From Roger Fitch and our Friends Down Under at Justinian

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

ROGER FITCH ESQ • WEDNESDAY, MAY 8, 2013

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.  

Nevertheless, it's not all bad news for human rights lawyers.

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 11^th 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. 

*   *   *

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.       

*   *   *

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.

*   *   *

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. 

From Roger Fitch and our Friend Down Under at Justinian

Glory, glory, hallelujah

ROGER FITCH ESQ • SUNDAY, APRIL 14, 2013

Old guard rallies to the cause of female CIA agent glorified fictionally in Zero Dark 30... Latest from US Supremes, including forthcoming important gene patent case ... Secret no-fly lists tested in court ... DoJ's sweetheart deals with badly behaved banks and bankers ... George W. Bush's Liberty and Freedom Institute opens for business ... Our Man in Washington 

Brennan: ably assisted by CIA villains

JOHN BRENNAN has been sworn in as CIA director, using a copy of the Constitution without the Bill of Rights. 

Ably assisted by an interview committee composed of CIA villains, Mr Brennan is already busy advancing the careers of CIA operatives implicated in crimes, such as the acting and proposed director of CIA Clandestine Services.  

A right-wing Washington Post columnist was outraged that this worthy woman's (torturous) past might be held against her, just when it seemed the CIA's infamous glass ceiling might crack. 

Naturally, the torture counsellor John Yoo was also upset.    

More here and here on the promotion of the female CIA agent glorified fictionally in the filmZero Dark 30 (see January post).  

One of the accusations against this person is her unauthorised visit to Poland to witness the CIA torture of Khalid Sheikh Mohammed, now being tried at Guantánamo.

The CIA acknowledges water-boarding two other men held in Poland, Abd al-Rahim al-Nashiri and Abu Zubaydah and, interestingly, the  now acting CS director helped organise the destruction of videotape evidence of their torture - formerly a federal crime.

Both Nashiri and Zubaydah are suing Poland for torture in the European Court of Human Rights. 

More here.

*   *   *

"Who decides the laws of war?" - was the recent NY Times headline after the DC Circuit struck down convictions for faux war crimes the government obtained in Guantánamo's unique military commissions. 

Prof Steve Vladeck now offers help, with a guide for using real courts to collaterally attack rulings of the Gitmo commissions and to appeal decisions of the Pentagon's drumhead Court of Military Commission Review.    

Complementing it is a new history of the military commissions by the Wall Street Journal'sJess Bravin.  

One of the CMCR cases the government lost has been appealed.

The DoJ conceded the Bahlul case in the DC Circuit and asked the court to vacate the convictions of Al Bahlul in the light of the Circuit's decision in Hamdan II, which the government decided not to appeal.  

The Circuit duly vacated Al-Bahlul's convictions, but now the government wants a Bahlul en banc hearing.

Al Bahlul's brief is here.

*   *   *

US Supremes: plenty of pending decisions

The final oral argument docket of the Supreme Court for this term has been announced and includes the contentious Myriad gene patent case.

The Monsanto gene patent dispute has already been heard but, leaving nothing to chance, Congress has passed what is popularly known as the "Monsanto Protection Act".

It's part of a spending bill and benefits agricultural gene manipulators who - co-incidentally - contribute substantially to particular congressional "re-election" funds.

More here on this alarming development which, luckily, is temporary.  

The Guardian has more.  

In two new decisions the Supreme Court continues to undermine class actions.

Narrowing eligibility criteria tends to force economically unviable individual arbitration on plaintiffs. More here.

The two "gay" cases before the Supreme Court this term (see March post) have now been heard.

The second case, testing the constitutionality of the Defence of Marriage Act, involves estate taxation, but over 1,100 other federal laws and entitlements are implicated.  

The pay-for-delay generic drug case has now been argued.  

And finally, the Court has decided two sniffer-dog probable cause cases involving the state of Florida.

One case was decided in an unexpected way, and it's all down to "curtilage". Remember that? More here.

The other case went the other way, clearly showing the distinction between curtilage and carriage, or rather, porch and car.

