Wednesday, September 6, 2017

From Our Friends Down Under at Justinian

One crusty judge

Trump's lootin' and pollutin' ... CIA torture - settlement prospects open up ... Farcical military commissions ... Roger Fitch reports from Washington 
IN addition to record showers of Trumpian lies and floods in Houston, the Americans just experienced a total solar eclipse, and the occasion provided a brief insight into the disordered mind of Donald Trump.  
The president triumphantly posted a series of photoson Twitter in which his colourful visage slowly eclipsed the black-and-white image of his predecessor, unconsciously acknowledging he's but a moon - or a rock - to Barack Obama's sun.
Despite this unexpected presidential self-effacement, the state of affairs in Washington remains dire.
The tatty, malformed receptacle that is Donald Trump, though cracked and leaking, has become a bottomless vessel for the special needs of family businesses, rapacious corporations (mostly miners), religious zealots, the far right and surviving members of the president's greedy entourage: it's all about looting and polluting, and foreign pillage is under consideration.
People are baling out, and the president's former associates Steve Bannon and Sebastian Gorka have retired to the far-right website Breitbart News, intent on refreshing the badly-crazed pot from outside. 
After initial interest in Donald Jnr, special counsel Robert Mueller and his dream team are considering bringing some kind of charge against the elder Trump, who is meanwhile facing multiple emoluments cases with one scheduled for argument in October
The possibility of a President Michael Pence, however, is little comfort, and those who abhor Trump should be wary of Vice-President Pence, also unqualified, but in some ways more dangerous.
*   *   *
The CIA's rendition plane. Yours for $27.5m
For those wanting to own a piece of history, the infamous aircraft N313P, one of the planes used for CIA torture renditions, was recently put on sale for $27.5 million. N313P ferried torture victims to US vassal states such as Poland and human rights violators like Uzbekistan, Egypt and Libya.
Neither the US government nor American courts have provided any civil remedy for the victims of such CIA operations, and both the Bush and Obama administrations invoked the state secrets doctrine - along with other shameful ruses - to block any recovery of damages by those affected.
Except for a settlement some Abu Ghraib abuse victims obtained from the US government contractor L-3 Services (and others may possibly achieve in a pending suit against the contractor CACI International), victims of US abduction and torture have only received compensation from a few of the accomplices such as Macedonia and Poland, through claims in the European Court of Human Rights.
A new avenue has now opened up, however, through which the CIA could be indirectly obliged to pay compensation, even though the former head of the CIA's Thai torture camp, Gina Haspel, is now the top official at the agency. 
CIA torture gurus: Jessen & Mitchell
When we last visited Ms Haspel (see March Fitch), she'd been evading a deposition in Salim v Mitchell, the lawsuit brought by two CIA-tortured men and the family of a third who was tortured to death (the depositions of other CIA identities were successfully taken).  
Venue for the civil damages suit lay in the progressive enclave of Washington state, due to the Spokane residency of the defendants, the CIA's contract "psychologists" James Mitchelland Bruce Jessen, who designed and implemented the (shudder) "Enhanced Interrogation Techniques" used by the CIA.
While these plaintiffs were tortured at Bagram, in Afghanistan, Mitchell and Jessen began their highly unethical experiments on Gina Haspel's turf in Thailand, with the very first man tortured by the CIA, Abu Zubaydah, as their guinea pig.  
The psychologists relied on worthless "legal" authorisations they received, some from the odious Stephen Bradbury, now Trump's General Counsel at the Transportation Department (see June Fitch). 
Thanks in part to the stubborn persistence of a long-serving federal judge, the crusty 88-year-old Justin Quackenbush, the case of Salim v Mitchell was set for trial in September, after the judge refused the defendants' motions for summary judgment.
Unmoved by the defendants' startling reliance on the Nazi-era acquittal of a gas technician for Zyklon-B, the judge ruled that the Alien Tort Statute was applicable to the charges, including torture, involuntary human experimentation and war crimes.  
The psychologists quickly settled, more here and here.  

