Saturday, May 14, 2016

From Roger Fitch and our Friends Down Under at Justinian

"If voting changed anything, they would make it illegal"

Fourteen years after filing a habeas petition, Guantánamo prisoner is released ... US claims right to indefinite detention , at will ... When did the US war with al-Qaeda commence? ... Kansas Republicans want to impeach the state's judges, for disobedience ... Voter suppression ... Republican convention and "open carry" ... Roger Fitch, Our Man in Washington 
Ah, the law's delay.
The Libyan Salem Gherebi, one of the first Guantánamo prisoners to file a habeas petition in the United States, has been freed and sent to Senegal.  
Gherebi's case had its roots in the "West Coast" habeasfiled in January 2002 (reported here), and in December 2003, he became the first Guantanamero to triumph in a US appeals court.  
In June 2004, in Rasul v Bush (David Hicks' case)the supreme court confirmed the right of Guantánamo prisoners to habeas hearings, with venue in DC.
The 9th circuit's decision was vacated, and Gherebi'shabeas was transferred to Washington, where it languished.
Fitch earlier noted the reaction of the 9th circuit court that heard Mr Gherebi's case: 
"Under the government's theory, it is free to imprison Gherebi indefinitely along with hundreds of other citizens of foreign countries, friendly nations among them, and to do with Gherebi and those detainees as it will, when it pleases, without any compliance with any rule of law of any kind, without permitting him to consult counsel, and without acknowledging any judicial forum in which its actions may be challenged.
Indeed, at oral argument, the government advised us that its position would be the same even if the claims were that it was engaging in acts of torture and that it was summarily executing the detainees (emphasis added).
To our knowledge, prior to the current detention of prisoners at Guantanamo, the US government has never asserted such a ... startling proposition ... a position so extreme that it raises the gravest concerns under both American and international law." 
The Justice Department's astonishing arguments, made in 2003 as David Hicks lay bailed up in Guantánamo, went entirely unnoticed by John Howard's lawyers, and the man directing DoJ's case, Robert McCallum, later became US ambassador to Australia. Such is irony.  
Apples McCallum (centre): advocate of indefinite detention without acknowledgement of the rule of law
In due course, torture and summary executions were fully implemented. Drone assassinations continue, and Trump-torture remains on the table.
The US continues to release other internees, including the long-suffering hunger-strikerTariq Ba Odah, whose habeas claims met ruthless government opposition as recently as last year. 
Guantánamo prisoners not previously "cleared" must satisfy Periodic Review Boards. Some media mischievously call these parole boards, though there's no previously-imposed sentence.  
Unconscionably delayed, PRBs at one point found 83 percent of those reviewed eligible for release. 
Which internees get knocked back? Pakistani businessman Saifullah Paracha's release was rejected for  such offences as "refusal to distinguish between legitimate and nefarious business contacts", whereas the Yemeni Suhayl al-Sharabi lost out through a classic Catch-22 - refusing to confess - plus his "defiant behaviour" and diabolically, his "lack of a credible plan for the future".
Some could still be tried by commissions, with essential functions outsourced - perhapsunlawfully
*   *   *
No US war underway on the morning prior to 9/11 attacks
One of the most fantastic legal fictions (see Fitch) of the Bush-Obama era is the retrospective claim that the US has been in a legally-cognisable armed conflict with al-Qaeda since Bill Clinton's days.  
