Roger Fitch

Roger Fitch Esq • March 13, 2009

Our Man in Washington

Obama puts a stop to a parallel legal system for “enemies” selected at random by the commander-in-chief. Or has he? ... Nasty DoJ memos bubble to the surface … CIA destroys torture tapes … AG says “policy differences can’t be criminalised” ... But Dahlia Lithwick is not so sure

After the review ordered by President Obama the government has finally acted in the case of Ali Saleh Al-Marri.

The Obama administration followed the same three-step feint that George Bush used in 2005 in the José Padilla case (see my post of December 22, 2005).

First, the government effectively revoked the presidential order that “authorised” Al-Marri’s military detention in South Carolina, where he has been held for over five years without charge in a Navy brig.

Next, the government released a previously secret criminal indictment in a US district court against the former “enemy combatant” and announced the intention to transfer Al-Marri to Illinois for civil trial.

Finally, the Department of Justice asked the Supreme Court to dismiss Al-Marri’s pending appeal against his military detention on the basis that the transfer from military custody made his appeal moot.

At first, it seemed Obama wanted to keep the fruits of a DC Court of Appeals decision allowing military detention of a legal resident within the US.

The government had acted (as Bush had done in the Padilla case) in the face of a Supreme Court review it was likely to lose.

Al-Marri’s lawyers welcomed a return to civilian courts, but opposed dismissal of the Supreme Court appeal.

DoJ filed a reply brief acquiescing in the defence’s proposed vacatur of the confusing 5-4 Court of Appeals decision that had produced eight opinions.

The Supreme Court agreed, and threw out the 4th Circuit decision.

As Aziz Huq noted in The Nation, it was the fifth time that the 4th Circuit’s most partisan Republican, Judge A Raymond Randolph, had ruled against Guantánamo detainees.

Randolph has now been reversed by the Supreme Court five times in an “enemy combatant” case.

The end of the domestic military detention of Ali Saleh Al-Marri represents the failure of George Bush’s most ambitious assault on the rule of law: an attempt to establish a parallel legal system with indefinite military detention.

This would have displaced civilian courts for “enemies” chosen at the (unreviewable) whim of the president-commander-in-chief. Trials would have been an optional extra.

Obama has put a stop to all this. Or has he?

Guantánamo lawyer David Remes has his doubts.

* * *

I previously noted that ProPublica has a list of missing Office of Legal Counsel memoranda.

Now, more of these “legal opinions” are coming to light.

The Justice Department has released nine formerly secret OLC memos of John Yoo, and his accomplices, at the Bush DoJ.

More information can be found HERE.

The immediate cause of the memos’ release was José Padilla’s civil lawsuit against John Yoo in US district court in California, where the judge ordered disclosure of three Yoo memoranda.

The NY Times and San Francisco Chronicle have more.

Surprisingly, the Obama administration says it will defend Yoo. Daphne Eviatar of The Washington Independent wonders why.

The latest list of memos includes Yoo’s opinion (signed by Jay Bybee) approving rendition to countries that torture.

Another Bybee memo said it was OK to detain the citizen José Padilla in a military prison within the US, a violation of a federal statute on the books since 1878.

Bybee (seen here on the Capitol steps with all the Bybees) is now a court of appeals judge.

Two recent memos, both by the never-confirmed last Bush-era head of OLC, Stephen Bradbury, also came to light.

The first, dated November 2008, disowned the October 23, 2001 John Yoo-Robert Delahunty opinion justifying the use of military force within the US against “terrorists”.

The second memo, signed days before Obama took office, repudiated other opinions, now that the Bush Gang no longer needed them.

The Washington Post huffed about “legal errors” in the latest OLC opinions, but there was a different reaction from lawyer-bloggers Scott Horton and Jack Balkin, who found signs of dictatorship.

To law professor and National Lawyers Guild president Marjorie Cohn (seen here), it was the blueprint for a police state.

Yoo’s response in The Wall Street Journal drew a scathing riposte in Salon.

In any case, as Brian Tamanaha writes in Balkin Blog the opinions put paid to the argument that torturers could rely “in good faith” on the OLC’s advice.

More OLC memos and opinions are on the way. According to ProPublica, there are 35 secret opinions waiting to see the light of day.

I wouldn’t be surprised if one of them says it’s legal to obstruct justice and destroy evidence, if done in the name of a presidential power to fight terrorism.

After all, the CIA has just disclosed that 92 of its “enhanced interrogation” (torture) tapes were destroyed, supposedly after taking legal advice.

* * *

A few newspapers, e.g. The Los Angeles Times, appeared to be shocked, shocked by the OLC revelations.

John Dean in FindLaw’s Writ also seemed amazed.

Those within the Bush administration were less surprised.