*   *   *

In genuine dictatorships - and Britain - they revoke your passport and declare you an ex-citizen, as David Hicks discovered to his cost. 

In the US, expatriation is more devious.

Typically, it's done by means of secret "no-fly" (or "no-sail") lists, which can also affect foreigners with valid residence visas, as in this San Francisco case.

An Oregon case tests these underhanded practices as applied to citizens.

There's even a "no-leave" list for citizens who can't get out of the US, as an Islamic Oklahoman discovered: he now travels the hard way. 

*   *   *

Breuer and Holder: banks too big to prosecute

The Justice Department continues to make sweetheart agreements with giant banks responsible for the economic collapse of 2008, with no admission of guilt or prosecution of executives, even when their actions were clearly felonious.

Even foreign banks benefit, e.g. the settlement with HSBC for laundering nearly $900 million in drug money for violent crime cartels.

Attorney General Eric Holder has now admitted that some banks (e.g. HSBC) are just too big to criminally prosecute and so they haven't bothered.

Matt Taibbi has more on "deferred prosecutions" where - after a government shakedown - payment of a symbolic fine gets the bank off the hook no matter the crime.  After all, they're "too big" to let fail.

Lanny Breuer, the chief of DoJ's Criminal Division, has meanwhile retired.

Not criminally prosecuting anyone on Wall Street during his time as Assistant AG has paid off handsomely for Breuer, who will join a who's-who of other revolving-door Wall Street lawyers at Covington and Burling.  

The NY Times has more.   

The Securities and Exchange Commission's friendly settlements are also being treated with suspicion, by federal judges (more comment here), but it's not clear the judges have anyauthority to force the hand of government lawyers 

*   *   *

Bush: new presidential centre to glorify his deedsThanks to Barack Obama and a still-compromised Justice Department, statutes of limitations for Bush administration crimescontinue to run out. 

It's a good thing, too, as the George W. Bush Presidential Centre (Library and Freedom Institute) is ready to open.  

Many people supposed that a George W. Bush Library would feature virtual enhanced interrogations and the like, but there's no sign of torture cell mock-ups, hands-on handcuffs or interactive games with black-garbed rendition teams pouring water down the throats of helpless detainees.

Instead, the "public policy institute" attached to the library (or liberry, as Mr Bush might say) will evidently have as its function theglorification and justification of the appointed president and his deeds.

That's something Mr Obama and other ex-presidents can understand. They'll all be there for the opening. 

From Roger Fitch and our Friends down under at Justinian

Washington notebook

ROGER FITCH ESQ • FRIDAY, MARCH 8, 2013

Gongs for drone crews ... Military detention for civilians ... Australia listed among the countries that collaborated with the CIA's "detention, rendition and interrogation" program ... Court vacancies at crisis point ... NRA lobbying on judicial appointments ... Clarence Thomas speaks ... Roger Fitch - Our Man in Washington  

Drone pilots: all set for Distinguished Warfare Medals

"Sometimes I think it should be a rule of war that you have to see somebody up close and get to know him before you can shoot him."

Colonel Potter (M.A.S.H.) 

COLONEL Potter's observation applies in spades to the armed US drones terrifying Afghans and piloted by joystick jockeys in Nevada who hardly know their oft-innocent quarry. 

The Pentagon has nevertheless figured out a way to appropriately recognise its remote assassins, with the new, oxymoronic, Distinguished Warfare Medal. 

It's for desk-bound flight crews of "targeted kills", and meritorious hacking, too.

CIA teams carrying out similar long-distance work from Virginia must, sadly, remain unknown.

Plausibly, these gruesome video gamers could get Purple Hearts for "RSI at the joystick".

They may also need help for the stress they endure in executing people ... sorry, policy.

Unfortunately, a federal judge has ruled that the "legal opinions" authorising drone killingscan stay secret.

Mr Obama's legally-trained accomplices at "Main Justice" must be relieved.  

More here.

Some drone enthusiasts are clamouring for a special court to rubber-stamp "kill lists". Morehere.

Gabor Rona and Steve Vladeck have responded to the notion of a "drone court" to approve "targeted killings."

