Monday, June 22, 2015

FROM ROGER FITCH AND JUSTINIAN

The high price of free trade

Busy season for the US Supremes ... Huge trade agreements a boon for corporates but unhappy consequences for the democratic process ... Australian proposals for the trade in professional services ... Rarely used federal death penalty for Boston bomber ... UN's guidelines on habeas corpus ... Ukrainian jobs for US residents ... Our Man in Washington 
MAJOR supreme court cases will be decided this month, including Obergefell, the marriage equality case.
In King v Burwell, millions of Americans could lose their health insurance tax credits through a legislative drafting oversight in the Affordable Care Act. The case gives the court's conservative Republicans another shot at displacing "Obamacare".  
There's also a civil rights case pending where CJ John Roberts could set back antidiscrimination law if he chooses. 
In the next term, there's an opportunity for the Roberts Court to gut voting rights for Democrat-voting minorities in Texas, more here.
A decision requiring state senate districts to be structured differently to lower houses could help Republicans crack open one of the most intractably-Democrat states, California. 
Some enlightened decisions continue to emerge from the court, and the latest concerns aFacebook posting -scienter is still required in prosecutions for threats. Scotusblog has the story.
*   *   *
Freedom Act replaces the NSA's bulk data collection
Congress has now passed the absurdly-named USA FREEDOM (Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring) Act to ban the NSA's bulk metadata collection in future.  
A leading litigant responds here, and Georgetown Law prof David Cole comments here.
Meanwhile, it cost corporations less than $18,000 per Senator to secure the passage of a"fast track" Bill, giving President Obama the power to negotiate, without Congressional input, the Trans-Pacific Partnership agreement. With 435 members, the House will cost more.
The TPP would remove "trade barriers", which might include environmental, labour, health, safety and other regulatory nuisances that inconvenience transnational corporations and inhibit their profits.
There's also a Transatlantic Trade and Investment Partnership under negotiation, with similar corporate "trade" proposals. 
A UN body is worried about the impact of such "free trade" and investment agreements on human rights (more here). 
The TPP will allow trans-national corporations to redefine sovereignty
Economist and Nobel laureate Joseph Stieglitz is alarmed by the social consequences of letting transnational corporations decide the laws that regulate them, bypassing national democratic processes.
WikiLeaks released documents from a third set of negotiations, the highly-secret Trade in Services Agreement, which has Australia as a co-conspirator, sorry, partner.  
The TPP, TTIP and TISA form a globalisation trifecta, a corporate Trojan horse for deregulation and the reciprocal plundering of countries signing-up. Many provisions begin with "A Party [State] may not …" and are designed to take legislation off the table in signatory countries; worse, transgressions are litigated in special arbitration courts - staffed by corporate lawyers - from which there is no appeal.  
States have no corresponding right of redress, and there is no recourse to their courts.
Forbes was disturbed by provisions regulating the internet, found in the Annex on Electronic Commerce
TISA also has an Annex on Professional Services covering lawyers, accountants, engineers, architects, vets and  "private education services".
Aussie lawyers may be interested in these provisions: 
4. Local presence [Australian government proposal]
(a) No Party may require a service supplier of any other Party to establish or maintain a representative office or any form of commercial presence, or to be resident in its territory as a condition for the professional services. 
- - -
5. Foreign Capital Limitations [US proposal]
No Party may, with respect to entities supplying professional services through a commercial presence limit the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.
There's also this Australian proposal:
10. Lawyers Fly-in, Fly-out (a) Where commitments are undertaken for the supply of legal services … for foreign law, a Party shall allow entry and temporary stay on a fly-in, fly-out basis without requiring the service supplier to establish or maintain a representative office or any form of commercial presence, or to be resident or domiciled in its territory, or to gain admission or otherwise qualify as a local practitioner, or to register in the Party ... 
More on TISA here and here.
*   *   *
Federal death sentence for the Boston bomber - rarely used
The US has performed badly again in the UN's annual review of its human rights record, more here.
Al Jazeera has more.
The US imposition of the death penalty has been highlighted by the conviction of the "Boston bomber", who received the federal death sentence in Massachusetts, a state strongly opposed to the penalty, and one where it has not been imposed since 1947.  
The federal death penalty has been imposed just three times in 30 years, and there is some talk that capital punishment could finally be abolished in the US.
The UN has also issued its guidelines on habeas corpus, just in time for the 800thanniversary of Magna Carta.
It's a timely issue in the US, where the habeas action of Abu Zubaydah, the CIA's first (post-9/11) torture victim, has seen an extraordinary delay of nearly seven years in DC district court. 
*   *   *
Years after his plea bargain (Fitch of October 2012), and following 13 years of gratuitous torment by successive American and Canadian governments, Omar Khadr has finally been bailed by an Alberta court, pending his appeal of fake war crime convictions at the Pentagon's dodgy Court of Military Commission Review.  
More here and here
Khadr's chances look good, as the DC Circuit has just issued its long-awaited decision in Al Bahlulstriking down "conspiracy" and other US-invented "war crimes" as offences triable by military commission. Steve Vladeck comments.  
*   *   *
Government declassifications have led to more damaging revelations by Gitmo internees of their abuse, e.g. that of Majid Khan, the "High Value Detainee" presently awaiting a military commission sentence pursuant to a plea deal, and Shaker Aamer, the last British resident still held
Marty Lederman explains the significance of ending the gag orders against Gitmo internees talking about their mistreatment, now that the US Senate's Feinstein Report on the same torture has been released. 
*   *   *
In the same week that the author of Boumediene, retired justice John Paul Stevens, called for reparations to some Guantanameros, the City of Chicago set-up a fund to pay the victims of past torture by the Chicago police.
US cities and towns pay out millions in civil damages and settlements every year for police negligence and misconduct, but Chicago's program will be the first systematic fund.   
*   *   *
Saakashvili: new job running Odessa
The New York lawyer and sometime Georgian president, Mikheil Saakashvili, has lounged around Brooklyn in recent years, looking for meaning in his life.  
Now, he's finally found a job: Ukraine's ruling oligarch has made him Odessa's regional governor.  
As one headline read, "Neocon Fugitive Given Ukrainian Province". 
Like Ukraine's new Finance Minister, American ex-State Department functionary Natalie Jaresko, Saakashvili has taken out citizenship.
Ukrainian law requires that dual nationals renounce their other citizenship within two years, but by then the US-EU looting of Ukraine should be pretty well complete.