An important article by two U Michigan law profs examines this Pentagon conceit and concludes no war existed before the October 2011 attacks by the US on Afghanistan.  
That finding would dispose of al-Nashiri, the military commission appeal awaiting a DC Circuit decision. It would also nullify the 9/11 commission - the case the Obama administration has cast as the one trial, if any, able to vindicate the reckless military commission experiment.
The 9/11 attacks that killed over 3,000 non-combatant civilians would certainly qualify as war crimes - if there had been a subsisting armed conflict to which the Geneva Conventions applied. But there wasn't any war underway on the morning of September 11, 2001.  
*   *   *
Governor Brownback: wanted to impeach Kansas' state judiciary
Texas is no longer the craziest Tea-Party state. It's further north, in Kansas, where Republican governor Sam Brownback, heedless of Marbury v Madison, obtained legislation to defund the entire state judiciary should the state's courts find unconstitutional a new state law intruding into the courts' powers.  
The district court predictably ruled against the state, so the state attorney general tried to prevent the state's supreme court hearing the appeal. The court duly accepted the case, and ruled against the legislation. 
In its next salvo, Kansas introduced legislation enabling the impeachment for usurpation of the state's supreme court justices, although it would be easier to pack the court - the Arizonaand Georgia solution.
In the end the state reluctantly took the legislative action the supreme court mandated, but the beat-up should help Tea-Partiers rally the rabble to defeat supreme court justices up for re-election this year.  
Kansas also excels in vote suppression, and Republican Kris Kobach, the Secretary of State and elections supervisor, has succeeded in shoehorning his own Kansan candidate into the Obama administration's bureaucracy as the head of the misnamed Election Assistance Commission.
The EAC is far from being a non-partisan body like the Australian Electoral Commission. According to the Times, Republicans have hijacked the agency, and the new EAC is accused of actually suppressing votes. 
Kobach's man at the EAC, Brian Newby, obligingly allowed restrictive voting requirementsin Kansas (contra a 10th circuit ruling against the state), without public consultation or FEC commission approval.
In his latest "blunder" the devious Kobach issued flagrantly-mistranslated Spanish voter guides that could "accidentally" disqualify Democrat-inclined Hispanic voters.      
Systematic vote-suppression began in Florida with the 2000 presidential election and reached its zenith in North Carolina this April with a Bush appointee's judicial blessing. That ruling could well be overturned by the 4th circuit – but perhaps not in time for this year's election. 
Goldman: 18 states of the union confirm her view about voter suppression
More here and here on the 17 (soon to be 18) states whose new laws confirm the bon mot of American radical Emma Goldman: "If voting changed anything, they would make it illegal." 
new book looks at the Republicans' disingenuous quest for the fraud of voters. It's nearly nil, but lack of a factual basis never deters the party faithful.
Meanwhile, it's delegate votes that count at the parties' national conventions, and the Republicans will be gathering in Ohio, a state where delegate-buying is a felony. Even so, Australia's ABC found a senior Republican official who promised "cash on the table" if there's a contested Cleveland convention.  
Adding to the Republicans' excitement, the oxymoronic group Americans for Responsible Open Carry want to bring their weapons to the convention. What could possibly go wrong? Plenty, if Cleveland's precautions are any indication. 

