FROM ROGER FITCH AND OUR FRIENDS AT JUSTINIAN

Happy birthday Gitmo

ROGER FITCH ESQ • THURSDAY, JANUARY 12, 2012

Milestones and millstones ... Guantánamo's tenth birthday, as Bill of Rights turns 220 ... National Defence Authorisation Act allows for exciting possibilities - including military detention of US civilians ... The new Reichstag Fire Decree ... Latest from US Supremes ... Habeas - British courts step-in where DC Circuit fears to tread

The US reached a milestone on December 15: 220 years since the adoption of its famous Bill of Rights. 

It's older than the French Droits de l'Homme of 1793.

Nevertheless, for reasons best left to historians, on "Bill of Rights Day" Congress suspended large chunks of the 10 amendments (and effectively, habeas corpus) in theNational Defence Authorisation Act .

As expected, Mr Obama abandoned his shammed concerns about the NDAA, and approved a scheme for the military detention of civilians, not unlike the practices of foreign dictatorships. 

January 11 marked a less auspicious milestone: 10 years of the infamous Guantánamo internment camp.

At The Nation, Georgetown Law Prof David Cole reviewed the sordid history of Guantánamo, while Lakhdar Boumediene, the man whose US Supreme Court case established an offshore constitutional right to habeas, sounded off in the New York Times.

Thanks to the NDAA, the Gitmo dungeons will be there for years to come, perhaps for use by disloyal or disaffected Americans.

Comparisons are being made to President von Hindenburg's "Reichstag Fire Decree" of March 1933.  

Henceforth, we will have "a bill of rights for some," but not others.

It's what George Bush only dreamed of achieving, despite his efforts in the Padilla and al-Marri cases. Now, the authoritarian instinct is bipartisan. The complete interdiction ofhabeas is near.

The only constitutional grounds for suspension of habeas are rebellion and invasion. Ironically, the US is marking 200 years since the last war in which a foreign invasion occurred, the War of 1812 with Britain. 

Joanne Mariner and The Atlantic's Andrew Cohen examined Obama's embrace of latent martial law.

As Mariner noted, Obama started it all with a March 2009 brief in the Guantánamo Bay Cases, asserting the same expansive view of indefinite military detention claimed by George Bush. 

Gitmo: soon to be a home for disaffected Americans

Sadly, in justifying a war paradigm everywhere, not just battle zones, Obama's brief cited the words used by the Bush loyalist Judge Richard Leon, in the district court decision later reversed in Boumediene. 

Naturally, Lawfare isn't bothered, but the NDAA adds a new layer of junk law designed to displace valid international treaties that bind the US (eg, Geneva Conventions), as well as domestic laws like the Posse Comitatus Act (1878), which restricts the military at home.   

Armed with the NDAA, Congress will try to block Obama's plan (part of a peace initiative) to release Taliban military officials being held hostage - sorry, as "unprivileged belligerents" - at Guantánamo.

Obama's dismal civil liberties record is now considered worse than that of George Bush. 

The British, and even the Russians are bucketing the US for its poor human rights.   

Law Prof Jonathan Turley is particularly incensed.

Glenn Greenwald and Counterpunch are also outraged.   

*   *   *

The Supreme Court's latest cert grants have been announced. 

Already docketed is the civil suit of a man wrongly arrested for daring to touch Richard Cheney.

Meanwhile, Emily Bazelon reports on the Supreme Court's most vindictive decision this term.

At The Legal Pulse, the blog of the Republican-front Washington Legal Foundation, director Richard Samp is excited about the Supreme Court review of corporate responsibility under the Alien Tort Statute. 

Bill Blum: gadflySomewhat surprisingly, the Obama administration has filed anamicus brief in the Kiobel ATS case supporting corporate liability, perhaps because the defendant (Shell) is Anglo-Dutch. 

Another amicus in Kiobel was filed by a group of Nuremberg scholars, including Melbourne Law Prof Kevin Jon Heller.

The freelance gadfly Bill Blum is worried about three casesbefore the Supreme Court this term.

One of them is the Texas redistricting case. It's threatening to become another Bush v Gore. 

Scotusblog had a preview.

Other "political questions" are likely to be on the Supreme Court's docket.

*   *   *

The DC Circuit may have turned its back on habeas (see previous post) but the British human rights law firm Reprieve has won a great habeas victory in the English Court of Appeals, in a case involving a US-held detainee.