Quackenbush: opened up settlements against the CIA
The settlement against Mitchell and Jessen suggests that other men (the Feinstein Report lists over 100),  tortured by the CIA under the psychologists' protocols, could receive compensation at the expense of the agency.  
How? The psychologists wisely obtained an indemnity from the CIA, now activated by settlement of the initial case against them.
As promised, the Trump administration has now returned all copies of the Senate's full 6,700-page Feinstein Report to the Senate in the hope that the "torture report" will be undiscoverable in civil or criminal litigation. 
*   *   *
In June, the five defendants in the Guantánamo "9/ll" military commission appealed a decision of the Court of Military Commission Review that had reinstated dismissed chargesfor which limitations had run. Lawfare had more on this order and the al Qosi order, below.
The 9/11 men appealed on grounds that included a claim that one of the CMCR judges should have recused himself, and the DC court of appeals, agreeing, reversed. More here from Steve Vladeck
In the other order, the renegade CMCR remanded the al Qosi appeal to the commission with an odd sua sponte direction to determine whether the now freed "convict" might have since re-offended (i.e. become an "enemy combatant"), as indeed it appears he has, and implied his post-release conduct might affect his appeal. There was no statutory basis for the direction, and surely, post-conviction behaviour is irrelevant. 
At the pretrial hearings at another of Guantanamo's farcical military commissions - that of Abd al-Rahim al-Nashiri, the government's own witness, Ahmed al Darbi, has been testifying about the depraved treatment he received at the hands of his US interrogators. 
The prosecution must have reasoned this would lessen the effect such damning testimony would have if obtained in cross-examination. Al-Nashiri, it will be recalled, is on trial for sundry fake "war crimes" - offences not committed in a time, or a place, of war - trivial matters to the Pentagon. 
Judge Pohl: allowed prosecution to destroy protected evidence
The 9/11 defence lawyers are asking that the presiding judge, Col James L Pohl withdraw from the case, based on the secret, ex parte permission he gave to the prosecution to destroy evidence that was under a protective court order. 
In the meantime, the 9/11 prosecutors are diabolically claiming that Judge Pohl can't read the defence brief, for "security" reasons.  
The lead defendant, Khalid Sheikh Mohamed, responded:
"I'm used to the idea that they can kill me based on things I can't see. But now it seems they want to kill me based on things the judge can't see."  
Franz Kafka was, after all, a lawyer. 

Thursday, August 3, 2017

From Our Friends Down Under at Justinian....

Republicans besieging the republic

Trumpcare - skinny repeal dies of starvation ... Pardons and impeachments ... The voter purge movement ... Ersatz war crime sees compensation for Mr Khadr ... Democrats need to get a grip ... From Our Man in Washington   
THE Republicans' obsessive quest to blow up Obama's health insurance reforms seemed to crumble, before any Senate hearings or debate. Then, at the last hour, using the vote of the vice-president and a dying senator, Republicans proceeded to debate three discrete demolition proposals: "repeal-and-replace", straight-out repeal (more here) and the terrible idea of a "skinny repeal". 
The sinister purpose was to produce a Senate Bill - any Bill - to send to the House for "reconciliation" with a truly horrible Bill. Gratifyingly, with the final - "skinny" - defeat, the whole project collapsed.
Repeal had been fiercely attacked in the media, who rightly saw it as about much more than government-mandated and subsidised private health insurance. 
Through cruel cuts to Medicaid, "Health Care" Bills of Republicans would have destroyed health care in the very states where Republican legislators' constituents live (more here), defunding along the way rural hospitals, 62 percent of elderly nursing home patients, and essential home careservices. More here.
Republicans were also bent on stripping pre-existing conditions from insurance policies, a cruelty with no plausible explanation - except, perhaps, as payback for handsome corporate contributions (more here). 
The worst proposal would have deprived 32 million Americans of their health insurance(more here), and could have resulted in 208,500 more deaths over ten years. 
From the start, Republican schemes were about abolishing programs for the poor - the House Bill could have destroyed Medicaid, which Republican states also rely upon - in order to fund tax cuts for the rich.   
When previous repeal attempts failed in the Senate, Mr Trump announced he would let "Obamacare" die, and his health secretary is already using money set aside to promoteObamacare to produce videos and other propaganda attacking it. 
Government subversion could still cripple the program, even if it survives the predations of Republicans in Congress. 
*   *   *
The Bush Gang operated largely under cover of night; the Trump Team is a case of daylight robbery, playing out on TV before millions of witnesses.  
With so many crimes, it's possible that (unlike Bush conspirators) some Trump villains could go to jail, unless pardoned by Mr Trump, who's presently considering pardoning himself. Pardons could, however, help the prosecution, be an obstruction of justice (more here), and even precipitate a constitutional crisis.
As talk grows of mass pardonsLawfare has produced a long read on what constitutes an impeachable offence, and the Times has a newly-disclosed memo from the office of special counsel (and Bill Clinton nemesis) Kenneth Starr opining that presidents are indictable.  
*   *   * 
Voter suppression is running riot in the US
Changing demographics are making Republicans a permanent minority in the US, and something must be done. The most obvious way is by obstructing potential Democrat votes, and a creative new way to do that is by unnecessarily or fraudulently cancelling voter registrations. 
Aided and abetted by the Justice Department's Voting Rights division, three Republicans are leading a voter purge movement. One of them has been appointed to Donald Trump's "Election Integrity" commission. 
With Vice President Pence as chair and Kansas secretary of state Kris Kobach as his deputy, the bogus body was ostensibly set up to investigate (virtually non-existent) voter fraud, but at its first meeting, Trump demanded it find him "something".  
Kris Kobach is the man behind Trump's voter fraud obsession. A notorious vote-suppressorand scourge of immigrants, Kobach will be top fox in the henhouse, simultaneously running an election fraud investigation and standing for Kansas governor (legal challenges are underway).
Joining Kobach will be Republican thugs of yesteryear such as former Ohio secretary of state Ken Blackwell - the man who set up and shepherded George Bush's Ohio-based theft of the 2004 election - and the infamous Bush Justice vote-annihilator, Hans von Spakovsky. More here on Horrible Hans.  
The Fourth Horseman investigating "voter fraud" is Christian Adams, general counsel of an organisation that aggressively purges voters.
The Nation has more on the Kobach conspiracy, now beginning to backfire, even in Republican states, although Dahlia Lithwick thinks the chaos is intended and its own reward. 
*   *   *