Saturday, May 2, 2015

From Roger Fitch and our Friends Down Under at Justinian

Being droned to death

Show us the kill-list criteria ... New US attorney general needs to fix the FBI ... $4 million investment in judicial election paid off handsomely for litigant ... CIA whistleblower convicted ... Carrying a concealed gun is a "lifestyle" ... Fitch fails to snag a seat at crowded US Supremes same sex marriage hearing 
"It turns out I'm pretty good at killing people."– Barack Obama, in a light-hearted aside
NY Times headline, "First Evidence of a Blunder in Drone Strike", is old news.
The announcement was unsurprising, as thePentagon admits it doesn't always know who it's killing. 
More here.  
President Obama's death-by-drone policy continues to attract critics, e.g. Germans unhappy to hear it's coordinated through Ramstein AFB, one of many American enclaves still embedded in Germany 70 years after the war ended. 
Drone assassinations can still be averted by capture, as a lucky Texan discovered.  
Muhanad al Farekh was fortunate to be kidnapped in Pakistan and (irregularly) extradited to the US - he's been nominated for drone-death since 2013.
 More here and here
Meanwhile, there's a new ACLU lawsuit seeking "kill-list" criteria.
*   *   *
Three Blackwater mercenaries involved in an unprovoked 2007 massacre in Baghdad's Nisour Square have each been given 30-year manslaughter sentences in the US; the man who started it all got life in prison for murder.
The NY Times has more on the sentencing of the unrepentant men plus a back-story about the Bush Justice Department's prior efforts to botch the case against employees of a generous Republican contributor.  
Fitch previously detailed the State Department's suspicious 2007 intervention (Oct. 10, 2007). 
*   *   *
US attorney general Loretta Lynch: needs to fix FBI's forensic hair analysis
There's a new US attorney general, Loretta Lynch, and one of the first things she will need to address is the poor performance of her department's investigatory arm, the FBI.
A new report finds that the FBI's forensic hair analysis was "flawed" in hundreds of cases before 2000, some involving death penalties subsequently carried out.  
Thousands of state cases also used the discredited FBI pseudo-science.
In one case, a single hair sent an innocent man to jail for 30 years; in another, a man spent 28 years in jail when a dog hair was identified as his
*   *   *
In US states – where 100 million cases are filed each year compared to 400,000 in federal courts – elected judges are increasingly for sale, according to a new study in Mother Jones.  
In one case, a mere $4 million investment in the election of a successful Illinois Supreme Court candidate led to a gratifying reversal of a $1.19 billion judgment against State Farm Insurance, and in Texas and Alabama, Republicans have apparently succeeded in bulk purchases of the supreme courts. 
*   *   *
Craig Murray, former British ambassador to Uzbekistan: CIA prisoner drop off
Poland, like Macedonia, has had to pay for CIA crimes in Europe.  
After a judgment against it in the European Court of Human Rights, Poland has now done the right thing and asked the US not to execute men at Gitmo who were tortured in Poland, e.g. Abd al-Rahim al-Nashiri.  
Now the question is being asked, did the CIA drop off some of its ex-Poland prisoners in Uzbekistan for a coup de graceCraig Murray thinks it's possible, and he was the British ambassador there. 
Lithuania, also under pressure from the ECHR, is reopening its investigation of CIA torture in that country.
*   *   *
At last, an ex-official of the CIA - a director, no less - has been convicted of a crime in a US court.
In a departure from the plea bargain of retired four-star General David Petraeus, the judge imposed two years' probation and the maximum fine of $100,000 - still less than Petraeus's usual speaking fee.
The misdemeanour sentence for unauthorised possession of classified information – given to Petraeus's mistress - is light compared to that of whistleblowers, and reveals a deepdouble-standard in Justice Department prosecutions.  
Jeffrey Sterling, a black CIA officer, is facing prison after a recent conviction on nine felony counts involving the alleged (and only circumstantially proved) leaking of secrets to NY Times' James Risen, considerably less "espionage" then the acts alleged against Petraeus.
Jeffrey Stirling, CIA lawyer: guilty of leaking
Sterling has now asked that his sentence be set aside, claiming DoJ considered race and rank in its disparate handling of the two cases.
Secrecy News has more and the NYT comments here
*   *   *
For those considering a visit to the US, be warned: there are states where it's legal to carry a concealed weapon without any permit whatever. The latest victims of NRA insanity live in Kansas.
As one Republican state politician explained, "Carrying a gun is a lifestyle ... government should trust its citizens". And anyway, "Kansans already have two documents granting them the right to concealed carry: the Constitution of the United States and the Kansas Constitution ... That should be all they need." At least he didn't mention the bible.
Of course, guns or not, this may not be a good time to visit the US. The Transport Safety Administration has a new guide for spotting arriving tourists suitable for no-fly lists.
According to the Intercept, it includes telltale signs of terrorist proclivities such as yawning - not unusual after a 15 hour flight from Sydney - and other giveaways such as complaints about screening; throat-clearing; staring; "improper" attire; "excessive" grooming; whistling; and that old favourite from Shakespeare, rubbing and wringing hands.
*   *   *
US Supremes: cogitating on marriage equality
The history of gay marriage in the US is not yet complete: so far, 37 states, the District of Columbia, Guam, Puerto Rico and 22 Indian Nations have accepted it, while the Navaho are still resisting.
On April 28, in what could be the most important civil rights case in a generation, the Supreme Court heard the argument in Obergefell v Hodgesa case that will finally settle the issue of same-sex marriage laws throughout the US.   
The party briefs are here and about 150 amicus briefs (a record) are listed here.
There's a handy guide here.
Fitch failed to snag a courtroom seat, but here's a program for those who did.
Initial reports of the oral argument suggest it won't be plain sailing for the plaintiffs. 
Harvard law prof Michael Klarman has written a fascinating two-part history of the US marriage equality movement thus far, here and here, and shows why the court's decision, to be announced in late June, should be a foregone conclusion, given the change in public attitudes.
In 1996, 25 percent of Americans supported marriage equality, and now polls find that 63 percent favour it.
If only Americans could change their views on, say, the wisdom of arming everyone; the utility of foreign wars; or the efficacy of the death penalty; as quickly as they altered their attitude towards same-sex relationships.  