The controversy, which is now holding-up the confirmation of John Brennan as CIA director, has been fuelled by a leaked administration White Paper that offers a confused mélange of "legal" justifications for the killings.  

More here and here. 

Disappointingly, the terror-hysterics at Lawfare posted a repellent paean to drone killings penned by a professor at a right-leaning law school.  

The author even provided a light-hearted mock-up of a "baseball card" for assassination nominees. 

*   *   *

IN an important case last year, the journalist Chris Hedges and others (Noam Chomsky, Daniel Ellsberg) claimed that the military detention of civilians allowed by last year'sNational Defence Appropriations Act endangered the lawful activities of civilians, including the plaintiff dissidents, journalists and lawyers.  

In Hedges v Obama, the Obama-appointed NY federal judge Katherine Forrest departed from script and found these detention provisions unconstitutional as applied to the plaintiffs.  

The government has appealed in the 2^nd Circuit, andLawfare editor Ben Wittes has a link to the appelleeamicus briefs.

Though just a journo himself, the detention enthusiast Wittes views the briefs as "a lot of red meat for NDAA-haters from that special libertarian land where Left and Right meet ... I disagree with all of them".   

A brief more to Wittes' taste may be found here.  

Judging from the Supreme Court's new standing-based decision in a surveillance case,Clapper v Amnesty International  (opinion here), the Hedges  case is doomed.  

More here and here.

A new book fills in some details on the domestic spying program, now easier thanks to theClapper case . 

*   *   *

THE Senate's recent report on the CIA's "Rendition, Detention and Interrogation" program is secret and may never see the light of day (more here and here).

The Open Society, however, has an RDI report you can read now.  

Thanks to its handling of Mamdouh Habib, Australia makes the list of 54 countries who collaborated with the RDI.  

*   *   *

VACANCIES on the US federal courts are now at a crisis level with some having continued for as long as nine years.  Details here. 

Mr Obama has renominated 33 judges blocked by Republicans in the last session of Congress.

Naturally, the National Rifle Association plans to lobby against nominees who believe in enforcing gun laws. 

*   *   *

US Supreme Court: on the agenda - foreign treaties, gene patents and voting rights

IN the courts, an all-Republican DC Circuit panel has predictably found that Mr Obama's recess appointments to the National Labor Relations Board were invalid, despite the Chief Justice having suggested the president could end a Republican obstruction of confirmations by just such appointments. 

There's a new 6th Circuit decision on the liability of rating agencies for their role in the financial meltdown, and it comes up opposite from the recent watershed Aussie case.

A case in the Supreme Court will consider foreign treaties giving the US power to legislate domestically, not unlike Australia's Franklin Dams case. 

Another Supreme Court case contrasts US and Australian judicial treatment of human gene patentability and involves the same corporation, Myriad Genetics.  

In Australia, Myriad succeeded in patenting a human gene and that issue will be before the US court shortly. 

One of the most important cases in the Supreme Court this term concerns the Voting Rights Act. More here. 

Things look grim for voters, but promising for Republican politicians.  UC-Irvine Law School Dean Erwin Chemerinsky has the legal background. 

On March 26-27, the Court will hear two "gay" cases, the overturned California constitutional amendment banning gay marriage and the restrictive federal Defence of Marriage Act.  

More here and here. 

Some late DOMA  briefs are here. 

The court has five options for dealing with the California case; the administration brief supports a limited right to gay marriage that could result in 17 states with gay marriage. 

In another case, the question of actual innocence as an exception to habeas limitations is before the court. 

There are also two cases of fatal missed deadlines. 

And finally, Justice Clarence Thomas has spoken at oral argument for the first time in seven years, but it was only an aside. 

*   *   *

THERE have been interesting new developments - some encouraging, some not - in the South.  

On the one hand, there was the unseemly haste with which the state of Georgia sought to execute two men before their meds - i.e. the state's batch of the scarce execution juice pentobarbital - reached the use-by date, March 1st.  

Georgia only succeeded in killing one of the men. 

And then there's Texas.

It's a state with a 55 percent majority-minority, yet - thanks to gerrymanders - it remains stuck in a white Tea-Party time-warp, part of the vice-like 18-year Republican grip on the state government.  

