the Republican state has applied its new voter ID law.  
It's designed to knock the Hispanic plurality vote on the head, simultaneously disenfranchising poor blacks and university students. The latter wonder why they can't use student IDs, when concealed weapon owners are allowed to vote with their gun permits.  
The US Justice Department has sued Texas, and they've been joined by others.  
A case unlikely to be granted certiorari is that of Ali Saleh al-Marri, the Qatari who holds the distinction of being the only civilian - other than José Padilla - arrested on US soil and designated one of George Bush's imaginary "enemy combatants".  
Although he is now in prison after a lawful conviction in a civilian court, al-Marri preserved his right of appeal against one of the most infamous manoeuvres of the Bush Regime.
*   *   *
Nixon and Haig: looking for the "meanest right wing" judges
MEANWHILE, the criteria for selecting US federal judges – Supreme Court included - have received fresh light.  After forty years, the Nixon Library has released the final batch of the former president's incriminating audio tapes.   
In a July 12, 1973, conversation with his chief of staff Al Haig, Nixon may be heard discussing future judicial nominations, urging Haig to find the "meanest right-wing" nominees. 
The newly-released tapes lay out the Republican strategy for judicial appointments, now successfully implemented, especially in DC, and in the three southern circuits with a generous supply of pertinently-skilled lawyers.

Sunday, August 18, 2013

From Roger Fitch and my Friends down under at Justinian...