Thursday, March 26, 2015

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

Out and proud


Four marriage equality cases go to the US Supremes ... Is there a constitutional right to gerrymander? ... Secretive lawyer society behind moves to bring downAffordable Care Act ... Shock finding - lawyers more liberal than most, but judges are more conservative ... Republican senators' undiplomatic activities ... Roger Fitch files from Washington 
Senator Tom Cotton: taking on Iran
Forty-seven Republican senators have sent Iran a brazen letter attacking Mr Obama's foreign policy powers, essentially promising that a future Republican government will break any agreement the Democrat president makes to forestall the development of nuclear weapons in Iran.
The undiplomatic note penned by Arkansas's notorious new senator, Tom Cotton is bad law and seems to violate the Logan Act'sprohibition of private correspondence with foreign governments.
Republicans have form when it comes to sedition. In 1968, they warned South Vietnam away from Lyndon Johnson's Paris peace talks, causing their collapse. In 1980, they persuaded the Iranians to hold on to the American hostages till Ronald Reagan had been elected, promising a better deal.  
But those plots were secret. With a Tea-Party Congress, it's another matter: they're out and proud.  
The Republican revolutionaries will likely go unpunished, as no one has been prosecuted under the Logan Act since it was passed in 1799.
Senator Cotton was recently promoted from his House seat with the help of nearly a million dollars from the "Emergency Committee on Israel", so his motives are open to question. 
Indeed, the real scandal lies in the fact that 47 of 100 senators are prepared to pursue the foreign policy goals of a foreign nation - in this case, Israel - as against their own government.
It's a policy that included the unilateral invitation to Benjamin Netanyahu to address Congress. The Israeli PM predictably used that platform to make partisan attacks on Iran and Obama, and generate video footage for his then ongoing political campaign.   
For more on the Republicans' incessant attacks on international law - eg, binding treaties and executive agreements between countries - there's a timely new book by LieberCode'sJens David Ohlin. 
*   *   *
Venezuela: posing a threat to the United States
President Obama's reconciliation with Cuba may have upset hardline Republicans - including two Cuban-American senators - but the bipartisan policy of beating-up independent-minded Latin American nations is still flourishing.
Just this month, Mr Obama warned the senate of a "national emergency" in which Venezuela posed "an extraordinary threat to the national security and foreign policy of the United States".
This declaration of an existential threat to the American republic was designed to trigger more pointless sanctions, and rightly drew ridicule from Al JazeeraEmptywheel's Marcy Wheeler and the NY Times.
Venezuela has reason to be wary: a representative of the misleadingly-named National Endowment for Democracy is reportedly travelling incognita in the country to meet - secretly - opposition leaders.   
*   *   *
Scalia and Thomas: travelling together
In April, the Supreme Court will consider four "marriage equality" cases from the 6thCircuit, the only circuit to rule against same-sex marriages. Meanwhile, the court continues to allow these marriages to go ahead in the circuits that have ruled them legal.
Alabama was briefly the 37th state to have gay marriage, but now there's a stand-off between the federal and state courts, reminiscent of the civil rights litigation in the 1960s. 
Clarence Thomas - joined by Nino Scalia - filed a bitter dissent in Strange v Alabama, accusing the court of "indecorous" and "cavalier" rulings.
In the midst of a busy schedule, the court still found time to knock back another Gitmo civil action, that of Abdul Al-Janko, a prisoner (now released) who experienced one of the more outrageous miscarriages of justice in the sordid history of Guantánamo Bay. 
There remain many more important cases before the Supreme Court in March, one of which involves independent commissions for determining electoral boundaries.
Australians accept an independent Electoral Commission as a sensible idea for removing politics from elections, but they're under attack in the US.
Arizona State Legislature v. Arizona Independent Redistricting Commission, currently before the court, considers whether a state legislature has a constitutional right to gerrymander, unhindered by citizen-approved independent bodies. 
The court seemed sceptical of independent boards at oral argument, and with swing-justice Anthony Kennedy showing a poor grasp of US history, it seems possible the legislature will win
*   *   *
Federalist Society behind moves to bring down Obama's Affordable Care Act
A new Harvard study has found that US lawyers are generally more liberal than the average citizen, while judges are more conservative. 
Why are judges conservative? Maybe it's because more federal judges have been appointed by Republican presidents, especially during the 12-year Reagan-Bush Reich.
In the early eighties, things were more balanced, so the Republican Party set out to rectify the problem through the creation of its rightwing legal front, the Federalist Society
Today that organisation is within striking distance of bringing down the Affordable Care ActObama's health insurance scheme.
More here on King v Burwell, where there's danger in the wind as the ideological majority gets another crack at thwarting Obama's health care reforms. 
*   *   *
At Guantánamo, the government has once again shown it can't be trusted to play nice at the innately unfair military commissions and the Convening Authority has resigned under pressure after adverse court rulings. 
Defence lawyers have already had to contend with FBI listening devices planted in smoke detectors of client interview rooms; government interference with and attempted co-optionof a defence team member; and even real-time censoring of court proceedings by unidentified spooks. 
Now, an interpreter offered to the counsel for the "9/11" accused has been recognised by the defendants as an alumnus of the CIA team at their torture black site.  
Confronted by the judge, the Pentagon readily admitted the interpreter was a CIA asset, but wouldn't say where. The case is proceeding without him.
There was some good news. The Kafkaesque gag order, which had prevented the defendants and their counsel from even talking about their black site and other torture by the CIA, has been partially lifted.  
One of the first prisoners to benefit will be the 9/11 defendant Mustafa Hawsawi, now free to discuss being - uh - sodomised by the CIA (see December post). 
Marty Lederman is optimistic things are improving. More here
*   *   *
US Virgin Islands: the new Guantánamo
As is well known, Cuba would like the US to leave Guantánamo - it's no longer being used as a coaling station.The governor of a US territory sees an opportunity, and wants to locate America's next Devil's Island in the lovely Virgin Islands. 
Fitch can hear it now - "Fermez St Croix!"  