Even so, the state police force, the Department of Public Safety, has announced an important innovation: DPS helicopters will no longer be engaged in shooting at undocumented immigrants. 

They must have drones on the drawing-board.

From Roger Fitch and our Friends down under at Justinian

Perfidy in peacetime

ROGER FITCH ESQ • MONDAY, FEBRUARY 11, 2013

The United States doesn't require a war for there to be "war crimes ... Stopping the "water cure" from flowing into the trial process ... European Court of Human Rights upsets the CIA's apple cart ... Roger Fitch files from Washington 

Judge Pohl: obligingly kept torture evidence secretTHE news media have concentrated this month on the Guantánamo 9/11 trial, where, in a moment of high farce, the sound and pictures under the delayed-response security systemabruptly vanished despite no one claiming responsibility. 

As soon as a defence lawyer mentioned his motion to preserve CIA "black sites" (they are crime scenes, after all), someone pulled the plug, and it wasn't the judge or official court censor. 

Whodunnit? The judge didn't know, but the prosecution did.

Could it be their mates at the CIA?

Equally riveting theatre could be found in a concurrent Gitmo show trial, that of the Saudi Abd al-Rahim al-Nashiri, starring the same judge, Colonel James Pohl.

Nashiri is said to have organised a 2000 attack on the USS Cole in the harbour at Aden.

Yemen was a friendly country with no war and, even with one, the Cole would be a legitimate military target.

It's clearly a civilian offence: when Nashiri's fellow Guantanamero Ahmed Ghailani was accused of bombing US embassies in East Africa, he was tried in New York before a real court and sentenced to life in prison.

To counter the apparent invalidity of Nashiri's commission charges, the  specifications recite self-serving fictions, e.g. in the (only) count describing an actual war crime, "Using Treachery or Perfidy":

"NASHIRI ..., an alien unprivileged enemy belligerent subject to trial by military commission, did, in or around Aden, Yemen, on or about 12 October 2000, in the context of and associated with hostilities, invite the confidence and belief of one or more persons onboard USS COLE ... that two men dressed in civilian clothing, waving at the crewmembers onboard USS COLE ..., and operating a civilian boat, were entitled to protection under the law of war, and intending to betray that confidence and belief, did thereafter make use of that confidence and belief to detonate explosives hidden on said civilian boat alongside USS COLE ..., killing 17 Sailors of the United States Navy ..."

Sadly, without a war, Nashiri can't be a belligerent, or a person subject to trial by military commission by the law of war as required by the Military Commissions Act 2009.

There were no hostilities in Yemen in 2000. 

"Perfidy" is indeed a violation of the law of war, but requires more than waving at the enemy - an accepted ruse in war, unlike, say, waving a white flag.

USS Cole: should be civilian offencesNashiri wasn't originally portrayed as the Colebombing mastermind. When the other Coleaccused were indicted in New York in May 2003, Nashiri was merely an "unindicted co-conspirator".

Though already in US custody, Nashiri was not produced in New York.  Apparently, the CIA was too busy torturing him in Poland in the hopes of producing incriminating "evidence" for the Manhattan cases.

The CIA admits Nashiri was waterboarded while detained by the CIA in Thailand, Poland and Romania.

Some of his treatment - as verified by the CIA Inspector General - included acts that are themselves classic war crimes, e.g. pistols and electric drills held to the head, and the "water cure". 

His treatment also violates US law implementing the Convention against Torture. 

As part of a mental health evaluation, Judge Pohl has agreed to let a military medical panel examine Nashiri's CIA file, including the time of torture.

However, if Nashiri hopes disclosure of torture by the CIA will assist his defence, he need only refer to a ruling by Judge Pohl in the 9/11 proceedings, that torture evidence must be kept secret on "national security" grounds - e.g. the fact it would make the CIA, Thailand, Poland, Lithuania and Romania look bad, or worse, subject them to some civil or criminal punishment.

In the end, Judge Pohl had no difficulty finding jurisdiction in Nashiri's case, by accepting there was a war in Yemen in 2000:

"The political branches have made a determination that hostilities existed between al Qaeda and the United States prior to September 11, 2001 and on the dates of the alleged offenses, evidenced by the passage of the 2009 MCA, the referral of charges in this case, and the litigation of this case since arraignment ... The political branches' collective determination is entitled to judicial deference by this commission."