You're under surveillance

Attorney General Holder promised the Russians that the US wouldn't torture Snowden, and they still wouldn't hand him over ... NSA's "network security agreements" with helpful telecoms ... Stacking the Foreign Intelligence Surveillance Court with Republicans ... Roger Fitch, Our Man in Washington, on the inner workings of a non-functioning democracy 
"Gentlemen do not read each other's mail" - Henry L. Stimson, Secretary of State (1929) 
"You need a haystack to find a needle" - Gen. Keith Alexander, Director, National Security Agency
*   *   *
IT was a surreal Post-Cold War moment, not unlike the day a humble Donald Rumsfeld visited the former KGB torture site in Vilnius, Lithuania - now a memorial to Soviet brutality - as the CIA tortured Pentagon captives nearby.
This time the irony lay in a US Attorney General writing to his Russian counterpart - whose president is a retired KGB Lt. Col. - solemnly assuring him that the US wouldn't torture or kill Edward Snowden if he returns to the US.   
AG Eric Holder also offered to issue Snowden a special travel document for the US - how nice is that?
Even if Russia had an extradition treaty with the US, some countries reject extradition to America on the basis of its civil and military justice systems.  
In 2011, the Canadian courts refused to extradite Omar Khadr's brother Abdullah, and last month a Dutch court denied extradition of a terrorist suspect possibly tortured in Pakistan with US connivance.  
The flight of Snowden - and the secrets he holds about National Security Agency surveillance (more here) - has led to an unusual outbreak of interesting political journalism in the US. 
Snowden: the US promised the Russians he would not be tortured
The Atlantic and FindLaw had ideas for avoiding surveillance.  
More suggestions are here, but they're all doubtful in light of NSA's just-disclosed XKeyscore program.   
The Guardian noted that the encryption services used by many people (see last post) can be bypassed by NSA through its collaboration with Microsoft.
Both organisations pay dubious "bounties" to freelance hackers who find flaws in computer codes, theirs or - in NSA's case - someone else's . 
The Washington Post described the "Network Security Agreements" the NSA enters with helpful telecoms, designed to make electronic communications insecure enough for the agency to save, record and read them unhindered.
It seems one of the companies signing-up was Telstra, at the time it was government controlled. 
It's no wonder the telecoms participate: surveillance deals are lucrative. Even the British GCHQ is getting paid by the NSA.  
*   *   *
Chief Justice Roberts (right): stacking the FISC
IN my July post I mentioned that the Foreign Intelligence Surveillance Court, which unfailingly approves NSA requests, is packed with Republicans friendly to the security state.
Chief Justice John Roberts is doing the packing.  
More here and here.
Some say the real problem is a lack of adversarial proceedings in the FISA court, a view backed by two former members of the court here and here
Meanwhile, NSA has sent spooks to Capitol Hill to testify about the degree of separation among targets:
"A three-hop query means that the NSA can look at data not only from a suspected terrorist, but from everyone that suspect communicated with, and then from everyone those people communicated with, and then from everyone all of those people communicated with."  
Ars Technica has more
When justifying itself, NSA relies on its own unique definitions of common words and phrases such as "collect" and "foreign target".  
The agency resists FOI requests by resorting to the defence of incompetence, pleading aninability to search its own email database
ProPublica has a guide to the pending NSA cases, including a new lawsuit against NSA in federal district court in California, more here.  
It's not often you get the Unitarian Church and the NRA on the same side in a case.
The Electronic Privacy Information Center (EPIC) is attempting to take the NSA directly to the Supreme Court in a mandamus action. Former Nixon counsel John Dean reckons it's a good idea.  
*   *   *
NSA: trouble searching its own databaseLAST May it was revealed that the Department of Justice had secretly seized phone records of the Associated Press, ostensibly to investigate leaks about the CIA.
Now, a more serious assault has been made on the media, in two federal court cases involving journalists.  
In the first case, reported in May, the FBI obtained a search warrant for the email account ofFox News reporter James Rosen, based on the "probable cause" that he had violated theEspionage Act.
It's the first time the government has suggested it's an espionage violation for an ordinary journalist to communicate with his whistleblowing source
Secrecy News has more. 
In the other case, a divided 4th Circuit panel ordered James Risen of the NY Times to testify in the criminal trial of a former CIA agent, finding there's no journalist privilege.  
There's now an en banc appeal
It's enough to put US newspapers off reporting. In fact, as Kevin Jon Heller notes, it leaves the anonymous, WikiLeaks, model of investigative reporting as the only viable way to report on information the government classifies secret. 
A third trial threat to journalism has been the "Aiding the Enemy" charge against US soldier Bradley Manning, where the government argued it was "aiding the enemy" to release information to WikiLeaks that might be read by Osama bin Ladin, even if he read it in theNew York Times. 
The "Aiding the Enemy" charge depended on a single inapposite Civil War case.
Manning was acquitted of this particular charge, but several Espionage Act convictions were recorded, more here
 *   *   *
Carter: worried about democracy in America
DISSENT has broken out at the Lawfare blog.
Law profs Ken Anderson and Peter Margulies, joined by Lawfare's resident bush-lawyer Ben Wittes, filed an amicus brief in the DC Circuit's pending en banc consideration of Al-Bahlul, the military commission appeal.  
The terror-tragics support the government's position that the conspiracy conviction can be sustained even though conspiracy isn't a war crime.
On the other side, Lawfare's Steve Vladeck agreed with Opinio Juris's Kevin Jon Heller, who ridiculed the filing here and here.  
Margulies responded here, but Heller and Vladeck had nearly the last word.
Meanwhile, the Pentagon's man for Detainee Policy, William Lietzau - who helped George Bush set up the whole detention-commission apparatus - retired, and announced thatGuantánamo detainees should have been kept in Afghanistan and treated as prisoners of war all along. 
Perpetual detentions, trumped-up laws of war, assassinations and universal surveillance were all too much for Jimmy Carter.
In July he was quoted as saying, "America does not at the moment have a functioning democracy".