In Rahmatullah, the British court went where the DC circuit refused to go in Maqaleh.  

In nearly-identical Bagram detention cases, the UK court granted habeas to secure the release of a prisoner rendered to the prison from outside the Afghan theatre of war, a man who could easily have been one of the petitioners who won in DC district court but lost on appeal.  

British forces in Iraq had handed Yunus Rahmatullah over to the US, who shipped him to Afghanistan. 

The UK government has now demanded that the Americans release Rahmatullah.

As Harper's Scott Horton noted, the UK court implicitly rejected an opinion by Jack Goldsmith, then head of DoJ's Office of Legal Counsel and now teaching at Harvard and blogging at Lawfare.

Opinio Juris has more.

Goldsmith: ruled out Geneva protections for terror suspectsGoldsmith had opined that "operatives of international terrorist organizations" were not "protected persons" for purposes of Article 49 of the Fourth Geneva Convention, which provides that ...

"individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of motive." 

It would be nice if Article 49 provided some protections to the Gitmo deportees, but it only applies to "occupied territory", a status which was recognised in Iraq but not apparently in Afghanistan.

*   *   *

Amnesty International's new report Guantánamo: A Decade Of Damage To Human Rights lists "10 Anti-Human Rights Messages Guantánamo Still Sends".   

One of the messages is that victims of human rights violations can be left without a remedy, and that's exactly what happened to Abdul Rahim Al-Janko. 

Leon: Republicans' favourite DC judgeDC judge and Republican stalwart Richard Leon recently ruledthat Al-Janko, though innocent and found not to be an "enemy combatant" - by Leon himself - has no civil remedy for his years of lawless detention. 

More here.

Leon primly announced: 

"War, by its very nature, victimizes many of those caught in its wake. Innocent civilians are invariably killed, and sometimes even mistakenly imprisoned. Our legal system was never designed to provide a remedy in our courts for these inevitable tragedies."

How very convenient.

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FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER

The Republican dream

ROGER FITCH ESQ • THURSDAY, DECEMBER 22, 2011

Congressional fat cats ... Corporate crime and financial defalcation ... Constitutional violations ... Gridlock on judicial and ambassadorial nominations ... Roger Fitch surveys the Washington landscape 

Roll Call has a list of the 50 richest members of Congress, and the poorest is worth $6 million.

By co-incidence, Citizens for Responsibility and Ethics in Washington has a new 2011 "Most Corrupt" list for Congress and a "Funds for Favours" report.

For legislators still unsure how to vote, there are plenty of lobbyists to assist and reward them.   

In fact, 5,400 former Congressional staffers have taken the revolving door to become lobbyists since 2001.

*   *   *

Outside Congress, it's still welfare for the truly rich.

Wall Street bankers, having already received, by some estimates, $29.5 trillion in government benefits, are now as well-looked after by Democrats as by Republicans.

Take Obama's Securities and Exchange Commission.

The SEC is racing around the courts burying evidence and covering up crimes with consent decrees lacking any admissions of guilt by the recidivist banks.

The deals being offered smell so bad even federal judges are resisting the settlements.

We've seen nothing like it since 2006 (see my post), when Bush's Justice Department fixer Robert McCallum -  later ambassador to Australia - reduced the penalty in the Big Tobacco litigation from $130 billion to $10 billion.

Now, Manhattan Federal Court Judge Jed Rakoff has rejected the SEC's sweetheart settlement with Citigroup, giving heart to investors everywhere who have suffered from bank fraud during the Global Financial Crisis.

There is more here and here.

*   *   *

Heedless of all this corporate crime and financial defalcation, Congress is busy stripping law courts of jurisdiction over citizens and others the government calls "enemy combatants" due to their "terrorism", although terrorism, like banking, is hardly a military matter. 

It's hard to count the ways the National Defense Authorization Act violates the Constitution, but one might start with Article III, Section 2:

"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

That might permit a civilian trial at Guantánamo, except for the Sixth Amendment to the Constitution: 

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..." 

Anyway, military jurisdiction over civilians isn't a given, according to law prof Steve Vladeck.

This latest Pentagon pre-emption of civilian justice is opposed - by the Pentagon, the Director of National Intelligence, the CIA, the FBI and the Justice Department.