In other words, if the MCA claims it applies to offences occurring before September 11, 2001, and the government prosecutes Nashiri for something that happened in 2000, the "political branches" - Congress and the president - have decided there was in fact a war in 2000, and that "decision" deserves deference. 

As Kevin Jon Heller observed, "Judge Pohl's decision is one of the worst ever issued by a military-commission judge.  And that, my friends, is saying something".

*   *   *

MV Limburg: cutting edge kangarooIF perfidy in peacetime seems a stretch, consider one of the other "war" charges against Mr Nashiri, that of planning a 2002 suicide bombing in the Gulf of Aden that killed a Bulgarian on a Luxembourg-flagged French tanker, the MV Limburg. 

This is cutting-edge kangaroo: an act in international waters with no connection to the US or any war.

No problem. According to the Pentagon, the attack on the Limburg "could effect (sic) not only our own but potentially global economies. It was an oil tanker just outside the Straits of Hormuz".

Well, there you have it: it's clearly a war crime if oil is involved.

Still, why not use the 200-year old piracy laws just upheld by the Supreme Court? 

A nearly identical case is being treated as piracy.

*   *   *

THE decision by the European Court of Human Rights in El-Masri v Macedonia (see previous post) proves the danger of serving as proxy for the CIA, and must worry other European nations being sued in the ECHR. 

Mr Nashiri, for instance, has ECHR cases pending against both Poland and Romania.

The countries in strife are all former Communist regimes.

Two of them, Poland and Lithuania, started working with the CIA barely a decade after ridding themselves of the hated Russians and their KGB. 

One of the more ironic moments of the post-Communist era must be Donald Rumsfeld's solemn 2005 pilgrimage to the former KGB headquarters in Vilnius, Lithuania (now a memorial to victims of Russian oppression) while the CIA ran a similar torture dungeon just outside the city.  

Meanwhile, Polish newspapers are reporting the existence of a document signed by Poland's former prime minister concerning the secret CIA prison in that country and what to do "if a dead body of one of the persons held there should appear".

Gosh.

FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER AT JUSTINIAN

Obama's republic

Tuesday, December 4, 2012
Justinian in Cobell v Salazar, Donald Rumsfeld, Drones, Military detention, Roger Fitch Esq, US Presidential election

Shock: the rich prefer Obama ... Democrats outvoted Republicans, but state gerrymanders keep GOP in control of the House ... Recomposition of the ultra-orthodox DC Circuit ... Rumsfeld gets torture immunity ... Native American compensation claims settled after 16-year class action ... New policy for drone assassinations ... Roger Fitch reports from Washington 

The Presidential election wasn't even close

"The government consists of a gang of men exactly like you and me. They have, taking one with another, no special talent for the business of government; they have only a talent for getting and holding office. Their principal device to that end is to search out groups who pant and pine for something they can't get and to promise to give it to them. Nine times out of ten that promise is worth nothing. The tenth time is made good by looting A to satisfy B. In other words, government is a broker in pillage, and every election is sort of an advance auction sale of stolen goods."

H. L. Mencken (1880-1956)

THE precipitous decline of the American republic has been slowed - if not arrested - by the re-election of Mr Obama and the rejection of a Republican Senate.

The pillage du jour - in this case, the systematic looting of the nation's dwindling assets by Republicans and their rapacious corporate allies - has been momentarily interrupted. 

Still, Mr Obama and the Democrats are not entirely trustworthy (see below) as the US faces a so-called "fiscal cliff" in which unpleasant choices in spending cuts may be forced on a recalcitrant Congress. 

Now that it's all over, Obama has survived, perhaps through the intervention of Mother Nature in the form of the super-storm Sandy. 

The election result was a blow for Rupert Murdoch, who deployed over 30 of his people nationwide to campaign for Republicans.

Six billion dollars may have been spent in this year's election cycle - over $500 million of it by special interest groups in the last month.