Friday, July 12, 2013

From Roger FItch and our Friends down under at Justinian

Straying from the rightful path

Corporate mercenaries settle with Iraqi victims ... While Abu Ghraib contractor ducks liability for torture ... Corporates and conservatives generally pleased after Supreme Court's latest term ... British newspaper scoops US media on major security story ... Spying on attorneys at Gitmo ... Our Man in Washington, Roger Fitch, reports 
IT'S hard to find a case where the US has strayed further from fairness and the rule of law than that of Abd al-Rahim al-Nashiri, now on trial before a military commission at Guantánamo.
Nashiri was named as an (unindicted) co-conspirator in the NY trial of several men charged in the 2000 bombing of the US Cole in the Gulf of Aden yet, when captured in 2002, he was sent to Thailand for CIA torture rather than Manhattan.  
In 2006, George Bush decided to send some real terrorist suspects to Guantánamo, though apparently no one associated with war, the ostensible basis for Gitmo. Nashiri was among them.  
His torture, acknowledged by the CIA and documented by the ICRC, the CIA Inspector General and the Senate's still-secret report on CIA torture, would likely block any civilian trial in a US court.
It proved no bar, however, in the Pentagon's flexible military commissions, where he was charged with sundry "war crimes" occurring before there was any war, in a place - Yemen - at peace.
If there had been hostilities, the Cole would have been a valid military target.  
By contrast, fellow Guantánamero Ahmed Ghailani, accused of the 1998 US Embassy bombings in East Africa - another civilian terror attack - was successfully tried in US federal court.
No matter. Obama's lawyers charged Nashiri in a military commission.
In Nashiri, the Pentagon seeks a death penalty against a man its own mental health experts say suffers from PTSD; apparently, it's a result of CIA torture.  
While it wasn't the military that tortured him, torture - military included - has implicit impunity: every torture claim, arising from US adventures in Afghanistan or Iraq, and filed in an American court, has been ruthlessly extinguished (see below).  
*   *   *
THE Supreme Court continues to distance itself from anything associated with George Bush's wars.  
On its last day, the court denied certiorari in the civil damages case of Vance v Rumsfeld.   
After Donald Vance was imprisoned and mistreated on the orders of former Defence Secretary Donald Rumsfeld, the Obama administration went to court to block any legal remedy in the US.  
A divided 7th Circuit en banc decision led to Vance's Supreme Court appeal
Precedent was against him: a 2009 DC Circuit case (also denied certiorari) found that at the time of Rumsfeld's actions, there was no clearly-established right not to be tortured while in military custody. Who knew?  
Abu Ghraib: contractors settle some claims, other thrown out
Nevertheless, in a recent development, one of two corporate mercenaries sued for the torture and abuse of detainees at Abu Ghraib, L-3 Services, agreed to settle with 71 Iraqi victims for over $US5 million.  
The other case, against the notorious Abu Ghraib contract interrogator CACI, was about to go to trial when the Kiobel case - interpreting the Alien Tort Statute - was decided (see May post). 
Immediately, the defence seized on Kiobel to have the ATS-based claims dismissed.
Federal judge Gerald Bruce Lee (Eastern District of Virginia) duly dismissed the claims in Al Shimari v CACI International , more here, based on his reading of Kiobel
More on the Al Shimari case here
In fact, the Kiobel rationale does not preclude ATS suits, given the US citizenship of the defendants and the fact that the case "touches and concerns" the US. 