Japanese-Americans don't think much of it, either, but nothing seems likely to stop Congressshort of a presidential veto. 

Senator Ayotte: more tortureOne senator wants to bring back torture.

An amendment by Kelly Ayotte (R-NH) would have repealed the president's executive order banning torture, even as some observers worry about a torture return.

This badly-timed proposal came as the Senate Intelligence Committee was wrapping up its highly critical report on the CIA torture program.

Tea-Partiers are beginning to wake-up and former Bush officials are also opposed to the NDAA provisions. 

*   *   *

In Washington, the habeas hearings of Guantánamo prisoners, first required by appeals courts in 2003 and mandated by the Supreme Court in 2004 and 2008, are all but dead. 

The latest scorecard doesn't include the unsuccessful case of Fayiz Al-Kandari. He's the last of the Rasul petitioners to be considered by the DC Circuit.

Al-Kandari and Fawzi al-Odah  are the only two (of 16) still held from the landmark Rasul–Al Odah case (2004), the case that included the Australians Mamdouh Habib and David Hicks. 

Al-Kandari was an unpublished opinion by a CA panel composed of Brett Kavanaugh, Laurence Silberman and Douglas Ginsburg. 

It was no surprise, with an all-Republican panel and no oral argument.

Professor Vladeck has published a law review article on the four judges actively undermining the Supreme Court's Boumediene decision.

These include, in addition to Kavanaugh and Silberman, Judges Janice Rogers Brown and A. Raymond Randolph. 

*   *   *

Justia's John Dean thinks the Republican dream is post-2012 control of the Supreme Court.

In the meantime, Republicans are content to use parliamentary tactics - eg, the threat of filibuster - to prevent appointments to courts of appeal.

DuMont: appointment obstructedRepublicans have reason to delay: Obama's appointments have already caused the once reliably right-wing 4^th circuit to "turn left".  

Any reason will do to block an appointment. One of Obama's nominees to the Federal Circuit, Edward DuMont, has withdrawn after months of mean-spirited Republican obstruction of his appointment. 

His offence? He's openly gay, enough for some minority members of the Judiciary Committee to indefinitely block his appointment.

Another (successful) Federal Circuit nominee didn't have an easy time of it.

It took two-and-a-half years for Evan Wallach to get on the court.

Luckily, Senate Republicans didn't know about Wallach's devastating study of water torture (see my post of 2006).

In another high profile appointment, that of Caitlin Halligan to the DC Circuit, Senate Republicans have blocked Obama's nominee.   

Why? Because as New York's solicitor-general, she argued gun manufacturers were a public nuisance. 

The seat has been vacant since Chief Justice John Roberts was elevated to the Supreme Court in 2005.

Halligan: shot down over gun nuisance suitIt's not just judicial appointments. Sen. Jim DeMint (R-SC) has blocked the confirmation of an Obama appointee who received a recess appointment as ambassador to El Salvador.

The aptly-named DeMint objected to the ambassador's boyfriendof 20 years ago.

In the past, Obama had several opportunities to make recess appointments - those that the constitution provides can be made without Senate assent, during a Congressional recess.

Now the Republicans stay in continuous session to prevent such appointments.

There's a way out, if Obama has the cojónes to take it, but these he seems to have lost en route to the White House. 

From Roger Fitch and our friends down under...

Land of the brave

Monday, November 21, 2011
Justinian in Roger Fitch Esq

Former general counsel of the CIA under investigation over drone attack "murder" remark ... War crimes don't need a war (apparently) ... Novel offences likely to remain on the books ... Ideological Republican circuit judges flout the Supreme Court ... Our Man in Washington reports  

"Aside from the humanitarian aspects, it is well known that, under excruciating torture, a prisoner will admit almost any suggested crime. Such confessions are, of course, not admissible in trials in civilized nations... Some of our leaders have found that it is easy to forgo human rights for those who are considered to be subhuman, or 'enemy combatants'." 

  Jimmy Carter, the last American president moderately attached to human rights

It's all go in Washington.

The Supreme Court is back in action and has granted certiorari in the cases testing Mr Obama's health care legislation.

In Congress, Democrats doubtful about Democracy have joined Republicans rejecting the Republic and support language in the National Defence Authorization Bill that requires indefinite military detention.

Anyone claimed to have some connection with the Taliban, Al-Qaida or "associated forces" is at risk, even a citizen living in the US.