Khadr: 10 years at Guantanamo on a bizarre murder charge
The Canadian government has paid former Guantanamero Omar Khadr compensation of $10.5 million for its violation of his rights, and apologised
Some media were mystified by the mean-spirited reaction of Canadian citizens to the Khadr payout and apology. It was hardly unprecedented: a Toronto paper cited Australia's (apology-free)  settlement with Mamdouh Habib.
The best exposition of Khadr's case can be found in a 2013 video presentation by his Pentagon-appointed appellate counsel, Sam Morison. In 2017, Fitch found only one Canadian report that acknowledged the elephant in the room, the bizarre murder charge against a combatant legally responding to an attack: 
"Under the laws of war, a combatant who kills another combatant cannot be charged with murder. That's called combatant immunity. Non-combatants who kill a combatant can be charged with murder, and they are entitled to the procedural protections owed to a criminal accused. Mr Khadr was treated neither as a combatant nor as an accused criminal. Instead, the United States invented a new war crime called "murder by an unlawful alien enemy combatant". 
The new offence made it lawful for US soldiers to kill Mr Khadr, but made it a war crime if he killed a US soldier. This ersatz war crime was invented by the United States after his capture and then applied to his actions retroactively. No system governed by the rule of law does this." 
The widow of the US soldier who, even if Omar Khadr threw the grenade, was legally killed, has lost her suit to freeze the compensation payout pending a proceeding to enforce a default Utah judgment for $US 134 million. 
*   *   *
Brooks Bros rioters in Miami-Dade: paid by George W. Bush's recount committee
Democrats are soft, and slow to react. They never expect Republicans to behave as badly as they do, or anticipate the particular path their treachery will take. 
Fitch has always wondered why, in November 2000, Bill Clinton, a sitting president in full control of the government, did not send the National Guard or FBI to break up the Republican-engineered "Brooks Brothers Riot" in Miami, thus allowing Dade County election officials to complete their lawful recount of the Bush-Gore presidential ballots. 
You'd think that, following an election with such a multifaceted - and successful - Republican theft strategy, Democrats would be prepared for the next Republican perfidy, and indeed, Obama seems to have learned from Clinton's inaction, though his efforts in 2016 proved ineffectual.
TIME has a document that shows the Obama administration was fully aware of the possible (cyber-hacking) quid pro quo that Donald Trump might receive from Russians on election day 2016, and had an FBI-military contingency plan in place for dealing with it. 