Sunday, January 24, 2016

From Roger Fitch and our Friends Down Under at Justinian

Changing the rules

Citizens United has transformed the landscape of campaign finance in the USA ... How the US trashed its prisoner-of-war obligations and clung onto Guantanamo Bay ... Rupturing the Geneva Conventions ... Impunity for the Pentagon under loose standards ... Roger Fitch files from Washington 
AS the 2016 election approaches, there's a certain asymmetric inconsistency in the political game.
On the one hand, there's bipartisan vote buying; on the other, nation-wide vote-blocking, by a party determined to hang on to power in the face of changing demographics that now make it a minority. 
The constituencies for vote-buying and vote-blocking are obviously different. Votes of political representatives at every level of government are beingbought, and they in turn are blocking votes of citizens, most recently in Wisconsin and Kansas.  
In 2016, for the first time in a presidential election year, purchased politicians can forestall unreliable voting by suspect citizens. There's no need to buy anyone's ballot, if you can choose which party faithful gets to vote.  
This retrograde development in representative democracy was made possible by the calamitous and partisan decisions of the supreme court in Citizens United v FEC (2010), opening the gates to unlimited corporate election spending, and Shelby County v Holder (2013), gutting theVoting Rights Acta law protecting the right to vote that was re-enacted by Congress with near-unanimity in 2006. 
To make matters worse, just before Christmas break, Congress doctored the Appropriations Act 2016 to entrench the political spoils of Citizens United.   
Buried within the Act are clauses that (1) make it illegal to regulate Citizens United money, so rendering impossible "dark money" reporting by federal regulatory bodies such as the IRS and the SEC; and (2) prevent the president from using disclosure requirements for enforcing federal procurement law, thus overriding Obama's power, recently used, to require federal contractors to reveal their, er, monetary contributions to those giving them contracts.  
An outraged Counterpunch writer lays out - in highly-coloured prose - more chapter and verse.  
The Washington Post has more.  
The progressive Brennan Centre for Justice at NYU Law School has a new report on the six 5-4 decisions of the Roberts Court that have "transformed the landscape of campaign finance in America, largely for the worse."  Citizens United was the most appalling of the lot.
Conversely, the neoliberal University of Chicago sees good in it: in a new study (abstracthere) in UC's Journal of Law and Economics, the authors looked for "the impact of corporate political activity on the stock prices of those firms that are most likely to utilizenew opportunities for political engagement", as the corporate investment in politicians - licensed by Citizens United - was politely described.  
The authors found that indeed, "corporate political activity enhances shareholder wealth, particularly in firms that are small to medium sized, firms that spend relatively less on lobbying, and firms operating in more heavily regulated industries." 
Well, quelle surprise. Money talks.
*   *   *
Columbus arrives in Puerto Grande
There's a harbour in southeast Cuba so capacious that when Christopher Columbus anchored his fleet there in 1494, he named it Puerto Grande.  
When British admiral Edward Vernon visited in 1741 during the War of Jenkins' Ear, he renamed it Cumberland Harbour. Accompanying Vernon was a naval surgeon, Tobias Smollett, who afterwards wrote up his travels in The Adventures of Roderick Random. 
The bay was a haven for pirates, long before the buccaneers Bush - père and fils - started stuffing it with prisoners and hostages: Haitian asylum seekers; men from real or rhetorical wars; even actual pirates, e.g. Abd al-Rahim al-Nashiri and Ahmed al-Darbi, both now facing military courts for acts of violence on the high seas (usually defined as piracy) having nothing to do with war, and in one crime alleged, nothing to do with the country holding and charging them. 