Thursday, February 26, 2015

From Roger Fitch...At Justinian

Hicks: the questions that should have been asked

The Guantánamo torture diaries that have rocked the best-seller lists ... The Howard government's manifold blunders in the Hicks' case ... Imperial demands ... The United States' exceptional interpretations of the law of war ... Our Man in Washington, Roger Fitch, reports 
There's a new SecDef at the Pentagon, although at the moment, Secretary of War seems more apt.  
One of the things that "Ash" Carter may have to confront is a fresh examination of Pentagon treatment of "war of terror" detainees.  
It's the same issue just addressed in the Senate's CIA report.
The Feinstein Report concerned the CIA's RID (Rendition, Interrogation and Detention)  program, particularly its use of EIT (Enhanced Interrogation Techniques) acknowledged now to be torture, or at least CID (Cruel, Inhuman or Degrading), under the Torture Convention.    
While there have been no legal consequences yet, the CIA's systematic mistreatment of its prisoners has been exposed. Will the Department of Defence be next? 
The source of the Pentagon's possible anxiety is a Guantánamo "torture diary" published by Mohammad Ould Slahi. 
It's remarkable that the document saw the light of day: Slahi is still at Gitmo, and the diaryunderwent Pentagon censorship.
There have been many prison narratives by ex-Guantanameros, released to an indifferent public and media; Slahi's memoir, however, has been a publishing sensation, quickly hitting the NY Times bestseller list.
By a timely coincidence, the author's actual torturer is known and has been profiled in aGuardian report.
It's the same case where the assigned Pentagon lawyer, Stuart Couch, refused to prosecute for "war crimes" charges because the accused had been tortured.
The principal players in this torture drama are now known, and their roles confirmed.  
The cast includes, in addition to Slahi and Couch, the Justice Department lawyer John Yoo, who "authorised" the torture; former SecDef Donald Rumsfeld, who specifically approved Slahi's torture program; Geoffrey Miller, the Fifth-Amendment-taking prison commandant who facilitated the use of an experienced torturer, the Chicago cop Richard Zuley; and Zuley himself.  
Zuley: an early snap from his days in the Chicago police force
Others have come forward, yet nothing has happened. There has been no prosecution of anyone and no remedy for Slahi other than the dosh he may raise for his family through publishing his story.
*   *   *
Another, ex-Gitmo, inmate – already the subject of three published books, including his own - has seen his "material support for terrorism" conviction thrown out by the Pentagon's rubberstamp Court of Military Commission Review.
Despite the fact that David Hicks appealed 15 months ago, most of the pleadings were conveniently unavailable at the website of the Pentagon's drumhead CMCR and were posted instead by Hicks' US lawyers, the Centre for Constitutional Rights. 
Once Hicks' innocence was conceded in a brief by General Mark Martins, the Chief Prosecutor at Guantánamo, the CMCR got the hint, and ruled in favour of the defendant.
Martins: prosecutor conceded Hicks was innocent
Regrettably, the Australian government still refuses to accept Hicks' innocence, despite overwhelming legal precedent and advice, the experience of other countries and years to reflect upon its own behaviour.
No lessons have been learnt, and today's government continues to look at the man, instead of the human and legal rights implicated in the Hicks affair. 
The biggest questions about the Howard government's blunders and crimes against Hicks are unasked.
For starters, why did the Australian government of the day refuse to provide effective consular assistance to one of its citizens, when it does no less for drug smugglers, murderers and rapists in trouble overseas?  
Why did Australia accept, without question, US assurances that Hicks was guilty, and not mistreated?
