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”.
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.
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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.
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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.
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.
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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.
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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.
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.
These issues remain, although Binyan Mohamed was released on Monday (Feb. 23)
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The Guardian reports that Britain’s MI5 lawyers, like our own John Yoo, have facilitated interrogations.
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.
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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”.