Friday, September 16, 2016

From Roger Fitch and Our Friends Down Under

TPP heads towards the ditch

Voting in Republican states is a daunting ordeal ... Staff-to-prisoner ratio at Guantánamo stands at 33:1 ... Finding new jurisdiction for a war crime ... The TPP - a charter allowing badly behaved US companies to behave badly in other countries ... Star Chambers staffed by corporate lawyers ... Roger Fitch rails against "free trade" initiatives 
Scalia: disparu
THE salutary departure of Antonin Scalia from the supreme court has resulted in a victory for North Carolinians planning to vote this year, with a tied court declining to lift the 4thcircuit stay of NC's restrictive voting laws, more here.
Even so, both North Carolina and Texas (more mischief here) are cheating wherever possible.
The unlawful proof-of-citizenship requirement granted to Kansas, Alabama and Georgia by the partisan, Kansan CEO of the Election Assistance Commission, has been blocked by the DC circuit, although such devious practices as purging voter rolls continue to make voting in Republican states a daunting ordeal.
In these and other matters, Obama's progressive circuit court appointees are making a big difference (see chart), and it's hoped that a more liberal supreme court will follow when a (Democrat) justice replaces the disparu Scalia.
*   *   *
Cellular world at Guantánamo (photo Matt Sprake)
As Mr Obama continues his (feeble) efforts to close Guantánamo, the military jail for proxy prisoners taken - or purchased - in the "war on terror", the New Yorker has reviewed the earlier use of America's Devil's Island by Bush Snr and Bill Clinton. 
Many of those presently detained are symbolic hostages in a rhetorical war, held by mistake or in violation of the laws of war; indeed, many Pentagon "profiles" presented to Periodic Review Boards artlessly admit these "law of war" prisoners have no connection to 9/11 or the Afghan war that ostensibly authorises their confinement. Not one of them has been provided appropriate Geneva Convention rights.
Only five percent of the Guantanameros were actually captured by Americans on a battlefield, a fact that goes unremarked by the media, as well as politicians who read the Pentagon's "transparency reports."  
The 779 men and boys have been gradually released - some through death - and after the latest mass  expatriation, the count stands at 61, leaving a staff-to-prisoner ratio of 33-1 and an annual per capita cost of $6 million
With the initial PRB hearings now complete, Marty Lederman has a report on all the prisoners not subject to military commissions; the Intercept has more.  
*   *   *
Pacific Rim trade countries
The Trans Pacific Partnership, an American "free trade" initiative, covers 12 Pacific Rim countries. Australia is eager to join, despite its existing bad bargain under the Australia United States Free Trade Agreement, made worse by the TPP. Briefly described, it's a corporate charter allowing badly-behaved companies from one country (e.g. the US) to behave badly in other countries, unhindered by disagreeable laws, regulations or judicial oversight. 
After putting whole fields of sovereign authority out of the reach of national and local governments, the TPP effectively closes a country's own courts and institutes its very own one-way court system, the reviled Investor State Dispute Settlement, a system of compulsory arbitrations available only to foreign corporations.  
These corporate lawyer-staffed star chambers have no regard to precedent and allow no appeals, and were consistently rejected in Australia until the return of a Coalition government in 2013. 