Over at Langley, the CIA is investigating its former general counsel John Rizzo for his remarks in a Newsweek article. 

In my March 21 post I reported how Mr Rizzo openly talked about the "murder" being carried out by CIA drone attacks. Now he's in trouble, not for running a murder program, but talking about it. 

Rizzo has other problems as well. 

Out on the 2012 presidential hustings, Republican aspirants naturally support assassinations, but several nostalgically cling to torture.

Republicans already in office around the country are busy passing new voting laws making it harder for five million suspected Democrats to vote in 2012 - that's more than the margin in two of the last three presidential elections. 

*   *   *

Rizzo: in strife for talking about drone "murder program"Torture and terrorists are also in the news at Guantánamo, where an arraignment has just been held in the first death penalty military commission brought by the US. 

Incredibly, the Obama administration chose a severely tortured prisoner for the guinea pig.

Now portrayed as the mastermind of the bombing of the USS Cole in Yemen in 2000, Abd al-Rahim al-Nashiri was merely an "unindicted co-conspirator" when two other USS Cole bombers were indicted in New York in May 2003. 

Although Nashiri was in US custody in 2003, he wasn't produced in New York as the CIA was busy torturing him in Thailand and/or Poland, perhaps to learn the whereabouts of the others - and get a confession. 

Polish prosecutors began an investigation of Nashiri's detention in Poland and accorded him "victim" status, but someone has nobbled the case. 

Allegedly, there's a document signed by Poland's former prime minister regulating the CIA prison and describing what to do "if a dead body of one of the persons held there should appear". 

Remote telecasts of the Guantánamo proceedings were allowed, with a 40-second delay to shield "sensitive information."

al-Nashiri: first death penalty commission adjournedThis might include embarrassing or criminal activity, such as the use of private contractors like the Boeing subsidiary Jeppesen Dataplan to abduct and render prisoners, and outright torture by the CIA, its contractors, and intelligence agencies in cooperating countries.

Nashiri is charged with various offences, none of them nice, but all save one unknown to the law of war. 

As I reported on May 21, these "war crimes" didn't even occur during a war, and the charges describe only one actual war crime, perfidy: 

"Abd al Rahim Hussayn Muhammad al Nashiri, an alien unprivileged enemy belligerent subject to trial by military commission, did, in or around Aden, Yemen, on or about 12 October 2000, in the context of and associated with hostilities, in violation of the law of war, to wit: by committing an act of perfidy, said act of perfidy being two men dressing in civilian clothing, waving at the crewmembers onboard USS COLE (DDG 67), and operating and detonating an explosives-laden civilian boat alongside a United States naval vessel, intentionally and unlawfully kill ... 17 persons." 

It's hard to see how Nashiri can be a belligerent, unprivileged or otherwise; there were no hostilities in Yemen in 2000 that would make his deeds a violation of the law of war. And perfidy, though a war crime, requires more than waving.

Nashiri's case has been adjourned, with the defendant sagely selecting a trial date after the US elections.

*   *   *

Judge Brown: partisan Republican ideologueShould he somehow be acquitted, Nashiri could still be held forever as an "enemy combatant".

That will be far easier now, thanks to a new opinion by Janice Rogers Brown that aggressively flouts the Supreme Court and Boumediene. 

Judge Brown is a partisan Republican ideologue whose appointment to the DC Circuit was battled by Democrats for two years. 

Her latest decision in the Latif case requires that district court judges hearing Guantánamo habeas cases always accord a presumption of regularity to government intelligence reports.

The decision worried Lawfare and the Times, while Emptywheel was alarmed at Latif's implications for Congressional military detentions.

Not satisfied with ignoring the Boumediene case in every Guantánamo habeas appeal, DC Circuit panels with right-wing majorities are cancelling oral arguments altogether.

No need to confuse them with facts and arguments. 

It demonstrates the surprising capacity of lower courts to circumvent and subvert Supreme Court precedent. 

*   *   *

The military commission of Salim Hamdan is on appeal in the DC Circuit, where Hamdan - now back in Yemen -is appealing his conviction for "material Support", recently upheld by the Court of Military Commission Review (see my June post). 

Mr Obama hasn't succeeded in filling the three vacancies on the DC Circuit, so there's a good chance Hamdan's  appeal will be assigned to Republican activists.

They're still a majority on the circuit and strongly attached to presidential power during real or rhetorical (terror) wars.

