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”.