Friday, November 20, 2009

From Roger Fitch and our friends down under at Justinian

Roger Fitch Esq • November 13, 2009

Our Man in Washington

Gitmo closure looms … FBI releases documents on extraordinary rendition … Rendition lawsuits bogged down in US courts … All’s well that ends well for Ali Al-Marri

imageThe Congressional Research Service has a report out on the legal issues involved in closing Guantánamo.

Strange, that a prison never authorised by Congress in the first place should be so hard to shut down.

The Attorney General, Eric Holder, is expected to announce by November 16 which detainees will be sent to the US for trial in civil courts and which will be tried in “reformed” military commissions.

If commissions are used, Obama will have to rely on the few Military Commissions Act 2009 offences that are actually war crimes.

That doesn’t include “material support for terrorism,” invented by the Bush Pentagon and used to “convict” David Hicks, Hamdan and al-Bahlul.

As I reported August 5, the Obama administration has disowned the “material support” offence, and tried – unsuccessfully – to have it omitted from the new MCA.

Joanne Mariner has more on these commissions.

* * *

The AG has announced a new policy on state secrets, used regularly to exterminate cases against the government and others, e.g. telcos, even though the Classified Information Procedures Act (CIPA) adequately protects sensitive evidence.

As predicted, the policy “change” was a prelude to government wriggles in two cases, the East Coast’s Horn v Holder and the West Coast case of Mohamed v Jeppesen Dataplan.

The Horn case involves illegal government spying, while the Jeppesen case is about extraordinary rendition and proxy torture.

Sure enough, the government decided to pay $3 million to Richard Horn to settle claims it eavesdropped in Burma on this drug enforcement agent.

That settlement followed a decision by DC district court judge Royce Lamberth gutting the government’s case.

The settlement is all part of a Machiavellian DoJ plan, designed to maintain the unlawful powers Bush acquired.

Paying off plaintiffs at $3 million a pop, however, could prove costly.

The Legal Times Blog has more.

The government now hopes to get Judge Lamberth to withdraw his rulings against the it in the Horn case – in the settlement agreement, the plaintiff agrees not to oppose the government’s motion for vacatur of Judge Lamberth’s orders.

The blogs at Legal Times and Firedoglake explain.

Judge Lamberth’s rulings have already been cited by plaintiffs in the West Coast Al Haramain case, and their amicus in Horn opposes the vacatur.

DoJ state secret claims now smugly recite, “We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power”.

Emptywheel blog comments.

* * *

The government won a state secrets victory of sorts in the 9th circuit, which has ordered a rehearing of a decision rejecting that defence in the Jeppesen (Boeing) rendition case.

At the same time, the government’s claim that extraordinary rendition is a state secret received a setback this month when the FBI provided the ACLU with documents about its involvement in Guantánamo interrogations.

A 2002 memo, sent to the FBI legal counsel by a supervisory agent at Gitmo, was among documents released.

It analyses all of the Bush administration’s interrogation techniques and concludes that 10 of them “are not permitted by the US Constitution”, and that information obtained through them “will not be admissible in any criminal trial in the US”. Several also violated the Torture Statute.

The memo describes the ultimate interrogation category – rendition:

“Detainee will be sent off GTMO, either temporarily or permanently, to Jordan, Egypt, or another third country to allow those countries to employ interrogation techniques that will enable them to obtain the requisite information.” (my emphasis)

That’s clear enough. Or as the FBI commented:

“In as much as the intent of this category is to utilize, outside the US, interrogation techniques which would imageviolate 18 USC s 2340 if committed in the US, it is a per se violation of the US Torture Statute. Discussing any plan which includes this category, could be seen as a conspiracy to violate 18 USC 2340. Any person who takes any action in furtherance of implementing such a plan, would inculpate all persons who were involved in creating this plan. This technique can not be utilized without violating US Federal law.”

Daphne Eviatar (pic) has more.

With rendition lawsuits bogged down in both the US and the UK, it was left to Italy to do the right thing as a court in Milan convicted 23 US citizens, mostly CIA agents, of a 2003 kidnapping in that country.

The Washington Post has more.

Scott Horton comments on the likely consequences, and the LA Times bravely praises the decision.

* * *

There’s been a disappointing result in the most notorious rendition case, that of Maher Arar.

imageIn a sua sponte full court rehearing, the 2nd circuit ruled 7-4 that the Canadian has no remedy for the wrong committed against him when he was seized by the US at JFK airport and sent to Syria for torture.

In a 180 page decision, two-thirds of it dissents, the court divided along party lines with one apostate on each side.

The seven judges in the majority were all appointed by Bushes with the exception of one Clinton man.

The four minority judges were all appointed by Clinton, save one George Bush appointee who was once a Clinton-appointed district court judge.

Three Clinton appointees didn’t participate.

Glenn Greenwald and Scott Horton comment.

* * *

It was October four years ago when I first wrote about Ali Al-Marri.

At that time his case looked to be one of the major outrages in US legal history. Now all has ended well.

Rather than suffer indefinite military detention, US resident Al-Marri was convicted in a real federal court and sentenced to eight years.

With good behaviour, he could be out in five years.

The judgment is here.

Unlike José Padilla, the US citizen held in domestic military detention before being handed over for civil trial, Al-Marri received credit for brig time and brig mistreatment.