Unfortunately, the other CMCR decision upholding a novel war crime, that of Ali Hamza Al-Bahlul for "conspiracy" (see my October post), could escape judicial scrutiny because Al Bahlul is refusing to authorise an appeal.

That would leave conspiracy on the books as a war crime even though a plurality of the Supreme Court specifically rejected it in Hamdan.

Comforting the Comfortable.....

Comforting the comfortable

Tuesday, October 18, 2011
Justinian in Alien Tort Statute, Citizens United, Donald Rumsfeld, Rendition, Roger Fitch Esq, Torture, US Supreme Court

Analysing the US Supremes most recent term - plenty of goodies for big business, nothing for plaintiff lawyers ... Alien Tort Statute up for a workout ... Torture cases batted around the circuit courts ... Rendition victims lose final appeal ... Our Man in Washington reports

The US Supreme Court sits again this month, but the 2010 term is still being analysed here and here.

Scotusblog has the term's statistics.

By general consensus, big business and conservatives scored well.

Some say the court is only interested in comforting the comfortable.

The court's hostility to litigation and plaintiffs' lawyers led notably to Wal-Mart v Dukes, a class-action killer and the most pro-business decision since Citizens United invented corporate free speech.

More here and here.

The decision in AT&T Mobility v Conception, an arbitration clause case, will have a devastating effect on consumer class litigation. Emptywheel has more.

A leading law dean, Erwin Chemerinsky at the University of California, and Dahlia Lithwick have more on the Roberts Court junta.

While some writers believe the Supreme Court killed class actions, others think the cause is not yet lost.

* * *

The Citizens United wash-up continues. A 4^th circuit district court applying Citizens has compounded the corporate-cash election-buying problem, see here and here, although a 9^th circuit decision has given hope to election reform advocates.

Meanwhile, the cash corruption of legislators, firmly cemented by Citizens, has spread to elected judges.

* * *

In the new supreme court term, the Alien Tort Statute, (aka the Alien Tort Claims Act, ATCA), is at the top of the court's corporate to-do list.

The ATS is foundational American law (1789), and it's increasingly being applied against US oil companies, corporate mercenaries and other adventurers and brigands abroad.

Corporations like being persons for the purpose of political contributions, but subjecting them to tort liability under the ATS is another matter.

Now there's to be a major Supreme Court review of a lower court decision exempting corporations from the ATS.

The 2^nd circuit case, Kiobel v Royal Dutch Petroleum, alleges human rights violations by Shell Oil in Nigeria. International human rights organisations including the US-based Center for Constitutional Rights have filed an amicus brief.

Senator Coburn: opposing judicial nominees who are versed in international lawExxon wasn't so lucky: the DC circuit ruled that the company had a case to answer for human rights abuses in Indonesia.

The 7^th circuit has also held the ATS applies to corporations, while the conservative 11^th circuit ruled for the defendants in a Bolivian-based ATSaction.

Now it's a fight to the death for corporations that smell victory in a corporate-friendly Supreme Court.

The defence triumphs could be a result of the ignorance of international law regularly displayed by US judges. One demented US senator, Tom Coburn (R-Okla.) wants to keep it that way.

* * *

Other DC appeals panels have recently decided that the ATS doesn't apply to non-state actors, or even (in Ali v Rumsfeld) official torture by the United States.

Rumsfeld: there is no right not to be torturedThe suit against the former defence secretary is one of five such suits against US officials for torture and unlawful detention.

Leading the pack is the case of the US citizen famously abused on US soil, José Padilla, who has appealed the dismissal of his civil suit against Rumsfeld.

Padilla's brief in the 4^th circuit is here.

His chances aren't good, judging from the circuit's new party-line decisions denying torture claims of Iraqis against US contractors.

In Padilla's case, Rumsfeld essentially claims there's no right not to be tortured.

Rummy may be correct: a Republican 11^th circuit panel just confirmed Padilla's civil conviction with a finding that the outrageous-government-conduct defencedoesn't apply to conduct unrelated to the charged crime.

The 7^th circuit, meanwhile, has allowed a torture suit against Rumsfeld by civilian contractors to go forward. More here.

In the DC circuit, a visiting district court judge ruled against the government in the anonymous Doe v Rumsfeld.

