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.   

Monday, July 25, 2016

From Roger Fitch and Our Friends Down Under at Justinian

Rolling out the big guns

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

Saturday, May 14, 2016

From Roger Fitch and our Friends Down Under at Justinian

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

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