Can it ever be lawful for another country to seize an Australian citizen, question him on its ship on the high seas and then intern him in a prison camp, without any Article 5 hearing on prisoner of war status as required by the Geneva Conventions (and in Hicks' case, the US Uniform Code of Military Justice)?
Does the US president have the authority to unilaterally suspend the Geneva Conventions (or any other treaty)? Or flout parallel UCMJ provisions that track Geneva, word-for-word?  
After the initial decision in Hicks' favour in DC district court, how could the Howard Government take the side of the US government on subsequent appeals? Why weren't briefs filed on Hicks' behalf in Rasul - his own case that he ultimately won?  
Why wouldn't any government want to support its citizen's right to habeas corpus in a foreign court?
As for the military trials, is it possible that the Howard Government never took advice as to the legality of the prosecution of Hicks under either presidential or statutory military commissions? 
Did George Bush have power to create a system of military commissions outside the UCMJ? When the Supreme Court, in Hamdan, ruled he did not, finding instead that the Bush commissions violated both US law and Geneva Conventions, why didn't the Australian government demand Hicks' repatriation?
Incredibly, the government then supported and encouraged Hicks' re-prosecution under the new Military Commissions Act, an Act which also purported (unsuccessfully) to denyhabeas, and contained the novel Material Support for Terrorism, a "war crime" any first year law student could have assessed invalid.  
Aside from Hicks' own suffering, the worst thing about the Howard government's hostile mishandling of the affair was the terrible precedent it set, not least a presumption of guilt in "terror" cases and a reflexive deferral to the imperial demands of the US. 
Hostile mishandling
Will Australians in future be able to count on their government's support when they are in trouble, or will the government of the day pick winners or losers on political factors such as irrelevant US relations? 
In Hicks' case, the Australian government knowingly supported a farcical trial, with procedural defects that violated  international agreements as well as the norms of Australian and American law, a trial condemned by legal associations and top silks throughout Australia.
The UK withdrew its citizens and residents - all but one - early on, before any trials; Australia could have done the same.
Even so, the UK government paid settlements to the affected men of a reputed £l million each, even including the one man still in stir.
So, yes, it does seem David Hicks may be entitled to compensation, whatever his character, if only to vindicate the rights of the rest of us. 
*   *   *
There is one country whose behaviour has been more outrageous than Australia's.
Canada's much-abused Omar Khadr will likely be the next person whose MST conviction is overturned by the CMCR.  
As for Khadr's "murder" conviction, the Canadian government remains the only country in the world known to support the baffling US notion that there's a distinction in combatants, and an unprivileged combatant has no rights under the laws of war.
Accordingly, such a war combatant who kills a US soldier, even by lawful means, somehow commits murder.  
This is nonsense. Such a combatant may be "unprivileged" under domestic laws - ie, subject to prosecution under the laws of the battlefield country - but his lawful combat is not a warcrime.    
Ironically, evidence in Khadr's case revealed the US had an unprivileged combatant (a CIA agent) in the firefight with Khadr, and one may be certain that if their man had killed Khadr, the US would not allow that act to be classified a war crime.  
One wonders whether the Howard Government would have acquiesced in this truly crazy interpretation of the laws of war.
What if David Hicks had injured or killed an American soldier, using - as Khadr was alleged to have done - lawful means?  
One trembles at the answer.

