Roger Fitch

Roger Fitch Esq • December 14, 2008

Our Man in Washington

Final gasp of the Bush regime … Legal uncertainties at Guantánamo after 9/11 conspirators plead guilty in death penalty case … Last minute regulations and orders wreak environmental vandalism – but delight the NRA … Washington goes on “pardon watch”

One of the torpid tribunals at Guantánamo sprang back to life on December 8.

The “9/11 Conspirators” were scheduled for a routine pre-trial hearing, but it turned out to be much more when the five defendants announced they were ready to sack their lawyers, drop pending motions, plead guilty and die martyrs.

For once, the government and the defendants agreed.

With little time left, the government desperately wants guilty pleas and death sentences, to provide a fait accompli for the incoming Obama administration.

However, the Military Commissions Act – unlike the Pentagon’s MCA Rules – requires a unanimous jury for the death penalty.

According to trial observer Jennifer Daskal, the judge, Col Stephen Henley, was unsure how to proceed and ordered briefings:

“Could he, or could he not, accept a guilty plea in a death penalty case? If he accepted the plea, would the sentencing jury still be allowed to impose death?

The briefs are due January 4, leaving the court just enough time to reconvene and take guilty pleas before Barack Obama takes office. If the court accepts the plea, and the plea is deemed valid, then double jeopardy kicks in… They have to be tried by this military commission or they cannot be tried by the US government for the specific charges relating to the 9/11 attacks.

If the pleas are made and accepted before January 20, President Obama could not simply announce an end to the commissions and transfer these cases to federal court.”

* * *

Even if President Obama doesn’t immediately suspend the military commissions and end the extralegal detentions at Guantánamo, Bagram and CIA black sites, it is hoped that January 20 will mark the end of the casual brutality – and sometimes, calculated cruelty – that defined the Bush administration.

That’s the hope of a group of US retired military officials who’ve had meetings with Obama aides.

It seems that Obama has a personal interest in ending “counter-terrorism” policies that rely on “enhanced interrogation”.

His Kenyan grandfather was tortured by the British during the revolt against colonial rule

* * *

The Supreme Court has granted certiorari in the case of al-Marri v Pucciarelli, a matter involving one of the most extreme executive actions since Roosevelt’s WWII internment of Japanese-Americans.

Ali Saleh al-Marri (pic), a legal US resident, has been held without charge in solitary confinement in a US Navy brig in South Carolina for five and a half years.

Al-Marri is likely to take its place with the Rasul/Al-Odah, Hamdi, Hamdan and Boumediene cases as black-letter law in the “war on terror” jurisprudence produced by Bush administration excesses.

The reply brief of al-Marri in his petition for certiorari says it best.

Andy Worthington has more.

* * *

George Bush has made Ali al-Marri’s life a misery, but Republicans are equally dangerous out of office.

Consider Lyndon Johnson’s newly-disclosed comments on Republican dirty tricks in 1968, recently in the news.

Robert Parry was reminded how, 40 years ago during a presidential election, Richard Nixon’s intermediaries sabotaged South Vietnamese participation in the Paris peace talks, which the lame-duck Democrat LBJ had called to end the war in Vietnam.

This they did by promising to get the South Vietnamese a better deal after January 20.

Instead, history records the Vietnamese got another six and a half years of bloody war.

The Democrats may have sent similar feelers to the Iraqi government this year concerning the proposed US-Iraqi Status of Forces Agreement.

Such signals would have undermined Bush’s hardline bargaining stance with Iraq and could help explain a SOFA that is reportedly more favourable to the Iraqis.

That’s politics. Yet, Republicans seem to surpass Democrats in executing dirty tricks.

Now, with six weeks to go till they lose power, and fuelled by unbounded arrogance, the Bush administration has put mischief in overdrive.

Last-minute regulations and executive orders are the key.

One Interior Department rule, for instance, purports to withdraw Congress’s authority to prevent mining on public lands.

A Bushwah claims to strip some federal employees of their collective bargaining rights.

The Republicans also sabotaged regulation of toxic substances and hazardous chemicals in the workplace.

It’s the Environmental Protection Agency and the Interior Department where Republican vandalism has been most pronounced.

For instance, the Bush administration – in a parting shot – forced through a regulation backed by the National Rifle Association to allow loaded and concealed weapons in national parks. That should provide great hunting for NRA members.

The most politicised regulatory areas, e.g. environment, will require Mr Obama’s urgent attention.

As TruthDig notes, “Not since 1861 have we watched the last gasps of an outgoing administration with such anxiety” and the blog warns of “ideological mischief” by the secretive Bush administration in its dying days.

Countless extralegal or merely unsavoury edicts of the Bush administration will need to be undone by Mr Obama.

More examples are reported by the The Washington Post and The Washington Independent.

Law.com and ProPublica are keeping track of the “midnight regulations” .

The Bushwhacking of rules will give a heavily Democratic Congress a chance to use the regulation disallowance law, the Congressional Review Act.

It was passed by Republicans in 1996 and used once – against Bill Clinton.

It seems certain that Obama will have the numbers he needs in the Senate to overturn Bush regulations.

* * *

A lame-duck president can also issue pardons.

What if George Bush issued pre-emptive pardons for criminal acts of administration officials?

Jonathan Turley considers this question in the American Chronicle.

Slate speculates what individuals might be pardoned by Bush, while The Washington Independent’s Daphne Eviatar reports the legal controversy surrounding possible blanket pardons for torture.

Besides regulations and pardons, there are records and archives. Records can sometimes disappear, be altered or even – believe it or not – destroyed.

The National Archives felt obliged to send letters to Bush public servants warning them not to steal records as they leave their jobs.

ProPublica has helpfully noted which documents can be legally shredded by an outgoing government.

At the same time, “controversial” political appointees are being embedded in civil service jobs where they can continue to wreak havoc under a new administration.

As The Washington Post’s Dan Froomkin reports, the practice is called “burrowing”.

Naturally, public service unions are keen to have the names of the burrowers.

* * *

Department of Justice lawyers in Miami recently celebrated their first-ever conviction under the US Torture Act.

But the conviction of American-born Charles Taylor Jr for torturing the subjects of his dictator father in Liberia may have established a worrisome precedent: it could be used in future against officials of the present US government.

Law prof Peter Erlinder (pic) argues at Jurist, that the Taylor precedent could be used to prosecute Bush officials.

Will torture be punished? The Washington Monthly, as well as Slate and Alternet all offer views.

The Washington Monthly writer thinks the best way to start is to declare the Naval Observatory – home of the Vice-President, Dick Cheney – a crime scene.