From Roger Fitch and our Friends Down Under

USA's new found regard for international law

Monday, March 21, 2011
Justinian in Guantanamo, Law of war, Roger Fitch Esq

Batting Padilla around the federal circuit courts ... The varied meanings of habeas corpus ... "Material support for terrorism" up for review in CMCR ... The Raymond Davis case - Vienna Convention applied to CIA agent ... Roger Fitch, Our Man in Washington

Donald Rumsfeld just published his memoirs, and he's receiving conservative accolades for "defending the constitution".

Rummy gave Guantánamo his seal of approval as "one of the finest prison systems in the world", though it's far more likely he'll be doing time in, say, Europe.

The former defence secretary and his deputy Paul Wolfowitz have meanwhile succeeded in getting the civil suit against them by José Padilla thrown out.

Padilla is the American citizen seized in a civilian courtroom in New York, taken to a military brig in South Carolina, and subjected to years of pointless punishment and cruelty.

Scotusblog has the new ruling. It's a shocking decision in which an Obama appointee in South Carolina dismissed a torture suit, because it's inconvenient for important people.

It was the reverse of the decision in California in Padilla's lawsuit against John Yoo. Glenn Greenwald and Emptywheel comment.

Rummy: conservative accoladesThe Obama administration stopped its direct legal defence of Rummy and Wolfie, but pays others to do the job. More here.

When first seized, Padilla lost his habeas in New York district court, but won on appeal in the 2^nd circuit.

Then the Supreme Court remanded the case to the 4^th circuit, where Padilla won in district court but lost on appeal. At his second Supreme Court appeal, Padilla would have had five justices (with Scalia) prepared to find his military detention unlawful.

Instead, Padilla was returned to US civil courts, where his Florida conviction is still on appeal in the 11^th circuit.

His lawyers have thus far been busy in the 2^nd, 4^th, 9^th and 11^th circuits.

* * *

The lawless military commissions are resuming, with President Obama issuing a new Executive Order for military detention of "terrorists". The Guardian has more.

This great new policy means prisoners lucky enough to be charged with nothing at all get a chance to seek their release every three years.

Heller: legal impossibility of some of the Guantanamo chargesThe commissions will continue to try Guantánamo prisoners for acts which happened not only outside a war, but before a war.

Melbourne law prof Kevin Jon Heller notes the legal impossibility of some of the cases .

For years, the Bush and Obama administrations have been charging Guantánamo prisoners with "conspiracy" and "material support for terrorism."

Neither is a valid war crime, and in its 2006 Hamdan decision, a plurality of the Supreme Court noted that any "war crime" must be one recognised in the law of war, and specifically said conspiracy wasn't.

Even so, the Bush administration again charged Hamdan with conspiracy, though the jury acquitted on that offence.

The war crime of "material support for terrorism" (MST) has even less to commend it. The crime was unknown when Congress invented it, in 2006, well after any Guantanameros could have committed it.

The ex post facto problem aside, no appellate court has validated these novel war crimes - even though Bush and Obama have secured six shaky convictions.

At last, a court - albeit a Pentagon court - is set to rule on the legal status of conspiracy and MST.

A year after first hearing the appeals of Salim Hamdan and Ali Hamza al-Bahlul, the Court of Military Commission Review set new hearings on two issues: "joint criminal enterprise" (in association with conspiracy), and "aiding the enemy" for its analogy to MST.

Lawfare has the story with the briefs here and here.

In Hamdan, the Obama administration asserted a new "doctrine of retroactive re-characterization" to validate MST, while conceding it was "an exceptional technique that is not frequently used in any system [and] seldom used in order to avoid abuse".

In Al Bahlul the government cited with approval a notorious 1818 summary military tribunal conducted by the ethnic cleanser and Indian-killer General (later President) Andrew Jackson, something that Human Rights First and the Center for Constitutional Rights found scandalous.

Summaries of arguments are here and here.

* * *

Ex-CIA general counsel John Rizzo has revealed how President Obama avoids soiling his hands when ordering aerial assassinations for State Enemies: no names of the Staatsfeinde, bitte!

Rizzo can speak freely. CIA officers who break the law are not punished, and some are even promoted.

Davis: immunity for CIA man in PakistanBetter still, CIA operatives caught spying overseas instantly become distinguished diplomats.

In a new-found regard for international law, the US government asserted the Vienna Convention on Diplomatic Relations, following Pakistan's arrest of a CIA agent, Raymond Davis, for double murder.

The Vienna Convention is usually news when the US flouts it, e.g. carting off Afghanistan's ambassador in Pakistan to Guantánamo.

Davis previously worked for the dreaded corporate mercenary Blackwater and is a good shot, easily dispatching two men with every bullet hitting home, including those in the back. He even had time to photograph the dead before he was arrested.

However, he's hardly a diplomat.

In the end, Davis escaped Pakistani justice when the US arranged the payment of "blood money".

Besides embracing Islamic law and invoking the Vienna Convention, the US also brandished the International Court of Justice, whose uncongenial decisions the US customarily ignores.

In fact, it's been a big month for US support of such alternative and international institutions, usually derided as "lawfare" fora which harm American interests.

The International Criminal Court is another such forum, and the US has spent years trying to kill it off. Yet, in a surprise move, the US ambassador to the UN joined in referring Libyan officials to the ICC.

The US previously passed the "Hague Invasion Act" to punish any country bold enough to turn over Americans for trial.

* * *

The DC Circuit is now overturning every successful Guantánamo habeas that the US appeals. Usually, it's the work of partisan appeal panels featuring the dour Republicans, Brett Kavanaugh, Janice Rogers Brown and Raymond Randolph.

Randolph: most reversed judge in war crimes jurisprudenceUnderstandably, Mr Obama is in no hurry to fill the court's vacancies.

The latest activist decision by an all-Republican DC panel is in the case of Saeed Hatim. Once again, Judge Randolph, the most-reversed judge in Guantánamo jurisprudence, was on the rampage.

Law prof Steve Vladeck explains and Jurist has more.

The New York Times meanwhile has confronted the rogue judge over his role in the Kiyemba (Chinese Uighur) cases.

Jonathan Hafetz agrees at Concurring Opinions.