Guantánamo Bay now hosts an extrajudicial internment camp entering its 15th year. In notoriety, it outstrips Devil's Island, and it has held hundreds of Dreyfuses. SinceBoumediene (2008), not one of their cases - civil or military - has gone to the supreme court, regardless of merit or the injustice presented. 
Many have reflected on the sordid history of this unnecessary military blunder, e.g. the Al Jazeera journalist Sami al Hajj, held at Gitmo for six years, apparently to intimidate his employer and pry into its affairs. 
Al Jazeera  has not been silenced, and as the Pentagon in January expatriated ten Guantanameros in one go, AJ published a "where are they now" story on past, botched repatriations and reckless refoulements.  
Only the Canadian Omar Khadr seems to be receiving the rehabilitation so many deserve after their ordeal.  
Rolling Stone had a story, "America's shame", and the Miami Herald reported on the six remaining internees (now reduced to five) from the original 20 of January 11, 2002, that included David Hicks.
Almost on cue, the Pentagon released Fayiz al-Kandari, the last of the petitioners from the supreme court's landmark 2004 decision, Rasul-Al Odah, a joint appeal by two British men, joined by the Australians Hicks and Habib, and twelve Kuwaitis. 
US Navy at Guantanamo Bay
That's a long time for a supreme court case to play out, but al-Kandari was clearly a man the Pentagon wanted to keep, despite the Kuwaiti government having sought his release for years. Indeed, the military seems to have vindictively prolonged the detention of certain inmates, while frustrating the closing of the prison itself through dilatory manoeuvres.  
The Pentagon's blanket denial of prison-of-war status meanwhile continues. It began with George Bush's initial suspension of the Third Geneva Convention, but as this column has frequently noted, only Congress can derogate from a ratified treaty.
Bush's extralegal rupture of GIII was swiftly followed by his pre-emptive declaration that all Taliban soldiers detained in Afghanistan were unentitled to prisoner of war status, a nonsense Barack Obama has left undisturbed. 
One wonders why Mr Obama has spent seven years digging George Bush's Gitmo hole ever deeper.  
It would have been easy for the new president to announce, on taking office, that there would be Article Five hearings (see most recent previous post) for all prisoners then held at Gitmo. That would have allowed the US to accord GIII prisoner-of-war status to those who were entitled to it; repatriate or expatriate those wrongly held; and continue to hold - until the end of hostilities - those rightly detained.  
Those exonerated could be more easily returned, and reintegrated into society. 
The Pentagon, however, has never admitted the innocence of any prisoner released, let alone helped or compensated him. Diabolically, each is merely "no longer an enemy combatant", who's found to be "no longer a threat".  
Such a policy change of restoring the pre-Bush rule of law, of course, would have involved admitting the previous government had made mistakes - indeed, had committed grave violations of the Geneva Conventions. 
It would also have meant conceding the war in Afghanistan was an International Armed Conflict, where GIII applied throughout. That's something the Pentagon could never allow, for the military is now inured to the impunity they receive under the looser Common Article Three standards for treatment of prisoners in a Non-International Armed Conflict.  
It's worth remembering that according to studies, only five percent of prisoners sent to Guantanamo were captured by Americans on a battlefield. The rest were either unvetted Northern Alliance prisoners; men abducted elsewhere (as far away as Bosnia, Thailand and the Gambia); or all too often, men bought with $5000 bounties paid to needy Afghans and venal Pakistanis.