Besides removing uncongenial governmental regulation (environmental, health, safety, labour), an obvious aim of the TPP and its sister "trade agreements" (see below) is to crack open new markets to foreign plunder and force privatisation of essential activities and government functions such as health care, water, electricity, emergency services and public enterprises. A "ratchet" clause would ensure that nothing, once privatised, could be reacquired by the public.
The treaties aim to give foreign corporations a role or veto in, inter alia, land use (e.g. mining and agriculture), health care and education, while preventing the introduction of laws and regulations in respect of e.g. natural resources or climate change (more here) that multinationals claim might affect speculative (and indefinite) future profits.  
The TPP offers little benefit to the American economy, and according to the World Bankand Australia's Productivity Commission, it's a dismal deal for Australia. 
Happily, the TPP may be doomed in this Congress by the Republican majority leader's decision to not bring it to a vote and the defection of the House leadership of both parties, and it's not looking too good for the colluding "partners", because, as Rabble notes
"... six of the 12 countries will need to have ratified and together those countries must comprise 85 per cent of the total GDP of the 12 original nations that signed the treaty. The US and Japan alone account for nearly 80 per cent of the total GDP of signatories." 
Stories are meanwhile emerging of some of the horrifying consequences of ISDS arbitrations.  BuzzFeed has long reads hereherehere, and here on abuses where sovereign states get shaken down by foreign corporations, often over control of essential resources. 
ISDS courts and prospective causes are already being gamed by those who snap up the right corporations.   
There's more here on predatory subsidiaries of big international banks like Deutsche Bank, being set up to exploit ISDS litigation.
Another corporate sweetheart deal being hawked by Mr Obama, the Transatlantic Trade and Investment Partnership, is now in trouble, with the French and Germans backing off, and the British out.  
Even if the TTIP falls apart, there's worse ahead for Europe: CETA, the Comprehensive Economic and Trade Agreement, a toxic agreement with Canada that promotes many of the TTIP corporate hustles.
The third multilateral treaty in this transnational trifecta, the Trade in Services Agreement,remains on track, with Australia already capitulating to key US demands (see Fitch of June 2015), but now, there's hope all three agreements will meet the same fate as the ill-starred Multilateral Agreement on Investment that collapsed in 1998 (see Fitch of March 2016). 
*   *   *
Hole in the Cole: backdating the state of war
Readers of this column may recall the baffling military commission charge against Abd al-Rahim al-Nashiri for a 2002 bombing in international waters of a French-flagged Malaysian-chartered tanker that killed a Bulgarian crewman, an occurrence with no connection whatever to the US or any war.   
The charge was afterwards dismissed when the military judge asked the prosecution to produce some predicate evidence of the bombing and the government declined. Instead, the chief prosecutor took an interlocutory appeal to the Court of Military Commissions Review and, in July, the Pentagon's drumhead court predictably overturned the ruling
Nashiri appealed another of the charges, for the bombing of the USS Cole, noting that the US was not at war with any relevant party or state when, in 2000, the Cole was sunk in Aden harbour by al Qaeda followers.  
In a party-line 2-1 decision in August, the DC circuit upheld the charge, deferring to a different judge's ruling that the USS Cole bombing was war-related, more here.   
The backdated state of war provides the necessary jurisdiction for a "war crime" prosecution, more here, but unless there's "perfidy", it's no offence to attack an enemy ship.  The case continues
Stay tuned.   

