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Roger Fitch Esq • September 26, 2008
Our Man in Washington
Death throes of the Bush regime … Key case to test concept of “enemy combatants” ... Last minute election tricks in the Republican armoury … Cheney ordered not to destroy his papers … The 20 most corrupt members of Congress.
Even in its dying days the Bush administration seeks to vindicate a frightening principle and make it a permanent feature of American law.
It’s the notion that a US president, on his own say-so, can seize and indefinitely detain anyone, anywhere in the world, including US citizens and those on US soil, for any reason he chooses – without “second-guessing”, as the Bush lawyers call judicial review.
All the president has to do is designate individuals as belonging to an invented category he fabricated for the express purpose of defeating their legal rights.
With a wave of Mr Bush’s wand, mortal beings become “enemy combatants” who by some (black) magic are denied all constitutional and human rights. Bush lawyers have told courts that the government can do anything it likes with such people, even kill them (see my post of September 28, 2006).
The key case testing this bizarre doctrine is that of Ali Saleh Al-Marri (pic), a US legal resident from Qatar, seized in Illinois and held since 2003 in a navy brig in South Carolina.
He is the only person known to be in such extralegal detention on US soil. The rest are held in Guantánamo or overseas.
Al-Marri’s lawyers have just filed a petition for certiorari in the Supreme Court.
Although Al-Marri initially won in the Court of Appeals, an en banc panel unexpectedly ruled for the government.
Marty Lederman has written about the 4th Circuit opinion in a post on the Balkin blog.
* * *
In the meantime, the campaign to elect a new US president (or dictator, depending on your point of view) is in full swing.
Is John McCain qualified to serve?
A lawsuit contends he isn’t, as he was born outside the US.
Although some polls show McCain (seen here) is leading Obama, the Republicans can be expected to leave nothing to chance, and are rumoured to be planning an “October surprise”, perhaps some new war development.
The Pentagon, for its part, has tried unsuccessfully to stage Omar Khadr’s military commission during the presidential campaign.
Despite the sacking of the independent-minded Judge Peter Brownback in the Khadr case, the new judge, Patrick Parrish, has deferred the trial until November 10, after the election.
If all else fails, there are voting machines. As the election approaches, the Princeton University IT department has shown elections can be easily stolen by Diebold machines that are maliciously programmed.
The Congress – all of the house and one-third of the senate – is also facing an election on your Melbourne Cup Day.
Some, like Republican Senator Ted Stevens of Alaska, are running while under federal corruption indictment.
The organization Citizens for Responsibility and Ethics in Washington has announced this year’s list of the 20 most corrupt members of Congress, with a fair sprinkling of Democrats.
Senator Stevens is only number 19.
* * *
As the most powerful and (some say) devious vice president in US history prepares to leave office, a lawsuit has been filed to stop Mr Cheney from burning his papers.
The court sided with CREW, which brought the case.
In a timely addition to our knowledge of Cheney (seen here), a new book by Barton Gellman has appeared with revelations about the vice president, his legal counsel David Addington, and the National Security Agency’s illegal spying that has been sponsored by the two men.
The Washington Post has a two-part report here and here.
Speaking of spying, former attorney general Alberto Gonzales has been censured by the Department of Justice Inspector General.
In the warped world of Washington, Freddo was chided, not for felonious eavesdropping, but rather for carelessly handling the classified materials concerning such illegal programs.
* * *
On the Guantánamo front, the recent revelation that a professional psychologist “took the 5th” at a military commission (see my post of August 28) has shaken the American Psychological Association into action.
The APA has finally decided to join the medicos and psychiatrists in banning its members from participating in interrogations where “persons are held outside of, or in violation of, either international law … or the US Constitution”.
That should cover most military and CIA interrogations by the Bush administration.
Meanwhile, the “legal adviser” for military commissions, Brig Gen Thomas Hartmann, has been shifted to a new job after being barred from three successive military commissions by their presiding judges.
In Washington, hearings of Guantánamo detainees are gearing up to be heard, this time in district court habeas hearings rather than DC Court of Appeals Detainee Treatment Act reviews.
The Justice Department wants the courts to order a procedure that gives DoJ the best of both worlds.
Defence lawyers weren’t taking it lying down, and demanded punitive measures for the government’s obstructive delays in district court.
In the end, the government got its way when the presiding judge, Thomas Hogan (pic), declined to sanction the Bush administration.
It seems the deference of federal courts in the face of shameless government manipulations will continue till the last day of the Bush administration.
That has observers wondering what an Obama judiciary might look like.
* * *
Eminent experts are now coming forward with advice on how the next president can undo the errors of the man most people believe to be the worst president the US ever had.
Mother Jones devoted a whole issue to the problem.
MJ also brought an historical perspective to the Bush practices.
While the Pentagon spruiks “war crimes” trials for “high value detainees” at Guantánamo, a conference just held at a Massachusetts law school had as its subject the “high level American war criminals” in the Bush administration.
And in Washington, even as Senate Republicans attempt to interfere in the Boumediene aftermath, Democrat Senator Russ Feingold (pic) has been holding Judiciary Committee hearings on “Restoring the Rule of Law”.
Perhaps the admonition of General George Washington, in his charge to the Northern Expeditionary Force in 1775, provides an answer to what is needed:
“Should any American soldier be so base and infamous as to injure any [prisoner] ... I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause … for by such conduct they bring shame, disgrace and ruin to themselves and their country.”
And why not the Commander-in-Chief?
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