Sunday, January 25, 2015

Sorry-- the photos that went with this article are temporarily unavailable while I figure things out.....


Be afraid. Be very afraid. Those same men and women who locked up my clients at Guantanamo for ten years without charge or trial are at it again….and this time they have their sights on me and you. I guess it is an appropriate way for Mr. Obama and “our” Congress to celebrate the ten year "anniversary" of the opening of Guantanamo- by codifying indefinite detention and opening it up for U.S. citizens too. So take a look at this law (you might not want to read the whole 900+ pages-you can read a summary of the low lights here) that Obama signed on New Year’s Eve-while you were out partying -and think about what it must be like to be locked up indefinitely without charge or trial. I should mention that Obama (who told us he was a Constitutional Law scholar) promised that he would never use this law to lock up a U.S. citizen…if this makes you feel more comfortable I will just remind you that Obama has broken just about every promise he made in his campaign to get elected “(“I promise to restore our system of justice” “I promise to close Guantanamo” “I promise to fight for the middle class”)  ”I promise” …we read his lips and we heard his words, and even if he were to change course and keep this one promise, the law now on the books under Obama's signature will be waiting for future use by President Newt or President Mitt or President Sarah.
So what exactly does indefinite detention look like? Let me describe it from the perspective of my two clients and the years they have spent at Guantanamo... by the way, one of whom is still held there and remain…indefinitely, without charge. Why? In his case, because he was in the same guesthouse in Pakistan where a man was arrested that our Government thought was a “bad guy.” Not only is there not a shred of evidence that my client was involved in any terrorist activity or illegal activities but the government now even acknowledges that the person they thought was a “bad guy” is not quite what they thought he was either. It matters not; the indefinite detention continues... indefinitely.
On January 11, 2002 when the boys and men first began arriving at Guantanamo, no preparations had been made in advance for where they would stay….so they stayed in these cages.
The men were at one with the elements. When it rained, they were rained upon. When the winds blew, they shivered and when the hot Cuban sun beat down- it beat down on them without compunction. Lest you think the ivy shown in the picture provided some privacy and protection from the weather let me remind you that this is a recent photo. No ivy was allowed back when these cages were being used, because the men were not allowed any privacy-they were watched at all times, forced to relieve themselves in buckets and only leaving the cages for interrogations.  This went on for months, until permanent facilities were built.
Fortunately or unfortunately, the powers that be will likely be better prepared for you and I. They have now had ten years to prepare and test the conditions. From these cages the men (and boys) were eventually moved into something resembling a prison from the 1950’s. Although there were windows, there was no air circulation and of course there was no air conditioning. Cells lined two walls facing each other and the soldiers paced down the center.  Unlike the prisons in the U.S., these men and boys were not allowed to know anything that was going on in the outside world. They were not allowed newspapers or to watch television. As an attorney I was forbidden to mention any world news to my clients unless it was directly related to their personal situation or legal case. Their only visitors were their attorneys and legal translators-once that was allowed (and it was only allowed after the United States Supreme Court upheld a legal right to challenge detentions and a right to counsel) and, of course, their jailers and their interrogators. Once a week someone would walk through the prison with a cart of books and the boys and men were allowed one book per week. Most of the books in the cart were in English although few of the men read or spoke English. The same books were offered week after week, month after month, year after year. There was no recreation time to speak of- the men were allowed outside in a penned in area, a few at a time for short durations.  The men were not provided any kind of educational classes and they could not see or talk to their families. Although the men could write letters to their families, pens and paper were only allowed one day a week for a short period of time. If you had been involved in any mishap (like refusing a meal) the “privilege” of writing to your family was revoked. Letters from your family were read by censors and anything that referred to events in the outside world were redacted.