A New York Times article on the troubles of Bush lawyers has revealed that in 2004 George Bush appointed John Yoo to a commission considering the release of Nazi and Japanese war crimes records.

Yoo’s appointment was withdrawn, however, when other panel members “protested that it was absurd to name Mr. Yoo, who they believed might have sanctioned war crimes, to a war crimes commission”.

* * *

The Senate Intelligence Committee is dusting off the 1975-76 investigation of CIA misconduct by the Church Committee (pic), with an eye to a similar inquiry, this time into CIA detention and interrogation.

A panel of experts writing in The New York Times discussed the feasibility of a “truth commission” and the alternative, which is prosecution of Bush officials for war crimes.

The Obama administration, meanwhile, remains ambivalent.

Will Attorney General Eric Holder persist with his claim that one can’t criminalise “policy differences?”

As Dahlia Lithwick points out in Slate, “One can choose between two legal options and call it a policy dispute. When one’s policy is to break the law, that’s what we call a crime”.

UPDATE FROM DAVID REMES

FOR THOSE OF YOU INTERESTED IN THE GOVERNMENTS MISREPRESENTATIONS TO EITHER (OR BOTH) THE SUPREME COURT OR THE DISTRICT COURT, THIS FOLLOW UP FROM DAVID REMES:

Here's the line from the SOLICITOR's reply brief in the Supreme Court in al-Marri (when transfer request was pending):

***

"And because the President’s Memorandum removes the existing designation of petitioner as an enemy combatant subject to military detention, any future detention—were that hypothetical possibility ever to occur—would require new consideration under then-existing circumstances and procedure."

Here's the line from the GOVERNMENT's new filing asking the district court seeking to stay the habeas cases:

"Finally, there is no reason to question the finality of any decision to transfer a detainee made in the Executive Order review process, given the Executive Order’s mandate and its purpose." [FN]

[Fn] "These mootness arguments were recently considered by the Supreme Court in granting the Government’s motion to dismiss the appeal as moot and vacate the judgment below in Al-Marri v. Spagone, --- S. Ct. ----, 2009 WL 564940 (U.S. Mar. 6, 2009). There, the Government indicated its intent to transfer the petitioner from military custody to the custody of the Attorney General for criminal prosecution and end his military detention. Id. The Government did not change his enemy combatant designation before transferring him."

***

Not to mention the transfer was not opposed and that the relief sought in the habeas petition-- release from military custody (via civilian charge)-- was provided.

new proposed changes to the protective order

Counsel,


We will shortly be moving to amend the September 11, 2009 Protective
Order and Procedures for Counsel Access and the January 7, 2009
TS/SCI Protective Order and Procedures for Counsel Access, as Amended
on January 9, 2009, to address potential national security risks and
separation of powers concerns created by the recent interpretation of
Paragraph 29 of the Protective Order and Paragraph 31 of the Counsel
Access Procedures allowing a document compiling a detainee's
statements from classified materials to be shared in certain
circumstances with that detainee once the compilation document has
undergone a review by the Privilege Review Team. The changes we
propose (detailed below) would allow petitioners' counsel to share
with a detainee classified or protected information only that counsel
learn from that detainee during the course of communications with the
detainee via legal mail or counsel visits. Of course, as already
permitted under the amended Protective Order and Procedures for
Counsel Access, counsel would be able to disclose to a detainee
information, including detainee statements, properly declassified for
disclosure to the detainee. The changes to be sought through our
motion reflect the practice under and interpretation of the
Protective Order regime that existed until the recent Court orders.
Also, the classification authorities are working to produce
expediently declassified versions of documents containing detainee
statements, so that such declassified documents may be provided to
you.


Proposed Amended Protective Order Paragraph 29 [We would propose
analogous language for corresponding Paragraph 30 of the TS/SCI
Protective Order.]


Petitioners' counsel shall not disclose to a petitioner-detainee
classified information which was not communicated by that
petitioner-detainee directly to counsel during the course of
communications (i.e., legal mail, counsel meeting). Statements of the
petitioner-detainee that counsel acquires from classified documents
cannot be shared with the petitioner-detainee absent authorization
from the appropriate government agency authorized to declassify the
classified information. Should a petitioner's counsel desire to
disclose classified information not communicated directly by that
petitioner-detainee to counsel during the course of communications
(i.e., legal mail, counsel meeting), that petitioner's counsel will
provide in writing to the privilege review team, see infra Section
II.G, a request for release clearly stating the classified
information they seek to release. The privilege review team will
forward a petitioner's counsel's release request to the appropriate
government agency authorized to declassify the classified information
for a determination. The privilege review team will inform
petitioner's counsel of the determination once it is made.


Proposed Amended Protective Order Paragraph 39 [We would propose
analogous language for corresponding Paragraph 40 of the TS/SCI
Protective Order.]