* * *

In May, the victims of rendition flights arranged by the Boeing subsidiary Jeppesen Dataplan lost their final appeal in a civil suit for torture when the supreme court refused to hear the case (see June post).

Now, court records from a New York state case concluded in May - only now discovered - have exposed new details about the Bush administration policy of rendition and torture.

In tiny Hudson (population 6,713) two corporate players in the rendition business have been litigating a contract dispute.

Perhaps through incompetence the Justice Department failed to intervene in the case, which dates from 2007 and arose from a falling out between subcontractors in the Jeppesen-run renditions.

If the US had claimed "state secrets", hundreds of documentary exhibits would never have come to light.

Thanks to the new revelations, we now know more about the US firms who profited from rendition.

Ironically, the documents contain pro forma contractor promises to abide by specified federal regulations.

Not surprisingly, federal laws against assault, abduction, false imprisonment and torture aren't mentioned, but it's nice to know the contractors were mindful of minorities and those with disabilities, and that no convict labour was used.

Still, rectal-doping the abducted passengers (charmingly referred to by the contractors as "invitees") seems at odds with a "drug-free workplace".

State Department passes ("letters of convenience") were also supplied - obviously forged since the signatures didn't match.

More here and here.

* * *

Ali Hamza Al Bahlul: "conspiracy" back in vogue as a war crimeThe Pentagon's rubber-stamp Court of Military Commission Review has upheld the Guantánamo "sentence" of Ali Hamza Al Bahlul, convicted of imaginary war crimes in a military commission.

The Miami Herald has more.

It's the counterpart of the CMCR's ruling in the case of Salim Hamdan (see my June post), argued at the same time (January 2010) and only decided in June this year.

Like Hamdan, the Al-Bahlul decision relied on strategic recusals and new appointments after the initial hearing - i.e. court-packing - to attain the Pentagon's desired result.

Hamdan's en banc contained one judge who sat on the original panel, but in Al Bahlul every judge from the original panel withdrew or retired.

In both cases, new or recycled Pentagon appointees assured a Pentagon win.

In Al Bahlul's case, the freshly-minted Hamdan precedent was naturally cited, but the CMCR went further and determined that "conspiracy" - a charge that a plurality of the Supreme Court specifically rejected as a war crime in Hamdan's case - was a valid crime.

There's much worse in the 138-page ruling.

Kevin Jon Heller has more at Opinio Juris.

From Roger Fitch and our Friends Down Under

The post-legal society

Wednesday, June 29, 2011
Justinian in Guantanamo, Habeas, Roger Fitch Esq, War crimes, material support

Reinventing the Constitution ... New war crime propped up by discredited 1818 case ... Pentagon stacks military commission review court ... Rogue circuit court circumvents habeas for Guantanameros ... CIA homicides investigated by grand jury ... Our Man in Washington reports

George Bush's quest for a stripped-down, bare-bones constitution is progressing nicely under his nimble successor, Barack Obama.

Evidently, the powers-that-be decided a smooth Democrat - a "constitutional law professor" - was best-equipped to carry out a project begun by clumsy Republicans and stalled by cautious courts.

The results so far have been impressive.

The 1^st Amendment's guarantee of speech has been ingeniously reinterpreted, loosing rivers of corporate cash in public elections.

The 2^nd (guns) has been turned 180 degrees and the 4^th (search and seizure) is on the way out. The 8^th (excessive bail, cruel and inhuman punishment) is pretty much a dead letter.

Demolition of the 5th (due process) and 6^th (speedy trials, impartial juries, right to confront witnesses) will be difficult and take longer, but hope springs eternal in America's governing class.

In fact, we already live in a post-legal society, according to a well-known internet scribe.

To prove it, the Republican House just passed a Bill requiring military detention for "terrorism suspects" who aren't citizens, and Senate Democrats went along with it.

Without civilian courts, there's no habeas.

Is this a great country, or what?

* * *

The DC Court of Appeals seems to have already suspended habeas, at least for Guantanameros (see below), and the scholar Obama, ignoring legal advice, has pre-empted Congress's power to declare war by redefining "hostilities" (reaction here and here).

Yet, to use the buzzword du jour, much still needs "overhauling" in the US constitution.

An obvious example is the Article I, section 8 (10) power of Congress to "define and punish ... offenses against the law of nations," including the law of war.

This isn't good enough. Congress wants to design new war crimes, not define existing ones. As noted in my last post, the shiny new war crime of "material support for terrorism" has been pending before the Court of Military Commission Review.