More here.
Another ruling by Judge Lee, in Ameur v Gatesthrew out the ATS claims of a former Guantánamo prisoner.  
*   *   *
Thomas: Former Monsanto lawyer sitting on Monsanto case
THE Supreme Court has ended its 2012 term, and Scotusblog has a statistical analysis of its decisions
There were many notable decisions, including an equivocal opinion in the pay-to-delay generic drug case
In American Express v Italian Colors, the Supreme Court continued its line of cases imposing arbitration on class action claimants. More here
Monsanto unanimously won its (Roundup-Ready seed) patent exhaustion case in the Supreme Court. Former Monsanto lawyer Clarence Thomas joined in. 
In another patent case, however, Justice Thomas announced that - contrary to a recent Australian decision - Myriad Genetics cannot patent a human gene that's a product of nature.  
More here and here
The Supreme Court has finally opined that actual innocence of a crime is important, after all. It was one of two cases in which the court sided with prisoners
Overall, conservatives and business groups have much to celebrate from the term just ended, comment here.  
Republicans are doing high fives after CJ John Roberts struck down the key provision in theVoting Rights Act
Justia columnist Marci Hamilton doesn't think the court's Shelby decision is such a big deal, but others disagree and more.   
Another last-week decision pleasing the Chamber of Commerce and alarming the plaintiff bar is Vance v Ball State University, which reduces employer liability for workplace harassment. 
Justia's Joanna Grossman considers the new supervisor standard invented by the majority.     
The "gay" decisions came out the last few days of the term, more here and here.
*   *   *
NSA surveillance and data mining
THE Obama administration relies on a certain self-censorship by the Big Six US media oligopoly (see graphic), and lately it's been left to foreign newspapers to provide much of the investigative journalism Americans once took for granted.  
Even so, it was surprising to see Britain's Guardian declared off-limits to US military personnel following its disclosure of a secret order of the Foreign Intelligence Surveillance Court (FISA court) enabling warrantless surveillance of communications worldwide.
Big Media scrutiny of the NSA and its ex parte submissions to the FISA court is slowly improving, with reports about, e.g. the court's almost entirely Republican membership and its far-reaching secret decisions
It was left to the Guardian to reveal the FISA court's approval of the collection of US emails by NSA, now discontinued, and the US spying abroad that is causing particular outrage in Europe.
It's been great for encryption services, now used to thwart lawful government wiretaps as well as the less legal eavesdropping of the NSA.
The Army-banned Guardian is reporting that 26 Senators have written to the Director of National Intelligence objecting to the practices of the NSA.  
The NY Times famously learned about the Bush/NSA illegal spying in 2004, but suppressed its story until after the presidential election that year. The current scandal, however, is receiving immediate criticism. 
*   *   *
SETON Hall University Law School has a new studySpying on Attorneys at GTMO (commenthere). 
Lawyers face other problems than spying, e.g. the cancellation (since rescinded) of civilian flights to Cuba, genital searches (clients, not counsel) and general harassment (see here andhere).
There are also convenient equipment lapses, e.g. the well-timed failure of a Pentagon computer server which caused the loss of Nashiri defence documents just before the hearing where they were needed. More here.
Luckily, it's only a death penalty case. 