Tuesday, June 27, 2017

From Our Friends Down Under at Justinian...

Our Man in Washington ... Republican anarchy ... The petulant presidency ... Wrecking ball through democratic institutions ... The conflicted cabinet ... Reinforcement from Fox News ... Foxes in the chook house ... Hanging Judge Gorsuch 
Fox and friend
"The [election] outcome placed total control of the government—executive, Congress, the Supreme Court—in the hands of the Republican Party… the most dangerous organization in world history" - Noam Chomsky 
"Anarchists don't work well together" - Neal Gabler.
SECURE in the knowledge they have a radical - if developmentally-arrested - president at the ready, Republican nihilists in the 115th biennial Congress have begun an ambitious project to dismantle the crumbling remains of the post-Bush v Gore, post-9/11 republic.  
According to Neal Gabler: "Republicans are really anarchists dedicated to undermining government in the furtherance of an economic state of nature where the rich rule... Republicans are great at opposing things, destroying things, obstructing things, undoing things [but] ... terrible at creating things because they have no desire to do so." 
Professor Gabler sees President Trump as more anarchist than incipient fascist. 
Der Spiegel ascribes his climate change denial to stupidity, while his personal values are seen as degenerate by the Times and deviant by Robert Reich.  
Some suggest Trump is an idiotes, in the original Greek sense, but for Michael Dorf, he's a "70-year-old infant" whose tweets are those of "an ignorant racist with no impulse control."
The New Yorker speaks of Trump Derangement Syndrome, and others suspect an obsession with undoing Obama's positive initiatives. In fact, some top psychiatrists see dangerous mental illness behind the "tin-pot despot" persona.
The LA Times had a whole series on the putative president, "a man so unpredictable, so reckless, so petulant, so full of blind self-regard, so untethered to reality that it is impossible to know where his presidency will lead or how much damage he will do to our nation. His obsession with his own fame, wealth and success, his determination to vanquish enemies real and imagined, his craving for adulation - these traits ... in a real presidency ... are nothing short of disastrous". 
As a New York Review of Books writer bluntly observed:
"Trump is doing nothing less than destroying American democratic institutions and principles by turning the presidency into a profit-making machine for his family, by poisoning political culture with hateful, mendacious, and subliterate rhetoric, by undermining the public sphere with attacks on the press and protesters, and by beginning the real work of dismantling every part of the federal government that exists for any purpose other than waging war." 
Coverage of Trump saturates the media (Chrome has a Trump Filter app), and is mostly negative, except for Murdoch's Fox Network, now in the spotlight with the death of its evil genius, Roger Ailes (more here and here on Ailes, who in 20 years did more than anyone else to white-ant US political discourse).   
Fox mostly supports America's naked new emperor. And why not? The president is said to spend five hours a day watching TV, mainly Fox. Add the time he spends tweeting and there's little time to govern.
*   *   *
Trump's top officials are worth a collective $12 billion, not including the cabinet (perhaps $14 billion), and temptation abounds. Many - especially lobbyists flagrantly acting in the interests of their former employers - have received aptly-named "ethics waivers" dispensed by Trump, waivers he tried to keep secret.   
Unpaid "advisers" like Trump's daughter Ivanka and son-in-law Jared Kushner have the most egregious conflicts of interest after Trump himself. Kushner has multiple ethics problems, more here and here.  