Thursday, December 24, 2015

From our Friends Down Under at Justinian.....

US rewrites the Geneva Conventions

US Supreme Court's dreadful legacy ... Fifteenth anniversary of Bush v Gore - the decision that "changed everything" ... The environmental hazards of international "trade" agreements ... Guantánamo prisoner held for 13 years in a case of mistaken identity ... Roger Fitch, Our Man in Washington 
ON December 12, law-abiding people sadly reflected on the fifteenth anniversary of Bush v Gore, one of the most infamous decisions in US supreme court history. 
Forget 9/11. It was 12/12/00 that "changed everything": in the aftermath there would be ubiquitous, never-ending wars; at home the US would be left with a terror-hysteric republic and a corporate-aligned high court that threatens the integrity of elections and the continued vitality of the Democrat Party.  
While Bush v Gore may have been an unconstitutional coup d'etat, it left intact other aspects of the first republic's constitution, e.g. a Bill of Rights, albeit one receiving new glosses favoured by the court's triumphant partisan majority.  
Among these innovations were the personal human rights granted to soulless corporations, e.g. unlimited "money speech" in elections and an astonishing corporatefreedom of religion.
Ironically, the private company whose freedom of religion was recognised in Burwell v Hobby Lobby Stores (2014) now stands accused of trading in stolen antiquities for its Museum of the Bible. 
Perhaps they aren't such good Christians after all.
Meanwhile, the results of the supreme court's lamentable corporate money-speech decision,Citizens United (2010), are already becoming apparent in state judicial elections.
Here's David Cole's review of a new book on these First Amendment developments, and aNew Republic report on the corporate takeover of the court underlying them. 
The Second Amendment right to bear arms - another provision of the Bill of Rights under Republican redesign, continues to fester, in the aftermath of the court's ill-consideredHeller decision.
However, a seventh circuit appeal that threatened to exponentially extend Heller fizzledwhen the court denied certiorari
Clarence Thomas seemed upset that a citizen's God-given right to assault weapons might be regulated.  
More here on the judicial knockback of America's most noxious radical insurgency, the National Rifle Association.
There's still plenty of gun mischief in the provinces.
While the second amendment has expanded beyond all constitutional logic, the fourth amendment - freedom from warrantless searches and seizures - is sinking like a stone, particularly when courts confront alleged terrorists, or the FBI is involved. 
*   *   *
The climate conference in Paris has been gazumped by the Trade Pacific Partnership and other trade deals
There has been much mutual congratulation on the outcome of the Climate Change Conference in Paris, but only silence on the three international "trade" agreements now under consideration and their likely effect on environmental initiatives such as phasing out fossil fuels and introducing new energy technologies.  
Each of these agreements attempts to marginalise and exclude national and local legislation and regulation deemed inimical to the profit expectations of multinational corporations and contains the extrajudicial Investor State Dispute Settlement device for enforcing, inter alia, environmental poison pills.
The recently agreed Trans-Pacific Partnership clearly curtails the ability of governments to respond to climate change, while creating its own trade barriers
According to the Sierra Club, the TPP's Environment Chapter actually rolls backcommitments in the free trade agreements the US has already entered.
The other two international compacts for mutual-assured corporate plunder still under negotiation - TTIP and TISA - are quietly advancing, under a cover of secrecy and the guidance of unelected, corporate-friendly officials in the colluding countries.  
TTIP (Transatlantic Trade and Investment Partnership) has a secret protocol that foreshadows the prevention of meaningful regulation of the environment, more here
TISA (Trade in International Services Agreement), which includes Australia, has a draft "Annex on Environmental Services" described by Friends of the Earth as "an environmental hazard".
*   *   *
Gen. Tommy Franks, prevented by the Pentagon from implementing Article 5 Geneva Convention hearings for POWs
The Pentagon has admitted wrongly holding a Guantánamo prisoner for 13 years in a case of mistaken identity. 
It seems Mustafa al-Shamiri was not "al-Qaida" after all. Even so, he was deemed one of those hapless "low-level fighters" or "foot soldiers", as the Pentagon and its faithful media stenographers categorise men who, in previous wars, were classified as combatants entitled to consideration as prisoners of war.
No journalists ever ask why men are being "cleared" for release who were never properly classified for detention in the first place, i.e. at the time of their apprehension, by following the requirements of the Third Geneva Convention and the US Uniform Code of Military Justice.
After the adoption of the Geneva Conventions in 1949, and until the war in Afghanistan, the US never failed to extend prisoner of war status hearings to opposing soldiers, even the Viet Cong.  
Before Afghanistan, the US never claimed that a country it was fighting had no government; indeed, in the years before 9/11, Taliban officials were welcomed and entertained in George Bush's home state, discussing pipelines and oil wells.
When the war broke out in Afghanistan, commanding General Tommy Franks began preparations for the treatment of prisoners of war and the conduct of the independent "Article 5" hearings required under GCIII and the UCMJ.  He was stopped by the Bush Pentagon.
The first Guantánamo commandant, Brig. Gen. Rick Baccus, had signs put-up around the camp explaining the prisoners' rights under the Geneva Conventions and was planning for the provision of the amenities allowed to prisoners of war by GCIII. He was summarily replaced by a commander who accorded no Geneva Conventions rights - not even the basic rights of Common Article Three. 
Still, no media proprietors inquired - in 2002 or afterwards - why prisoners from the Afghanistan war were different, why they were never recognised as soldiers of Afghanistan, why they were denied en masse their Article 5 hearings without which they were presumedto be prisoners of war.
In fact, the trial judge in the Hamidullin case (see previous post) did ruminate on the matter before deciding he could try the Taliban soldier Irek Hamidullin for opposing US soldiers in Afghanistan.  
Hamidullin has now been sentenced to life in prison plus 30 years for essentially nothing. No Americans were harmed.
According to one news report, the judge found Hamidullin "wasn't a lawful combatant because the Taliban and its affiliated groups lack a clearly defined command structure and don't adhere to the laws and customs of war".   
There is no such requirement, however, for government forces. Article 4 of GIII states: 
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
More here on a man who was held in irregular detention in Afghanistan for five years before being brought to the US for prosecution for the "crime" of opposing US invading forces.

Saturday, October 24, 2015

From Roger Fitch and our friends down under at Justinian...