Saturday, May 11, 2013

From Roger Fitch and our Friends Down Under at Justinian


US soldiers are special: they can shoot, but they can't be shot

US government has its very own radical Islam website ... Judge overrules some of the FBI's denial of rights to Boston bombing suspect ... Canadian to appeal Guantánamo conviction ... Guilty plea to invalid charges ... Pentagon citing Civil War precedents in Bradley Manning stitch-up ... From Roger Fitch, Our Man in Washington 
Boston marathon bombings: "public safety exception" for accused
THE amicus intervention in Kiobel v Royal Dutch Petroleum by the UK and Dutch governments has paid off handsomely, with the Supreme Court ruling against the suit by Nigerians resident in the US who allege human rights violations by Shell in their native country.  
More here on this keenly-awaited decision, including this symposium at Opinio Juris and aNY Times comment.   
*   *   *
THE FBI is having difficulty retrieving private data from the computers of recalcitrant tech companies.
Google, for one, is fighting warrantless "national security letters", and the government is cooking up legislation to punish them for resisting court orders. 
The FBI is actually quite adept with computers. A recent arrest in Chicago revealed that the agency proactively maintains - for the benefit of would-be bombers having trouble finding such sites - the US government's very own radical Islamic website, calculated to incite acts of violence among those still undecided.
Some US district judges are showing backbone in dealing with such devious FBI tactics.
A Houston judge, for instance, declined the agency's audacious bid to hack computers andinstall Trojan viruses on them just to gather incriminating evidence from the unsuspecting. 
In Boston, meanwhile, the FBI seized on the rarely-invoked "public safety exception" to the requirement of informing a defendant of his right to remain silent. 
In the Boston Marathon bombing, the FBI didn't warn the defendant, and questioned him as he lay wounded in a hospital bed.  
Then a federal judge had the temerity to intervene sua sponte and provide constitutional protections to the man charged in the bombings.  
The FBI had already used the "terror" opportunity to deny counsel, not something that's included in the Quarles public safety exception to Miranda.   
More here and here
Thanks to federal charges against the alleged Boston bomber for using "weapons of mass destruction," he could face a death sentence; unlike Massachusetts law, some federal crimes carry the death penalty.
No doubt we will also be hearing about the (shudder) Antiterrorism and Effective Death Penalty Act.  
A recent decision of the conservative 11th circuit highlights the chilling and perverse effects of the AEDPA in stifling even meritorious death penalty appeals.  
More here
*   *   *
IN a surprising development, the DC Circuit has agreed to hear the Al Bahlul military commission appeal en banc even though the votes to overturn the earlier DC panel's decision don't seem to be there.  
Scotusblog and Lawfare have more.   
It's not clear whether the court will consider Al-Bahlul's First Amendment and Equal Protection claims
Relying on the Al Bahlul precedent, Canadian Omar Khadr plans to appeal his Guantánamo convictions in the US, testing whether a guilty plea can prevent a subsequent legal challenge where the underlying charges are found invalid. 
Since his release from Gitmo pursuant to a plea deal, Khadr has been confined in a maximum security Canadian prison. In addition to his meritless MST and conspiracy convictions, he has the distinction of being perhaps the first "combatant" ever convicted of a "war crime" of "murder" for killing a uniformed soldier in lawful combat.  
To be fair, the dead soldier was an American; and that, of course, changes everything. US soldiers are special:  they can shoot, but they can't be shot.
David Hicks' original Aussie lawyer, Stephen Kenny, will also be lodging an appeal in the US, based on the Hamdan and Al-Bahlul decisions. 
Slate, meanwhile, has published excerpts from the memoirs of a current detainee at Gitmo; it's worth reading for the torture revelations.   
In April, yet another authoritative report on US torture was published, this one by a non-partisan panel chaired by a Republican, who was an official in Bush's Department of Homeland Security. 
The NY Times has more on the Constitution Project's 600-page report.  
Andrew Sullivan faulted the Times' previous torture coverage, while the Atlantic'sAndrew Cohen got the reaction of one of the torture victims, Omar Deghayes.
Gratifyingly, one high government official has now gone to jail for participating in the CIA's grotesquely illegal torture-abduction program: an Italian intelligence chief.  
There's still no danger of being jailed in the US unless, like John Kiriakou, it's for exposingCIA torture
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Caitlin Halligan: top lawyer for DC Circuit blocked by Republicans, again
OBAMA'S highly qualified candidate for the DC Circuit, Caitlin Halligan, was blocked once again by Senate Republicans and has withdrawn.
She was one of 33 judges renominated in this session of Congress.
Now the DC Circuit is four judges short of its full complement of 11 judges (four additional judges have taken senior status).
With the prospect that Obama could add four Democrats to the present division among active judges of four Republicans and three Democrats, the Republicans want to reduce the number of judges to eight, and who can blame them for trying?  
More here.       
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ALWAYS on the cutting edge of law, the Pentagon is citing US Civil War precedents to stitch-up Bradley Manning, despite the scorn poured on its newly–invented "US common law of war" in recent military commission rulings of the DC circuit. 
The US Court of Appeals for the Armed Forces has meanwhile handed the government a 3-2 decision on jurisdictional grounds that allows the Manning trial judge to withhold court filings and orders, in a case brought by leading US media organisations.  
The three majority judges were all appointed under the Bush administration, and the dissenters were appointed in Democrat administrations. 
Steve Vladeck has more
Because of Pentagon obstruction, a volunteer is having to amass the record of Manning's trialfor other journalists.
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Sandra Day O'Connor with her sponsor: second thoughts about Bush v Gore
THE US presently has the most conservative supreme court in perhaps 80 years, one that effectively perpetuated itself on December 12, 2000 by installing a conservative Republican president guaranteed to appoint partisan "movement conservatives."
Subsequently, Chief Justice William Rehnquist died, Sandra Day O'Connor resigned, and Mr Bush duly appointed John Roberts and Sam Alito, hardened Republican operatives and Reagan men.
Now, one of the surviving Republicans who appointed Bush president is having second thoughts. 
In light of what followed, Sandra Day O'Connor now wonders if it was a good idea for the court to take Bush v Gore.  
Slate's Emily Bazelon reflects on what might have been, while the Times' Linda Greenhouse gives some historical perspective on judicial regret