*   *   *
Yates: speaking out
Donald Trump has fired three government lawyers investigating his team's Russian connections, and sacked FBI director James Comey isn't the only one responding. The others, acting Attorney General Sally Yates and former Manhattan US Attorney Preet Bharara, have also spoken out. More on Bharara here and here.
The Russian connection could implicate the White House (including Kushner) in other crimes, including colluding with a foreign government, obstructing justice, and bribery. Top law firms, however, are reluctant to represent Trump - he doesn't take advice and might not pay their bills - so he's turned to his personal lawyer, Marc Kasowitz, and the Justice Department.  
Trump's rumoured organised crime ties have meanwhile been investigated by Dutch TV. Videos here
If convicted of anything, or even charged, the irrepressible president may have a contingency plan: pardon himself
*   *   *
The latest foxes introduced into Farmer Trump's chook houses are beyond parody: a mega-merger advocate (Makan Delrahim) as antitrust chief, the head of an anti-immigration organisation (Julie Kirchner) to be Ombudsman for Citizenship and Immigration, and a lobbyist for big polluters (Susan Bodine) to take on enforcement at the Environmental Protection Agency.
At the Federal Communications Commission, the boss fox (chairman Ajit Pai) has already overseen the elimination of the service requirement for the entire business data industry.
The Republican House lent a hand, stripping internet users of their privacy so that regulated companies - who spent millions on the members - can sell the data for a profit (The Intercept has more). There were only 15 apostates among the 230 Republicans who voted, proving the truth of the adage that an honest politician is one who, once bought, stays bought. 
The Verge produced a list of how much each Republican (including Senators) was paid; a new study quantifies the (relatively cheap) cost of buying members of America's spectacularly-corrupt Congress.
The FCC also redefined its rules, allowing a merger that gives Sinclair Broadcasting an overwhelming share of the nation's local television markets. The right-wing broadcasting group will rival Fox and provide another echo-chamber for Republicans, often in markets with few alternative sources of news and information.  
It's bad enough that Gina Haspel, ex-commandant of the CIA's Thai torture camp (see last Fitch), is the agency's new chief (although she is currently at risk of German arrest). Sadly, a leading member of the "dirty dozen" - the torture-counselling lawyers who greased the way for Gina's torture regime - will be general counsel at the Department of Transportation.  
Stephen Bradbury is arguably the most culpable of all George Bush's "torture memo" men.  
*   *   *
Gorsuch: the smiling executioner
The death penalty is a southern tradition: in the past 40 years there have been 1184 executions in the South, against four in the Northeast. The worst offender currently is Arkansas, which was execution-free since 2005. 
Scandalous experimental executions of four men, one with a credible claim of innocence, have been carried out, with predictable suffering by the guinea-pigs. 
New Justice Neil Gorsuch got his chance to "make a difference", providing the necessary fifth vote for one of the Arkansas executions to proceed; it perversely mirrored a 2016 supreme court ruling that spared another man, thanks to Nino Scalia's timely death (see Fitch). 
It was, as the NY Times sadly noted, Justice Gorsuch's very first vote upon joining the court.
Governor Asa Hutchinson, Arkansas's keen executioner-in-chief, is remembered by Democrats as the dour congressman who produced and "managed" the Republicans' 1998 Clinton impeachment spectacle. 