The Roberts court and other mishaps

Ten turbulent years of the Roberts court ... Gitmo travesties ... Failure of "black site" victims to get remedies ... Stealing votes ... Roger Fitch, Our Man in Washington, reports 
THE supreme court is back in town, withtrouble on its mind
frightening agenda awaits action by the Republican-activist majority.  
First, the court has to decide which 75 cases to hear, whittling the 8,000 petitions with its dreaded "long conference" and relists.
Politically-charged cases will be eagerly taken on by the most political supreme court ever.  
In one of its first decisions, the court gave Wall Street a free pass on insider trading.
An entire issue of the Nation sadly marks 10 years of the Roberts Court - more here.
In one of its first cases, the corporate-friendly 5-4 majority on the supreme court reviewed the resistance in California to forced arbitration in consumer litigation.  
The Federal Arbitration Act dates from 1925, but it wasn't until Southland Corp v Keatingin 1984 that a new Republican majority discovered that the FAA applied to states, their consumers and contracts.  
More here on the court's relentless extension of arbitration to employment contracts and class actions.  
In another case, the same majority will be deeply sympathetic to corporate class action defendants who have found a clever way to pick off plaintiffs one-by-one.
The court will also consider whether its 2012 decision striking down mandatory life imprisonment without parole for underage defendants should apply retrospectively to a further 2,100 prisoners. A heartless decision is a distinct possibility.
The Republicans on the court have already done plenty for the party, including its attacks on voting rights, but there are three big cases this term that could allow them to do even more to aid the states' determined suppression (read on) of potential Democrat votes.
*   *   *
Dostoyevsky: dumped in Kazakhstan, like others since
While talk has turned to closing Guantánamo, what has happened to internees who managed to get out, some through forced repatriation to strange countries?  
VICE News has an article on two Tunisians who were dumped last year in Kazakhstan, where the Czars used to send troublemakers like Dostoyevsky. The experience of the exiles has not been a happy one; unlike Fyodor, they don't speak Russian.  
There can be worse language problems. Newsweek has a story on a recently-released Gitmo prisoner who spent 13 years in wrongful US custody after a mistake in translation.
Al Jazeera meanwhile has a where-is-he-now video on another Gitmo travesty of justice, the internment of Asadallah Raman, a 10-year-old Afghan boy held for a year at Guantánamo with two other children. His plight was first reported in 2004 in the San Francisco Chronicle.
*   *   *
Rumsfeld: hanging out with Lithuanians
In other unfinished war-on-terror business, two men formerly imprisoned by the CIA, and the personal representative of a third that the CIA tortured to death, are suing the psychologists James Mitchell and Bruce Jessen in federal court in Washington State.  
The ACLU has a backgrounder.   
The two psychologists, whose company was paid $81 million for "services" before the CIA cancelled their contract, are also being sued for human experimentation. 
The claim - worth reading - was filed under the Alien Tort Statute. More here and here
The NYT wonders why the government can't allow victims a judicial remedy after years of shamefully blocking every claim.  
Blame lies with the supreme court for denying certiorari in case after case of prisoner torture and abuse; the appeal of Al Laithi v Rumsfeld (see previous post) should give the court another chance to redeem itself.     
Fortuitously, the Bureau of Investigative Reporting has a new study of the "black sites", torture dungeons set up by the CIA in Poland, Lithuania, Romania, Thailand, Afghanistan and Guantánamo. 
The report confirms that the CIA's Lithuanian torture facility near Vilnius was in use when - without irony - DefSec Donald Rumsfeld visited that city’s KGB museum, a former torture facility, in October 2005.
The 14 "high value detainees" ultimately sent to Guantánamo in 2006 were the remnants of a Gulag that contained at least 119, according to the Senate's Feinstein "Torture Report". Forty-two of these are now known to have been released, 30 are still in US custody, seven have died, and the fate of the others is unsettled.  None have received any compensation, apology or explanation.
Finally, in a perfectly legal (see August post) - albeit expensive and embarrassing - case of victor overkill, the mighty US made an example of a lowly Taliban combatant who had the temerity to attack American soldiers in Afghanistan, during a war.  
The result was the defendant's conviction of terrorism and attempted murder in a Virginia federal court.
More here on the symbolic show trial of Irek Hamidullin, who failed to harm anyone, and was the lone survivor among 30 Taliban. 
*   *   *
Voting Rights protest outside the Supreme Court in Washington DC
In 2013, the supreme court's five-man Republican majority judicially repealed  - in Shelby County v Holder - the provisions of the Voting Rights Act that required Justice Department supervision of states with shocking records of race-based vote suppression (see most recent Fitch).  
Since then it's been open slather for racist gerrymanders and vote suppression throughout the old Confederacy - and beyond.
The US elections don't begin until 2016, but for Republicans, it's never too early to steal votes.  
Now's the time to further entrench vote suppression, and there's been nothing quite like it since the end of Reconstruction (1877) and the withdrawal of federal troops from the South. 
Fitch previously reported the Republican trick of closing voter registration offices and places where one acquires the ever-more-complicated identification to vote. 
Alabama, which requires a photo driver's licence for voting, has simply closed the driver’s licence offices in most black-majority counties. More here
The Washington Post reveals another ruse for deflating Democrat votes - moving popular polling places to remote, less accessible locations. 
In North Carolina, black voters - 22 percent of the population - are likely to vote Democrat, but even those with transport will find themselves driving, on average, three times as far to vote as white voters.
In Kansas, the state's tea party politicos are attempting to require proof of citizenship, at odds with federal requirements. 
Texas has taken voter suppression to the next level - citizenship prevention - by stopping nationality-proving birth certificates from being issued to suspect newborns who might grow up Democrats. More here. A federal court declined to stay the policy pendente lite.
The only good news for Democrats - and democracy - has come from California, a solidly Democrat state: it now has a new law providing automatic voter rego.  
Henceforth potential voters will have to opt out rather than jump through hoops to opt in.  
Sounds almost Australian.