Mr Obama abandoned the Bush Gang claims, that the newly-minted MST embodied Civil War concepts of "jayhawking" and "banditti".

Indeed, Obama's lawyers conceded no such war crime exists, but soldiered on when Congress re-enacted it.

Eventually, with three Gitmo guilty pleas for MST, government lawyers fronted the CMCR with a brand new argument: "terrorist supporters" are actually guilty of "aiding the enemy" - a real war crime - and cited the Arbuthnot case.

General Jackson: hanged an Englishman for aiding blacks and IndiansA new law review article is scathing in its criticism of the government's reliance on this discredited 1818 case, involving acts of Andrew Jackson now widely regarded as war crimes.

This ad hoc proceeding was held on US-invaded territory, and convicted Britons - who owed no duty to the United States - of "aiding" the "enemy", i.e., blacks and Seminole Indians living in Spanish Florida.

One of the men was hanged by General Jackson despite the jury's sentence of a year's hard labour.

It's the single case the government could find to back a "material support" analogy.

No problem. On June 24, the Pentagon's rubberstamp CMCR seized on Arbuthnot and all the previously discarded arguments as well, in upholding Salim Hamdan's conviction.

In its opinion, the CMCR ignored the modern history of the law of war and its reception in customary US law, while finding new Congressional sources of power in the US constitution.

Opinio Juris dissects the decision here.

A little history is required here.

Hamdan's appeal was first heard by three judges in January 2010, but no decision was announced. Instead, one of the three retired and another recused when an en banc rehearing was announced (four other judges also recused).

The Pentagon then appointed six new judges, one of whom recused.

The resulting handpicked panel of seven consisted of one judge from the January hearing, another panel judge and five new judges.

It was this panel which, sua sponte, sought briefing on "aiding the enemy."

It looks and smells like a Pentagon do-over.

* * *

Going boldly where the Supreme Court is too timid to go, the DC Circuit continues its degradation of evidentiary standards in order to uphold Guantánamo detentions.

David Remes: from Covington partner to Gitmo advocateThe circuit seems bent on preventing any Gitmo habeas from succeeding.

Lawfare has the current habeas scorecard, as well as Gitmo lawyer David Remes's assessment of the DC Circuit's continuing stonewall of Boumediene.

Lawfare's Ben Wittes reported the latest creative denials of Guantánamo habeas by the rogue DC Circuit, here and here.

The conservative Wittes was startled by the court's judicial activism, with "guilt by guesthouse" now entrenched in circuit law.

It's likely to stay that way, as the Supreme Court refuses to touch the toxic habeas law thrown up by the current terror-hysteria.

* * *

Time reports that a grand jury in Virginia is investigating CIA homicides including the torture-death of several Iraqis and an Afghan.

When Obama's lawyers let the statutes of limitation expire for the previous administration's obstructions of justice and Torture Act violations, Bush Gang members seemed poised to escape punishment.

There's no statute of limitation, however, for torture (or war crimes) resulting in death.

The CIA Inspector General is meanwhile investigating the abduction of Khaled El-Masri by the CIA.

Khaled El-Masri: abducted by the CIAThese could be feints by the US following the European Parliament's resolution on American human rights violations and the need for the US to investigate them.

Past investigations by the US have been suspicious. The Virginia grand jury is under the guidance of the Bush regime's special prosecutor, John Durham, who ran out limitations and has so far declined to prosecute any of the crimes uncovered.

* * *

The Supreme Court declined to hear Jeppesen Dataplan.

There will now be no consequences for the Boeing subsidiary that carried out gruesome torture renditions for the CIA and Pentagon.

Boeing effectively obtained impunity for organising and providing "contract services" in which people were assaulted, abducted, falsely imprisoned and flown to torture by foreign governments - or by the CIA.

Boeing won because an evenly divided Supreme Court, unable to reverse the decision, declined to grant certiorari - all according to plan.

As I noted last year (August 16), Obama shrewdly placed Elena Kagan in the Solicitor General position before appointing her to the court, in order to force her recusal, and reduce "liberal" votes, on pending "national security" appeals.

Kagan has recused on cue, wildly enhancing executive powers for Mr Obama, and unfortunately, his successors, too.

The government now has carte blanche to use "state secrets" to conceal its crimes.