As it turned out, the presidential election wasn't even close, historically speaking, but unpredictable things happened, considering the Republican candidate's wealth and religion.

The rich apparently preferred Obama, and a greater percentage of Mormons supported George Bush when he last ran than supported Romney this year.

With Democrat candidates for Congress receiving more votes than Republicans, you would think Obama would have a Democrat majority in the House - as he does in the Senate - but thanks to Republican state-based gerrymanders, the opposition kept control of the House while losing the popular vote. 

It's one of the few times in the last 100 years that the losing party in the House still got control of it. 

While  Republicans lost the popular vote, they have one of their biggest House majorities in 60 years. That won't be easy to change: only 74 of the 435 House districts remain marginal, or "competitive." 

The Republicans still have the edge in statehouses, where gerrymanders of federal constituencies are made. 

Come January the Republicans will have complete control of 27 states versus 19 for the Democrats. Only three states have split legislatures, and Nebraska is unicameral.      

Some say the Republicans have lost the culture war.

Perhaps, too, the claim that the US is a "Christian nation" can be laid to rest. 

The Republican "Southern Strategy" of targeting "White Anglos" is also breaking down.

With Texas now having a majority-minority population of 55 percent, the days of Republican-dominance in that state are numbered.

In Florida, another state becoming competitive for Democrats, there was a gratifying removal of the accused war criminal Allen West, a Republican, from his House seat. At the same time, the liberal Florida Democrat Alan Grayson, ousted in the Republican sweep of 2010, was returned to Congress. 

The conservative Washington Post doesn't like either of them.

There were other pleasing results such as the failure of big money to buy influence in state judicial elections.

*   *   *

ALTHOUGH federal judges are not elected, one bright spot in the election may turn out to be the future composition of the ultra-orthodox DC Circuit.

With Obama having won four more years, David Sentelle, the most partisan Republican on the DC Court (see my post here) has decided to take senior status. 

There are four vacancies to be filled in DC, a golden opportunity for Obama to reshape this "second-most important" federal court and break the ideological edge held by Republican operatives and "movement conservatives". 

With four years, the president hopes to do the same with the Supreme Court. And with good reason - a new study confirms what we always knew: conservative justices invalidate liberal laws, and vice-versa.     

*   *   *

PRESIDENT Obama is defending the seemingly unconstitutional provisions of the National Defence Appropriation Act that purport to allow indefinite extrajudicial (military) detention of US civilians in the US and abroad.

Sadly, he has the amicus support of Senate Republicans.  

Meanwhile, with the election safely out of the way, DoJ has signed a sweetheart settlement in the robo-signing mortgage scandal that makes recovery by civil plaintiffs more difficult.

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THE 7^th Circuit, sitting en banc, has overruled a unanimous three-judge appeals panel, and given former Secretary of Defence Donald Rumsfeld immunity for torture that he personally ordered.

Jonathan Hafetz, the Times and Kevin Gosztola comment on the case.

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THE Native American claims case Cobell finally ground to completion after 16 years when the DC Circuit signed-off on the settlement. 

The case has a long and sordid history, including the shock removal by the DC Circuit of the now Senior DC District Court judge, Royce Lamberth, who imprudently alluded to the racism of the Bureau of Indian Affairs and held two Secretaries of the Interior in contempt. 

The government never did account for the amount of Indian trust funds converted to other use over the last 135 years.

The $3.4 billion settlement, reached in 2010 but delayed until Congress appropriated the money, is paltry compared to the loss the Indians suffered.

*   *   *

THE Obama administration has produced a policy for drone assassinations at last: they were afraid to leave it to Mr Romney.

Criticism was swift. 

Disturbingly, the Times saw merit in institutionalising - bureaucratically - a practice long considered criminal by the US government itself.

It's too late, of course, for Anwar al-Awlaki, the American who was assassinated by CIA drone in Yemen in 2011. 

But, the US is now claiming he was no longer a citizen anyway when they killed him, and they had been thinking about charging him with something. 

Meanwhile, though drone due process is still in abeyance for citizens as well as foreigners, the Pentagon has decreed that in future, humans must decide before a drone kills someone. 

Now that's comforting.