Wednesday, October 19, 2011

Comforting the Comfortable.....

Comforting the comfortable
Tuesday, October 18, 2011
Justinian in Alien Tort Statute, Citizens United, Donald Rumsfeld, Rendition, Roger Fitch Esq, Torture, US Supreme Court

Analysing the US Supremes most recent term - plenty of goodies for big business, nothing for plaintiff lawyers ... Alien Tort Statute up for a workout ... Torture cases batted around the circuit courts ... Rendition victims lose final appeal ... Our Man in Washington reports

The US Supreme Court sits again this month, but the 2010 term is still being analysed here and here.

Scotusblog has the term's statistics.

By general consensus, big business and conservatives scored well.

Some say the court is only interested in comforting the comfortable.

The court's hostility to litigation and plaintiffs' lawyers led notably to Wal-Mart v Dukes, a class-action killer and the most pro-business decision since Citizens United invented corporate free speech.

More here and here.

The decision in AT&T Mobility v Conception, an arbitration clause case, will have a devastating effect on consumer class litigation. Emptywheel has more.

A leading law dean, Erwin Chemerinsky at the University of California, and Dahlia Lithwick have more on the Roberts Court junta.

While some writers believe the Supreme Court killed class actions, others think the cause is not yet lost.

* * *

The Citizens United wash-up continues. A 4th circuit district court applying Citizens has compounded the corporate-cash election-buying problem, see here and here, although a 9th circuit decision has given hope to election reform advocates.

Meanwhile, the cash corruption of legislators, firmly cemented by Citizens, has spread to elected judges.

* * *

In the new supreme court term, the Alien Tort Statute, (aka the Alien Tort Claims Act, ATCA), is at the top of the court's corporate to-do list.

The ATS is foundational American law (1789), and it's increasingly being applied against US oil companies, corporate mercenaries and other adventurers and brigands abroad.

Corporations like being persons for the purpose of political contributions, but subjecting them to tort liability under the ATS is another matter.

Now there's to be a major Supreme Court review of a lower court decision exempting corporations from the ATS.

The 2nd circuit case, Kiobel v Royal Dutch Petroleum, alleges human rights violations by Shell Oil in Nigeria. International human rights organisations including the US-based Center for Constitutional Rights have filed an amicus brief.

Senator Coburn: opposing judicial nominees who are versed in international lawExxon wasn't so lucky: the DC circuit ruled that the company had a case to answer for human rights abuses in Indonesia.

The 7th circuit has also held the ATS applies to corporations, while the conservative 11th circuit ruled for the defendants in a Bolivian-based ATSaction.

Now it's a fight to the death for corporations that smell victory in a corporate-friendly Supreme Court.

The defence triumphs could be a result of the ignorance of international law regularly displayed by US judges. One demented US senator, Tom Coburn (R-Okla.) wants to keep it that way.

* * *

Other DC appeals panels have recently decided that the ATS doesn't apply to non-state actors, or even (in Ali v Rumsfeld) official torture by the United States.

Rumsfeld: there is no right not to be torturedThe suit against the former defence secretary is one of five such suits against US officials for torture and unlawful detention.

Leading the pack is the case of the US citizen famously abused on US soil, José Padilla, who has appealed the dismissal of his civil suit against Rumsfeld.

Padilla's brief in the 4th circuit is here.

His chances aren't good, judging from the circuit's new party-line decisions denying torture claims of Iraqis against US contractors.

In Padilla's case, Rumsfeld essentially claims there's no right not to be tortured.

Rummy may be correct: a Republican 11th circuit panel just confirmed Padilla's civil conviction with a finding that the outrageous-government-conduct defencedoesn't apply to conduct unrelated to the charged crime.

The 7th circuit, meanwhile, has allowed a torture suit against Rumsfeld by civilian contractors to go forward. More here.

In the DC circuit, a visiting district court judge ruled against the government in the anonymous Doe v Rumsfeld.

* * *

In May, the victims of rendition flights arranged by the Boeing subsidiary Jeppesen Dataplan lost their final appeal in a civil suit for torture when the supreme court refused to hear the case (see June post).

Now, court records from a New York state case concluded in May - only now discovered - have exposed new details about the Bush administration policy of rendition and torture.

In tiny Hudson (population 6,713) two corporate players in the rendition business have been litigating a contract dispute.

Perhaps through incompetence the Justice Department failed to intervene in the case, which dates from 2007 and arose from a falling out between subcontractors in the Jeppesen-run renditions.

If the US had claimed "state secrets", hundreds of documentary exhibits would never have come to light.

Thanks to the new revelations, we now know more about the US firms who profited from rendition.

Ironically, the documents contain pro forma contractor promises to abide by specified federal regulations.

Not surprisingly, federal laws against assault, abduction, false imprisonment and torture aren't mentioned, but it's nice to know the contractors were mindful of minorities and those with disabilities, and that no convict labour was used.

Still, rectal-doping the abducted passengers (charmingly referred to by the contractors as "invitees") seems at odds with a "drug-free workplace".

State Department passes ("letters of convenience") were also supplied - obviously forged since the signatures didn't match.

More here and here.

* * *

Ali Hamza Al Bahlul: "conspiracy" back in vogue as a war crimeThe Pentagon's rubber-stamp Court of Military Commission Review has upheld the Guantánamo "sentence" of Ali Hamza Al Bahlul, convicted of imaginary war crimes in a military commission.

The Miami Herald has more.

It's the counterpart of the CMCR's ruling in the case of Salim Hamdan (see my June post), argued at the same time (January 2010) and only decided in June this year.

Like Hamdan, the Al-Bahlul decision relied on strategic recusals and new appointments after the initial hearing - i.e. court-packing - to attain the Pentagon's desired result.

Hamdan's en banc contained one judge who sat on the original panel, but in Al Bahlul every judge from the original panel withdrew or retired.

In both cases, new or recycled Pentagon appointees assured a Pentagon win.

In Al Bahlul's case, the freshly-minted Hamdan precedent was naturally cited, but the CMCR went further and determined that "conspiracy" - a charge that a plurality of the Supreme Court specifically rejected as a war crime in Hamdan's case - was a valid crime.

There's much worse in the 138-page ruling.

Kevin Jon Heller has more at Opinio Juris.