Roger Fitch

Roger Fitch Esq • July 1, 2009

Our Man in Washington

“Terrorist Incapacitation” – the new gloss for indefinite detention … If tax lawyers can be indicted for fraudulent advice, why not John Yoo for torture advice? ... Suppressed report on “interrogation policy” due to see the light of day

Michael Jackson’s death provided the perfect cover for a Friday afternoon “bad news dump”, e.g. the strategically leaked report that the Obama administration is drafting a Bush-like executive order to allow indefinite detention of terrorist suspects.

Glenn Greenwald smelled a rat.

Mr Obama’s rumoured move would shortcut Congress’ new legislation restricting his power to bring detainees to the US.

Detainees are challenging the new law as a backdoor attempt to frustrate the Supreme Court’s mandate of habeas in the Boumediene decision.

Quite fortuitously, the Democrat-friendly Brookings Institution simultaneously released its proposed Model Law for Terrorist Incapacitation, TI being the new gloss for indefinite administrative detention.

The report, by security court advocate Ben Wittes, draws on the expertise of tainted and even criminally-implicated Bush appointees such as Jonathan Fredman, the CIA lawyer who flew down to Guantánamo and counselled interrogators that, “If the detainee dies, you’re doing it (torture) wrong”.

The ground has already been prepared with testimony to Congress on existing security detentions.

The discredited military commissions are also back on the agenda.

In Boumediene, the court said the Constitution isn’t something that can be turned off and on like a tap.

But that’s precisely what Congress and Obama have in mind.

Justice (but not Pentagon) lawyers are offering a few morsels of due process, yet it’s still hard to see – after Hamdan – how military commissions can be used for non-war crimes occurring before there was a war or outside theatres of war.

Human rights organisations are calling for public hearings on commissions, and the proposal has drawn criticism in articles by human rights lawyer Deborah Pearlstein (pic) and law prof David Glazier.

* * *

A ruling in José Padilla’s federal civil suit against John Yoo suggests that the notorious torture advocate may actually face trial.

The nowadays neocon Washington Post was appalled.

Perhaps the Post should read some of the Nuremberg transcripts.

As Opinio Juris blogger and Melbourne Uni law professor Kevin Heller point out, a nearly identical prosecution succeeded after WW II.

Scott Horton also found Nuremberg precedents relevant.

Brian Tamanaha has more on Padilla v Yoo.

As he points out, tax lawyers were recently indicted by the Justice Department for providing the same sort of fraudulent advice.

The Wall Street Journal, quick to the defence of its columnist John Yoo, came up with a startling theory: the act of pursuing Yoo could lead to lawsuits against the Obama administration for its decision to close Guantánamo.

* * *

While Guantánamo detainees who have been held for as long as eight years are being released, the Obama administration continues to litigate habeas cases where it has no evidence.

One such case is that of Abdul Rahim al-Ginco.

He’s one of the men subjected to a second Combat Status Review Tribunal when the first one departed from script and found no combatant status.

In fact, al-Ginco was an opponent of the Taliban regime and had been their prisoner. Andy Worthington has the history.

To date most of the detainees (75 percent) have been found not to be “terrorists” when, after years of government obstruction, their habeas cases were considered on the merits.

Even a Republican loyalist, Judge Richard Leon, has frequently felt compelled to find the men innocent.

In al-Ginco, Judge Leon ruled that the intervening imprisonment and mistreatment of a former Taliban or al-Qaida adherent by his own side ended his status as an “enemy combatant” detained in Guantánamo.

Or as Daphne Eviatar (pic) puts it, ”[al-Qaeda] torture broke the bonds of terrorist group membership”.

* * *

The US has been arguing the Leon principle in reverse in the habeas case of the innocent Chinese Uighurs.

They may have been our friends once, but then we mistreated them. Now they may be our enemies and dangerous.

While Mr Obama won’t bring any Uighurs to the US, four have been shipped to Bermuda.

Others are destined for Palau, where few want to go.

The Supreme Court finished its term without acting on the Uighurs’ petition for certiorari and the DC Circuit Court’s astonishing decision that immigration law trumps habeas corpus continues to bind district courts.

* * *

The CIA Inspector-General’s long-suppressed 2004 report on the Bush administration’s “interrogations” policy is due out soon and should have plenty to say about the psychologists who “designed” the system.

In The New Yorker, Jane Mayer says that Leon Panetta, the new CIA director, has fired the psychologists in question.

(Illo: Panetta, © New Yorker.)

The Firedoglake blog reports on the further adventures of the torture consultants, James Mitchell and Bruce Jessen.

Meanwhile, the ACLU is seeking the rest of the Justice Department’s torture memos.

The Emptywheel blog explains the ACLU’s latest FOI suit against DoJ, this time for the post-Hamdan memo by acting Office of Legal Counsel head Stephen Bradbury .

Apparently Bradbury attempted to evade the Geneva Conventions’ Common Article Three, or justify its violation, after the Supreme Court expressly ruled the Article applied.

John Yoo’s memo on the Convention Against Torture is also sought.

Not surprisingly, the American Civil Rights Union (a right-wing foil to the ACLU) thinks the recently-disclosed Bush DoJ torture memos (see my post of April 23) are just great

* * *

The hero of David Hicks’ case, his detailed military counsel Major Michael “Dan” Mori, is now Lt. Col. Mori and a military judge.

Unlike Charles Swift, the Navy officer who won the Hamdan case in the Supreme Court and was forcibly retired, Dan Mori was able to stick with the military until a new regime arrived.

In an interesting historical parallel, Col. Kenneth Royall (seen here), an Army Judge Advocate appointed by President Franklin Roosevelt to represent the WW II German saboteurs in the famous ex rel Quirin military commissions case, also exceeded his brief.

Against orders, and in the face of presidential opposition, Col. Royall took the case to the Supreme Court, challenging the legality of Roosevelt’s commissions.

Brig. Gen. Royall became Harry Truman’s Secretary of War.