Obviously the powers that be thought that the prison conditions were still too generous for these men and boys who were being held indefinitely without charge. Hundreds of millions of dollars were poured into subsidiaries of Halliburton to build a supermax complex at the base. The current prisons were opened in 2006 and are commonly known as Camps 5 and 6. When Camp 6 opened in December 2006 men were picked at random to be a part of this new facility. One of those unfortunate men was my client Mr. al-Ghizzawi. Al-Ghizzawi was a quiet and gentle man who was also suffering from numerous health problems. When I complained about the inappropriateness of his placement in the solitary conferment in Camp 6 (I should note that the military’s own review team found him not to be an enemy combatant when they first reviewed the status of the men in the fall of 2004) one of the military lawyers told me to think of him as his having "his own apartment."
Camp 6 is a completely closed metal and plastic structure, very much like a self-storage locker. There is no natural lighting. For twenty-six months the men were kept in solitary cells for at least 22 hours a day. The “apartments” are approximately 8’ x 16’ and are fitted with a plastic bed and a metal sink/toilet combination. A thin mattress was provided and a plastic sheet is the only cover that is provided. The air conditioning was kept running so that the men were constantly freezing. The military guards were not allowed to talk to the men and their food was pushed through a bean hole on the floor. The men were allowed two hours of “recreation” time in a 24 hour period. Recreation time could take place at any time of the day or night- on some nights Mr. al-Ghizzawi was awakened at 2:00am and told he could have his recreation time if he cared to. Recreation time itself was spent alone in an approximately 4x4 cage in the center of the camp 6 compound-surrounded by the tall structure of the compound. Camp 5 is for all intents and purposes identical to Camp 6 and these are the two camps that are used for all of the men now remaining at Guantanamo- except of course for the so-called “high value detainees…” so it is fair to assume that should you or I be sent to Guantanamo or someplace very much like it, this is what our “apartment” will look like
Be afraid. Be very afraid. Those same men and women who locked up my clients at Guantanamo for ten years without charge or trial are at it again….and this time they have their sights on me and you. I guess it is an appropriate way for Mr. Obama and “our” Congress to celebrate the ten year "anniversary" of the opening of Guantanamo- by codifying indefinite detention and opening it up for U.S. citizens too. So take a look at this law (you might not want to read the whole 900+ pages-you can read a summary of the low lights here) that Obama signed on New Year’s Eve-while you were out partying -and think about what it must be like to be locked up indefinitely without charge or trial. I should mention that Obama (who told us he was a Constitutional Law scholar) promised that he would never use this law to lock up a U.S. citizen…if this makes you feel more comfortable I will just remind you that Obama has broken just about every promise he made in his campaign to get elected “(“I promise to restore our system of justice” “I promise to close Guantanamo” “I promise to fight for the middle class”)  ”I promise” …we read his lips and we heard his words, and even if he were to change course and keep this one promise, the law now on the books under Obama's signature will be waiting for future use by President Newt or President Mitt or President Sarah.
So what exactly does indefinite detention look like? Let me describe it from the perspective of my two clients and the years they have spent at Guantanamo... by the way, one of whom is still held there and remain…indefinitely, without charge. Why? In his case, because he was in the same guesthouse in Pakistan where a man was arrested that our Government thought was a “bad guy.” Not only is there not a shred of evidence that my client was involved in any terrorist activity or illegal activities but the government now even acknowledges that the person they thought was a “bad guy” is not quite what they thought he was either. It matters not; the indefinite detention continues... indefinitely.
On January 11, 2002 when the boys and men first began arriving at Guantanamo, no preparations had been made in advance for where they would stay….so they stayed in these cages.
The men were at one with the elements. When it rained, they were rained upon. When the winds blew, they shivered and when the hot Cuban sun beat down- it beat down on them without compunction. Lest you think the ivy shown in the picture provided some privacy and protection from the weather let me remind you that this is a recent photo. No ivy was allowed back when these cages were being used, because the men were not allowed any privacy-they were watched at all times, forced to relieve themselves in buckets and only leaving the cages for interrogations.  This went on for months, until permanent facilities were built.
Fortunately or unfortunately, the powers that be will likely be better prepared for you and I. They have now had ten years to prepare and test the conditions. From these cages the men (and boys) were eventually moved into something resembling a prison from the 1950’s. Although there were windows, there was no air circulation and of course there was no air conditioning. Cells lined two walls facing each other and the soldiers paced down the center.  Unlike the prisons in the U.S., these men and boys were not allowed to know anything that was going on in the outside world. They were not allowed newspapers or to watch television. As an attorney I was forbidden to mention any world news to my clients unless it was directly related to their personal situation or legal case. Their only visitors were their attorneys and legal translators-once that was allowed (and it was only allowed after the United States Supreme Court upheld a legal right to challenge detentions and a right to counsel) and, of course, their jailers and their interrogators. Once a week someone would walk through the prison with a cart of books and the boys and men were allowed one book per week. Most of the books in the cart were in English although few of the men read or spoke English. The same books were offered week after week, month after month, year after year. There was no recreation time to speak of- the men were allowed outside in a penned in area, a few at a time for short durations.  The men were not provided any kind of educational classes and they could not see or talk to their families. Although the men could write letters to their families, pens and paper were only allowed one day a week for a short period of time. If you had been involved in any mishap (like refusing a meal) the “privilege” of writing to your family was revoked. Letters from your family were read by censors and anything that referred to events in the outside world were redacted.