Petitioners' counsel shall not disclose to a petitioner-detainee
classified information which was not communicated by that
petitioner-detainee directly to counsel during the course of
communications (i.e., legal mail, counsel meeting) without prior
concurrence of government counsel or express permission of the Court.


Proposed Amended Procedures for Counsel Access Paragraph 31


Counsel may not divulge to the petitioner-detainee classified
information which was not communicated by that petitioner-detainee
directly to counsel during the course of communications (i.e., legal
mail, counsel meeting). Statements of the petitioner-detainee that
counsel acquires from classified documents cannot be shared with the
petitioner-detainee absent authorization from the appropriate
government agency authorized to declassify the classified
information. Counsel may not otherwise divulge classified information
related to a detainee's case to anyone except those with the
requisite security clearance and need to know using a secure means of
communication. Counsel for detainees in these coordinated cases are
presumed to have a "need to know" information in related cases
pending before this Court. Counsel for respondents in these cases may
challenge this presumption on a case-by-case basis for good cause
shown.


Proposed Amended TS/SCI Procedures for Counsel Access Paragraph 34


Counsel may not divulge to the petitioner-detainee classified
information which was not communicated by that petitioner-detainee
directly to counsel during the course of communications (i.e., legal
mail, counsel meeting). Statements of the petitioner-detainee that
counsel acquires from classified documents cannot be shared with the
petitioner-detainee absent authorization from the appropriate
government agency authorized to declassify the classified
information. Counsel may not otherwise divulge classified information
related to a detainee's case to any person, except those authorized
under these Procedures of the TS/SCI Protective Order, the Court, and
government counsel with the requisite security clearance and need to
know.

Filing Documents

First, I will discuss the filing process up until this past fall: Previously, any document that I wanted to file had to be delivered to the CSO. It did not matter if the document was a simple change of address or a document with protected or classified information. The CSO tendered the document to my opposing attorney at the DOJ and usually within hours after the filing, the DOJ attorney would call and, more often than not, tell me that the document was cleared for filing on the public record. On one or two occasions I received a call from the DOJ telling me that a certain name or piece of information should be redacted (blacked out) and then filed. On at least one occasion I received a call from the DOJ attorney asking me if certain information had been publicly cleared in the past and when I said yes and pointed out the document I was told to go ahead and file it publicly.

In the fall the “Protective Order” was changed somewhat and we are now allowed to file documents directly with the court when we know the document does not contain any protected or classified information. However, documents that we believe potentially contain protected or classified information still must be filed directly with the CSO. The CSO is then required to work with the various agencies to come up with a redacted version of the document for public filing or notify us if there is just too much in the document that is classified or protected and then we are required to file a second notice with the Court stating that the document has not been cleared for public filing.

Since the new Protective Order has been entered the only document that I received approval for filing on the public record was my Petition for Certiorari that I filed with the Supreme Court. Several documents that I filed these past few months with the CSO (because I happened to complete them while at the Secret place) had no protected or classified information within them and I notified the CSO of that fact at the time I filed the documents. Despite that notification, they have still not been cleared for public filing. Other documents I have filed with the CSO contain minimal classified information but those too have not been redacted and then made available for public filing.

A few weeks ago, I started to notice that what went in never came out and I became concerned that none of my filings are making it onto the public record. It is not that the CSO is saying that the documents cannot be filed on the public record. The documents are just being ignored, as though they do not exist. I contacted my opposing counsel and I was told that if I really wanted these filing made available (!) for the public record they could request that the various agencies review them, but that will take time. Yikes… if I really want them on the public record the DOJ will see what they can do! I understand that it might take some time to review all of these documents but apparently clearing documents for public filing is not even on the radar anymore… unless you beg.

Roger Fitch

Roger Fitch Esq • February 24, 2009

Our Man in Washington

Prez Obama adopts Bush legal strategies … Boeing subsidiary sued for flying rendition planes … Bagram prison likely to replace Guantánamo as dumping ground for the indefinitely detained … Uighurs trapped in partisan appeals court

The American nightmare may not be over.

While President Barack Obama’s first fortnight finished well enough, by the end of the third week his lawyers were adopting the most shameful “legal” positions of the old regime.

It looks like Mr Obama intends to (1) block investigation of Bush administration crimes and (2) maintain for his own use the extravagant court rulings Bush obtained.

The most disappointing development was Obama’s invocation of the dreaded state secrets doctrine.

On February 9, government lawyers came to the 9th Court of Appeals in San Francisco arguing the Bush version of state secrets, in which a whole case can be dismissed – not just evidence excluded – on the say-so of government functionaries claiming “national security”.

By “national security” the government means something involving the CIA, its contractors, and foreign allies. Rendition and torture, for instance.