Friday, September 11, 2015

From Roger Fitch and our friends down under at Justinian....

American after-glow

Connecticut's Supreme Court kills the death penalty ... Locating the new Guantánamo ... Extrajudicial abduction ... Psychologists withdraw from the chamber of horrors ... John Robert CJ's abiding fear of the right to vote ... Roger Fitch, Our Man in Washington 
THE supreme court is quiet for the summer, as Justice Anthony Kennedy basks in the glow of his opinion recognising same-sex marriage. 
Kennedy's eloquence in Obergefell v Hodgeshas struck a chord with those considering marriage and it seems both gay and straight couples are already using his words for their nuptials.
A notorious decision of the DC Circuit meanwhile is being appealed to the supreme court.  
Allaithi v Rumsfeld held that tortured and abused Guantánamo prisoners have no cause of action for civil damages against former DefSec Rumsfeld because Rummy's mistreatment of them was within the scope of his employment. The case has been going on since 2006.
In Manhattan, the government lost its effort to suppress the "targeted killing" records of the three Americans vaporised by CIA drones. There's a timely article here on the life and death of one of them, Anwar Awlaki, "the first American to be hunted and killed by his own government since the Civil War".  
In an important state case, Connecticut's supreme court became the first to judicially abolish capital punishment.  
The decision concerned prisoners on death row and followed a prospective legislative repeal, but it's based on a finding the death penalty is "cruel and unusual punishment" under Connecticut's constitution.
The 9th circuit is currently hearing an appeal from a California federal court decision thatstruck down that state's death penalty on different "cruel and unusual" grounds.
*   *   *
Obama: playing for the other side
President Obama seems to spend a lot of time playing for the other team and, when he departs office, his feeble advocacy of Democrat party policy will leave troubling figures in party statistics.
The Washington Post reports that under Obama, 85 of 98 partisan state legislative bodies have become more Republican. 
Some believe Mr Obama has seriously damaged the party brand with Bush-like proposals such as the administrative detention of "terrorist" prisoners in a stateside military jail.
The president is looking for US locations for extrajudicial indefinite detention when Guantánamo closes, and he's considering a US Navy brig near Charleston, SC, an army prison in Kansas, or even a new internment camp
Any US prison would establish an alarming precedent for future domestic military detention of men regarded as civilian terrorists, caught in spent wars or having only tenuous connections to combat.  
The South Carolina option doesn't sit well with South Carolina's Tea Party Republican governor Nikki Haley, and Charleston residents have reservations about the relocation to their city of the allegedly dangerous men. 
Haley (right): not sitting well
Charlestonians were strangely silent when the same navy brig was used to house and abuse three civilian "war-on-terror" prisoners, two of them US citizens, during the Bush years: Yaser HamdiJosé Padilla and Ali Saleh al-Marri.
The Guardian reports that only three of 116 remaining Gitmo internees were actually captured by US forces, including a Pakistani businessman seized in Thailand by the CIA.  
As it happens, there's a new book on the US forces usually responsible for such extrajudicial abductions, Joint Special Operations Command.  
One foreign citizen "rendered to justice" by Americans is contesting his manner of apprehension, but under settled US law, his chances don’t look good
For other, unapproved, kidnappings, there's a new Envoy for Hostage Affairs.  It's another ambiguously-titled State Department initiative, like War Crimes Rewards
*   *   *
The American Psychological Association has decided to do the right thing and stop assisting US government interrogations, following a damning independent investigation. TheGuardian and Just Security have more.  