Thursday, February 2, 2017

From our Friends Down Under at Justinian

Trumpian fantasies

A wrap of where we are now with the Trumpian ascendency ... Already talk about presidential replacement as evidence of mental instability emerges ... The administration's "corruption premium" ... 41 prisoners left at Guantánamo, costing $10.85 million each per year ... Roger Fitch files from an anguished Washington 
Caesarian democracy [is typified by] its direct appeal to the masses: demagogical slogans; disregard of legality despite a professed guardianship of law and order; contempt of political parties and the parliamentary system, of the educated classes and their values; blandishments and vague, contradictory promises to all and sundry; militarism; gigantic blatant displays and shady corruption. Panem et circenses once more – and at the end of the road, disaster  – Sir Lewis Namier, "Vanished Supremacies” 
It is generally easy to identify which of Trump's assertions are, in one way or another, unworthy of belief. What is somewhat more difficult to establish is whether his unmistakably dubious statements are deliberate lies or whether they are just bullshit - Harry Frankfurter, Princeton philosopher
In the US presidential election just ended, Donald Trump lost the popular vote by about three million votes, even after his party suppressed another 7 million.  
His 46.1 percent support on election day was at 40 percent (Obama's: 84 percent) by the time he took office.
Even so, on January 20th, as George HW Bush - the last Republican elected president without cheating - lay in intensive care, Donald Trump was sworn in as president of the United States.
He promptly delivered an inauguration speech whose crude nationalist tone harkened back to European rallies of the 1930s, a resonance others found as well.
Erratic rants tumbled out in the days that followed, and within a week, there was talk about presidential replacement under the disability provisions of the 25th Amendment, more here and here
Early evidence of a disturbing mental instability could be found in his delusional and demonstrably untrue claims that the audience who attended his inauguration was the largest in history; soon thereafter, the new president's press flacks were reporting a rapturous reception for the Great Leader at the CIA, of all places. 
The president made an embarrassing appeal to the assembled CIA officers, assuming they'd voted for him and were partisan allies; this, also, was a Trumpian fantasy. More here on Trump's alarming CIA visit.
The new chief's imaginary triumph at Langley was yet another case of "alternative facts", as presidential counsellor Kellyanne Conway called them, an expression quickly seized upon as Orwellian by Eric Blair scholars. 
Conway: comments examined by Eric Blair scholars
The Princeton philosopher Harry Frankfurt - author of On Truth and the influential 1986 essay On Bullshit - was the first to identify the essential nature of Trump's disconnect with truth. A number of writers (here and here) have cited "bullshitting" to explain Trump's fantastic lies, but as Lawfare's Quinta Jurecic notes, disregard for truth "could easily become disregard for democratic norms and the rule of law". 
For some, the Trump transition conjured up images of the fall of the Roman republic and its aftermath, and the man himself was compared to assorted authoritarian leaders in history, eg Augustus, Napoleon III, Mussolini, Hitler and even Erdogan, though George III seems more apt. 
It's true that Trump has an affinity for tasteless Louis XIV knock-offs, consistent with his not-so-elegant heritage.
As for the rise of America's very own authoritarian figure, the Atlantic blamed Trump's ascent and Clinton's fall on movies, TV and pop culture, while a Salon writer credited reality TV for liberating Americans from a "hobble of shame" that had heretofore hindered the elevation of Trump-like beings to leadership positions.
The Guardian's Polly Toynbee meanwhile provided historical context, dusting off her 1988 interview with a man who appeared pathological even then.
*   *   *
Kushner: nepotism
Cabinet appointments are proceeding. The Republicans insisted that Senate confirmation hearings be carried on before the government's Office of Ethics had completed its review of the mostly-dodgy nominees.
When the government's Chief Ethics Officer spoke up on Trump's own derisory ethics compliance efforts, calling them meaningless, he received a threatening summons from the House Republican leadership, reminding him that his term was up for renewal. The Post commented here.  
Ethics officials from both the Bush and Obama administrations professed themselves shocked by Trump's conflicts. More here on ethics. 
The House, perhaps anticipating its representatives' crimes, tried to bring its own Ethics Office under partisan Republican control, but backed off after public outrage. They still managed to move government records useful for ethics investigations from executive control to (privileged) Congressional custody, thus defeating future subpoenas. 
Michael Dorf has described a "corruption premium" in the Trump administration. 
Tweets aside, Mr Trump is holding highly improper private meetings with heads of companies that are contemplating mergers - a great opportunity for pay-to-play and personal enrichment, not to mention insider trading.
If hackers can make millions on inside trades by stealing inside information from merger and acquisition legal firms, what's to stop friends and cronies of Trump family members who know in advance of their leader's next bizarre tweets
Happily for Trump, the very first legal opinion issued by the Department of Justice under the new regime has given its blessing to Trump's appointment of his son-in-law Jared Kushner as a senior adviser, anti-nepotism laws notwithstanding. 
Trump's unresolved emoluments problems have meanwhile resulted in a lawsuit by CREW regarding his foreign investments, more here.
*   *   *
Gitmo: 41 left
January 11th marked the 15th anniversary of the opening of Guantánamo Bay prison and, in the parallel universe that is Gitmo, it seemed perfectly natural that two men held in mistaken identity were among the last of the men released by the Obama administration. One of these was the only one still held who had been captured by Americans on a battlefield.
The final Gitmo transfers began in late December and continued right up to Obama's last day in office
The final count as the clock ran out on 20 January was 41 prisoners; the cost of maintaining them now works out to $US 10.85 million each per year.  
The Post reported on the five men cleared for release who were still at Guantánamo when the Obama administration expired. There were last minute court challenges in Washington on behalf of two of those stranded, but both (here and here) were unsuccessful.    
Among those released on the last day was the only remaining European prisoner, Ravil Mingazov.  
Mingazov is the former Russian ballet dancer-soldier that Fitch once paired for exchange with the US ballet-dancing soldier Bowe Bergdahl. Rejecting Fitch's advice, the Pentagon exchanged five other Guantanameros for Bergdahl, who now faces a court martial for desertion in Afghanistan.
Bergdahl is currently seeking dismissal of the charges in light of the highly prejudicial comments on his case made by the new commander-in-chief - unless the 25th Amendment facilitates another person playing that role. 

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.