From Roger Fitch and our friends down under at Justinian

Roger Fitch Esq • January 26, 2010

Our Man in Washington

Companies transmogrify into people as US Supreme Court strikes down laws limiting corporate funding of politicians … The deadline has come and gone but Guantánamo remains open for business … New evidence on detainee “suicides” ... The laws of war don’t apply to war

“The country is finished. Its all over. But you know, with a new republic like this, if you missed being here at the beginning, the next best thing is to be here at the end.” Gore Vidal

The Supreme Court has announced its decision in the long-awaited campaign finance case, Citizens United v Federal Electoral Commission, and it assures that Americans will continue to enjoy the best government money can buy.

In a widely-expected 5-4 decision, the court struck down limits on corporate spending in elections, overruling legislation whose antecedents date back to 1907 and decades of precedents that had held firm when Sandra Day O’Connor was still on the court.

How? The conservative majority found that corporations have the same First Amendment rights as people.

This new development in corporate personhood led Justice John Paul Stevens, in his 90-page dissent, to wonder if corporations should now be voting, since that too is a form of speech.

Lawyer for Citizens United, Theodore Olsen, told The National Law Journal that the turning point in the case came in March last year during the first oral argument.

Under some pressure deputy solicitor general Malcolm Stewart acknowledged that a book sponsored by a corporation could be banned under federal law if it contained material for or against a candidate’s election.

“Justices were slack-jawed.”

Opinions varied as to the decision’s effect.

A Seattle Times article thought the decision might unleash a trillion dollars in corporate spending in the next election cycle.

The apostate Nixon lawyer John Dean, and the Brennan Center’s Michael Waldman compared it to Bush v Gore – a brazen, partisan act by a Republican majority.

NPR has more and The Nation had already predicted the dangers to democracy inherent in the decision.

As the advocacy group Justice at Stake pointed out in its amicus in the case, there may be grave consequences for states that select judges by popular election.

Liberal law professors found it a clear case of judicial activism and here, but one prof sees a possible silver lining in the application of libel law to corporations, particularly during election campaigns.

Other, mostly gloomy, predictions abound here and here.

New laws are being proposed to offset the decision, but it’s hard to see what can be done about a ruling grounded by the Roberts Court in constitutional dogma.

A constitutional amendment may be the only thing that will save the republic.

* * *

The deadline for closing Guantánamo has come and gone.

Not only is the island prison still open, but Congress is trying to block transfers anywhere else, either to the US or overseas.

Guantanameros face more obstacles to release than Alfred Dreyfus (seen here) did on Devil’s Island.

According to The Washington Post, the Obama DoJ has decided to hold some detainees indefinitely “under the laws of war”.

So far, no one at Guantánamo has had that privilege – none has had the Article 5 hearing required by the Geneva Conventions and US military regulations to see if he is entitled to PoW status.

Absent these hearings detainees are presumed to be PoWs, a treatment denied to Guantánamo inmates for eight years.

The Miami Herald says the same DoJ decision recommends criminal or commission trials for 35 of the detainees.

The “Bali bomber” Hambali is among those being considered for trial in the US although Indonesia has sought his extradition.

Some Australians question the wisdom of a US trial where tainted (torture) evidence could cause the case to be thrown out.

* * *

It was thought that three Gitmo detainees who died the night of June 9, 2006 had been suicides.

That was the Navy’s conclusion.

However, when the Pentagon’s censored report was analysed in a Seton Hall Law School study (caution, 18 MB), many questions were raised.

Emptywheel has more.

Now there is a sensational Harper’s story by Scott Horton (pic) on these “suicides” in which evidence of new witnesses raises the possibility that the deaths occurred outside the cell blocks at a nearby secret interrogation site operated by the CIA or Joint Special Operations Command.

Slate’s Dahlia Lithwick can’t understand why this political and legal bombshell is being ignored by most of the media, although one major newspaper has called for a special prosecutor to investigate.

* * *

Daniel Popeo of the Washington Legal Foundation, a Republican think-tank, warns that “legal activism” – i.e. a court trial – “aids terrorists”.

Mr Popeo naturally supports the notion that the underpants bomber, Umar Farouk Abdulmutallab, should face a military commission, an idea Joanne Mariner scorns.

There is one court decision, however, that Daniel Popeo cites with approval – the opinion in Al-Bihani v Obama, where two of the most primitive (Bush-appointed) members of the DC Circuit have ruled that the laws of war don’t apply to war, i.e. to restrain a president in detentions – a curious result since the law of war, as expressed in treaties, is part of American domestic law.

Scotusblog, the National Law Journal and Emptywheel blog have more.

Judge Janice Rogers Brown seemed to say that during war, the law of war must give way to presidents, although the Supreme Court has repeatedly ruled otherwise, and the Obama administration, renouncing the Bush position, specifically argued that the law of war applied to executive detentions.

While Judge Brown (pic) was discovering a new doctrine not sought by the government, the Obama administration was busy inventing another government privilege, equally abstruse and unknown to law.

Ahmed Ghailani, the indicted USS Cole bomber facing trial in New York after being wilfully withheld from the court for five years, has been seeking dismissal for failure to provide a speedy trial (see my earlier post).

The New York Times has more.

The DoJ, in response, is claiming a new right to detain government-designated “intelligence assets” which somehow cuts across the right to a speedy trial.

Never mind that the Supreme Court said in Hamdi in 2004 – the very year Ghailani was captured – that prisoners can’t be held just to quiz them.

Sadly, a DoJ filing in the Ghailani case adopts the entire range of extralegal claims made by George Bush.

* * *

The briefs are in for John Yoo’s 9th Circuit appeal in Padilla v Yoo, the civil torture case brought by José Padilla against George Bush’s torture architect, and Padilla’s brief is a cracker.

Yoo’s latest law review defence of his dubious legal scholarship has been meanwhile demolished by Emptywheel.

Coincidentally, the appeal of Padilla against his civil terrorism conviction in Miami has now reached the 11th Circuit, where his arguments are likely to resemble those of Ahmed Ghailani.