The case on appeal is the civil suit for damages brought by Binyam Mohamed (see below) and four others against a Boeing travel services subsidiary, Jeppesen Dataplan, which staffed and flew rendition flights for the CIA. Slate has more.

It was a complete about-face from Obama’s election promises and his AG’s latest representations.

Moreover, as legal ethicist and law professor David Luban points out, if “you cover it up, you own it”.

The Columbia Journalism Review has more.

Days later, in the San Francisco court of federal judge Vaughn Walker (pic), Obama lawyers adopted the identical position of the Bush administration in the notorious Al-Haramain case, claiming state secrets once again.

The New York Times has more.

* * *

On the other side of the country, Obama’s lawyers obtained a stay in a Bush administration appeal to the Court of Military Commissions Review.

That’s the military commission of Mohamed Jawad who was 16 when he was seized for allegedly throwing a grenade at American occupation soldiers in Kabul – hardly a “war crime”, even if true.

The Bush administration had appealed the decision of the commission judge to exclude Jawad’s confessions because of torture.

Many wondered why Obama didn’t simply withdraw the appeal.

The new administration is also proceeding with the Bush motion to dismiss Jawad’s habeas corpus application.

Jawad’s brief in opposition is here. The Washington Independent has more.

* * *

Mr Obama still has an opportunity to redeem himself when his lawyers file their brief in the Supreme Court – due March 23 – in the case of the only man still jailed as an “enemy combatant” on the US mainland, Ali Saleh al-Marri.

Jane Mayer has a piece in The New Yorker on Mr al-Marri.

Things don’t look promising for al-Marri. Solicitor General Elena Kagan (seen here) has said she believes “enemy combatants” can be anywhere and the “war on terror” everywhere, as Bruce Fein notes in The Washington Times.

The Obama administration has tried to avoid defining “EC” in the Guantánamo habeas cases, but Judge John Bates has ordered DoJ to provide its definition by March 13.

Meanwhile, in the four Bagram habeas cases also being heard by Judge Bates, DoJ says that it will stick to the Bush position that such detainees have no constitutional rights.

After the Supreme Court ruled in 2004 that Guantánamo prisoners had rights, the Bush administration began taking “war on terror” prisoners to Afghanistan, using the “battlefield” excuse for denying habeas.

That was the fate of Judge Bates’ Bagram petitioners, and if the Obama-Bush position is upheld, Bagram will simply replace Guantánamo as a lawless dump for the indefinitely detained.

* * *

Obama could have stopped Bush’s frivolous appeals and bad faith stonewalling in pending cases such as that of the Chinese Uighurs held at Gitmo, but he hasn’t.

Now, in a flagrant example of judicial activism, Republican operatives on the DC Court of Appeals have decided – in the Uighurs’ case – that immigration law trumps the Constitution, and even habeas corpus.

Judges A Raymond Randolph and Karen LeCraft Henderson reversed the order of District Court Judge Richard Urbina that the Uighurs be brought to the US.

The majority opinion showed how partisan the court has become, with a point-by-point attack against the opinion of Judge Judith Rogers, a Clinton appointee.

The case was briefed and argued before Obama took office, but he could have released the Uighurs into the US ahead of the court’s (not unexpected) decision flouting the Boumediene case.

Perhaps Mr Obama was cynically waiting for a new judicial precedent enhancing the powers – absurdly excessive – of a US president.

If Obama frees the Uighurs now, the Court of Appeals decision will not be appealed. It’ll be the law.

* * *

In the pending UK case of the Guantánamo detainee Binyam Mohamed (pic), the British government claimed the US administration – Obama as well as Bush – had forbidden the release of a 25-line summary of Mohamed’s torture which the High Court redacted from its recent judgment.

Glenn Greenwald has the history in Salon

It now seems the British wanted to be told not to release the redaction, as it damages MI5 as much as the CIA.

In fact, the Foreign Office solicited the letter from the US.

The Times has more.

These issues remain, although Binyan Mohamed was released on Monday (Feb. 23)

* * *

The Guardian reports that Britain’s MI5 lawyers, like our own John Yoo, have facilitated interrogations.

Yoo’s career, incidentally, is now in trouble at home, but his perverted distortions of international law live on and have turned up overseas.

A uniformed lawyer with the Israel Defence Force is accused of cooking the Geneva Conventions and tailoring international law to the requirements of the IDF during its recent Gaza invasion.

* * *

The Daily Mail reports that the US “dirty bomb plot” may have originated in a CIA misreading of a thirty-year old satire on building a hydrogen bomb.

Barbara Ehrenreich (pic), one of the satire’s authors, was not amused.

What irony, if a joke gave rise to the misery of José Padilla and Binyam Mohamed: each is said to have been tortured for a confession implicating the other in the “dirty bomb”.