Obviously the powers that be thought that the prison conditions were still too generous for these men and boys who were being held indefinitely without charge. Hundreds of millions of dollars were poured into subsidiaries of Halliburton to build a supermax complex at the base. The current prisons were opened in 2006 and are commonly known as Camps 5 and 6. When Camp 6 opened in December 2006 men were picked at random to be a part of this new facility. One of those unfortunate men was my client Mr. al-Ghizzawi. Al-Ghizzawi was a quiet and gentle man who was also suffering from numerous health problems. When I complained about the inappropriateness of his placement in the solitary conferment in Camp 6 (I should note that the military’s own review team found him not to be an enemy combatant when they first reviewed the status of the men in the fall of 2004) one of the military lawyers told me to think of him as his having "his own apartment."
Camp 6 is a completely closed metal and plastic structure, very much like a self-storage locker. There is no natural lighting. For twenty-six months the men were kept in solitary cells for at least 22 hours a day. The “apartments” are approximately 8’ x 16’ and are fitted with a plastic bed and a metal sink/toilet combination. A thin mattress was provided and a plastic sheet is the only cover that is provided. The air conditioning was kept running so that the men were constantly freezing. The military guards were not allowed to talk to the men and their food was pushed through a bean hole on the floor. The men were allowed two hours of “recreation” time in a 24 hour period. Recreation time could take place at any time of the day or night- on some nights Mr. al-Ghizzawi was awakened at 2:00am and told he could have his recreation time if he cared to. Recreation time itself was spent alone in an approximately 4x4 cage in the center of the camp 6 compound-surrounded by the tall structure of the compound. Camp 5 is for all intents and purposes identical to Camp 6 and these are the two camps that are used for all of the men now remaining at Guantanamo- except of course for the so-called “high value detainees…” so it is fair to assume that should you or I be sent to Guantanamo or someplace very much like it, this is what our “apartment” will look like
Although some of the physical confinement conditions in Camp 6 have eased since Obama became president, other conditions are worse (such as the fact that no one at all has been released for over a year now), and 171 men remain indefinitely detained without trial or charge. As the conditions the men are held under are at the whim of our president it is hard to know what our conditions will be like, but it's reasonable to expect 22 hours a day of solitary confinement…..indefinitely, without charge or trial.  Although we were all taught in school about something called "the Constitution," our new reality is that there go you and I but for the grace of the gods, or the grace or whim of the man in the White House who thinks he's a god. 

Although some of the physical confinement conditions in Camp 6 have eased since Obama became president, other conditions are worse (such as the fact that no one at all has been released for over a year now), and 171 men remain indefinitely detained without trial or charge. As the conditions the men are held under are at the whim of our president it is hard to know what our conditions will be like, but it's reasonable to expect 22 hours a day of solitary confinement…..indefinitely, without charge or trial.  Although we were all taught in school about something called "the Constitution," our new reality is that there go you and I but for the grace of the gods, or the grace or whim of the man in the White House who thinks he's a god.