Monday, July 25, 2016

From Roger Fitch and Our Friends Down Under at Justinian

Rolling out the big guns

University professors fight Texas gun laws in court ... The importance of this election to SCOTUS ... Remembering Zbigniew Brzezinski's advice for the US to act "unpredictably and in anger" ... The Republican FBI chief's Trumping of Hillary Clinton ... From Roger Fitch - Our Man in Washington
"A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"
2
nd amendment to the US constitution (1791).
"No kind of travesty, however subtle or ingenious, could so misconstrue this provision of the constitution of the United States, as to make it cover and protect that pernicious vice, from which so many murders, assassinations, and deadly assaults have sprung, and which it was doubtless the intention of the legislature to punish and prohibit… We confess it appears to us little short of ridiculous, that any one should claim the right to carry upon his person any of the mischievous devices inhibited by the statute, into a peaceable public assembly, as, for instance into a church, a lecture room, a ball room, or any other place where ladies and gentlemen are congregated together."
English v State, 1871 Texas Supreme Court decision upholding a law against carrying deadly weapons
One hundred-and-forty-five years years after English v State, Texans endure a despotic government of Republican zealots, an alien occupation that has lasted longer than the Civil War and a Reconstruction that was carried out by quite different Republican radicals.  
Texas is now a Tea-Party state, where demented NRA-funded legislators deal with epidemic gun violence by pouring ever more oil on the fire.  
The recent shooting of 12 policemen in Dallas, for example, was facilitated by the widespread possession of firearms in Texas, including privately-owned assault weapons, and resulted in the DPD's dubious but "unique use" of military equipment: the bomb robot
The nature of state legislation following mass shootings "depends on the dominant political party and ideology of the state," and in responding to campus shootings, Texas, instead of prohibiting guns, enacted laws compelling state universities to allow concealed weapons, even in classrooms, despite opposition by administrators, students and professors alike.
In a sickening coincidence, the Texas law will take effect on August 1, the 50th anniversary of the day Charles Whitman shot 14 people dead from the tower of the University of Texas in Austin, the start of the modern phenomenon of mass shootings.  
The university's politically-appointed regents duly forced through rules allowing concealed handguns in classrooms, though not on the tower observation deck.
Three UT professors are fighting this in court, and among their arguments is the novel claim that, after Heller, a "well-regulated militia" should include a well-regulated private use – wholly absent in Texas.
The state will be represented by the lead defendant, the state's attorney general Ken Paxton, currently facing state and federal charges for securities fraud.
*   *   *
Mohamedou Slahi: Guantanamo Diaries were a best seller
As the Guantánamo prison approaches its 16th year, there's renewed media interest in miscarriages of justice, and individual Dreyfuses held at America's Devil's Island.  
The Boston Review has an article on the long-suffering Mohammedou Slahi, author of a bestselling Gitmo narrative, and Politico has a piece on the CIA-tortured Abu Zubaydah, a man who's been waiting seven years for his habeas hearing. Pleadings recently unsealed in the DC habeas include Zubaydah's own accounts of his torture.  
CIA torture has been further illuminated by the disclosure of shocking advice by the agency's nameless medical staff, here and here, and the release of the agency's chilling "applied research" contracts with the "enhanced interrogation" psychologists James Mitchell and Bruce Jessen.
It's damning evidence against health professionals who would fit neatly in a Nuremberg dock - alongside the Bush Gang's torture lawyers.
The Pentagon's drumhead Court of Military Commission Review has allowed the Limberg MV charges against Abd al-Rahim al-Nashiri to go forward in Nashiri's military commission trial. The offence, which resulted in the death of a Bulgarian crewman on a Malaysian-chartered, French-flagged tanker in international waters, had no connection with any war, or indeed, with the United States.
Abu Zubaydah and al-Nashiri meanwhile have cases pending in the European Court of Human Rights against Lithuania and Romania for hosting their CIA torture camps, morehere
*   *   *
James Comey: Obama's Republican at the FBI, still messing with the Clintons
In a few months, Barack Obama, that careful steward of the (pecuniary) interests of the American governing class, will be leaving office. Will he be replaced by the consummateconman, bankrupt businessman and real estate developer, Donald Trump? Or will it be the veteran insider, Hillary Clinton, accompanied, for better or worse, by her husband?
For his part, Mr Trump has already displayed apparent signs of mental instability byintemperate attacks on the ethnicity of the federal judge hearing the Trump University case; these spectacularly backfired, with the court unsealing files Trump's lawyers had wanted sealed.
The judge later resealed the files, but the damage had been done, with the release of Trump's predatory university "playbook" for hooking suckers.    
The importance of the election to the supreme court's future cannot be overstated, withmajor cases for next term already scheduled. Trump's list of favourites for court appointment includes a fair sprinkling of odious appellate court judges, but doesn't include his elder sister, 3rd circuit judge Maryanne Trump Barry - she's not conservative enough.
It obviously doesn't include feisty judges like Justice Ruth Bader Ginsburg, currently in strife for indicating a preference for life in New Zealand should Trump become president.
Meanwhile, a clue to the incoherent foreign policy rants of Trump may be found in a newly-declassified memorandum to Jimmy Carter by his national security adviser, ZbigniewBrzezinski.  
Readers may recall it was Brzezinski who in 1979 had the bright idea of arming Afghan jihadists and encouraging them to attack the lawful Afghan government, in order to induce a Soviet invasion.
Zbig gave Jimmy the following advice: 
"... an impression has developed that the Administration (and you personally) operates very cerebrally, quite unemotionally ... however, occasionally emotion and even a touch of irrationality can be an asset. Those who wish to take advantage of us ought to fear that, at some point, we might act unpredictably, in anger, and decisively. If they do not feel this way, they will calculate that simply pressing, probing, or delaying will serve their ends ..."
Strangely, the choice between Trump and Clinton could lie in the hands of a dedicated Republican, unwisely appointed to high office by Obama.  
Even though FBI director James Comey decided that his agency would not recommend criminal charges against Hillary Clinton for misuse of private email servers while Secretary of State, the way in which he announced it has been condemned as unethical and a violation of the DoJ's prosecution manual. More here.
John Dean comments on Hillary's continuing problems, casting Comey - heavily involved in the Whitewater beat-up against the Clintons 20 years ago - as Inspector Javert. 

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".
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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.
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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.