Only one person voted against the change - Larry James, a former member of the Behavioural Science Consultation Team (BSCT), military psychologists who collaborated in the brutal interrogation of helpless prisoners at Abu Ghraib and Guantánamo. 
James: wants to keep psychologists on the interrogation teams
Many "Biscuits" have had ethics charges brought against them, and one of them took themilitary Fifth Amendment.  
Following cancellation of the CIA's contract with the firm of torture-architect psychologists James Mitchell and Bruce Jessen, West Coast civil rights figure Stephen Yagman has filed suit under the False Claims Act for recovery of the $81 million Mitchell-Jessen were paid for their (dirty) work.  
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The Pentagon swiftly investigates claims of carcinogenic work conditions of Guantánamo personnel, especially lawyers, but it stonewalls urgent medical assistance for internees, e.g. the British resident Shaker Aamer and Yemeni, Tariq Ba Odah.
Ba Odah has been on hunger strike for more than eight years, weighs 34 kgs and is near death. 
In its response to Ba Odah's motion, the Department of Justice argued that releasing him would only encourage les autres, who might also undertake starving to death, just to get out of jail.  
As Marty Lederman notes, the government recognised but ignored the Geneva Conventions requirement that sick and dying prisoners be repatriated. 
According to a Times report, the State Department opposed the government stance.  
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As US legislators scramble for cash for the 2016 Congressional cycle, 141 retired members of Congress are holding $46 million in excess cash from their last election. 
That's chickenfeed. The 2016 election cycle could cost as much as $10 billion, and thanks toCitizens United, 67 donors are dominating elections for the governance of 320 million people.  
The Washington Post is shocked. More here
By one recent count, there were 17 Republicans running for president, including one under indictment.  
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Roberts CJ: not keen on voting rights for minorities
The conservative Fifth Circuit has ruled that the Republican-engineered voter photo-ID in Texas is a violation of the Voting Rights Act, and Texas is seeking en banc review
The circuit accepted that the voting restrictions were discriminatory, but overturned the lower court's findings of a discriminatory purpose, remanding for a fresh determination of legislative purpose, but leaving in force a stay of the lower court's injunction. 
Without injunctive relief, some 600,000 Texans will be prevented from voting in next year's elections, just as they were in last year's. 
The controversial Texas AG is setting up a supreme court appeal, giving Republican activists on that court another shot at killing the Voting Rights Act.
The Act is currently celebrating its 50th anniversary, despite CJ Roberts' near-successful efforts to kill it in Shelby County v Holder, the astonishing 2013 decision in which the court's Republican majority struck down - as based on stale facts - an essential part of theVRA that had been overwhelmingly readopted in 2006 by a unanimous Senate and all but 33 members of the House.
A new biography of the Chief Justice tracks his decades-long antipathy to the VRA.
Alleged violations of the surviving portions of the Act face multiple court challenges, especially in Texas and North Carolina, as Republican-controlled states continue to place diabolical obstacles in the path of disadvantaged poor and minorities who vote Democrat, e.g. Alabama requires a driver's licence to vote, but budget cuts would close all but four of the state's 49 driver's licence offices. 
Redistricting offers further opportunities to disenfranchise, and a constitutional right to vote, presently missing, may be required to stop cascading, mainly Republican, vote-suppression.