From Roger Fitch and our friends down under...

Land of the brave

Monday, November 21, 2011
Justinian in Roger Fitch Esq

Former general counsel of the CIA under investigation over drone attack "murder" remark ... War crimes don't need a war (apparently) ... Novel offences likely to remain on the books ... Ideological Republican circuit judges flout the Supreme Court ... Our Man in Washington reports  

"Aside from the humanitarian aspects, it is well known that, under excruciating torture, a prisoner will admit almost any suggested crime. Such confessions are, of course, not admissible in trials in civilized nations... Some of our leaders have found that it is easy to forgo human rights for those who are considered to be subhuman, or 'enemy combatants'." 

  Jimmy Carter, the last American president moderately attached to human rights

It's all go in Washington.

The Supreme Court is back in action and has granted certiorari in the cases testing Mr Obama's health care legislation.

In Congress, Democrats doubtful about Democracy have joined Republicans rejecting the Republic and support language in the National Defence Authorization Bill that requires indefinite military detention.

Anyone claimed to have some connection with the Taliban, Al-Qaida or "associated forces" is at risk, even a citizen living in the US.

Over at Langley, the CIA is investigating its former general counsel John Rizzo for his remarks in a Newsweek article. 

In my March 21 post I reported how Mr Rizzo openly talked about the "murder" being carried out by CIA drone attacks. Now he's in trouble, not for running a murder program, but talking about it. 

Rizzo has other problems as well. 

Out on the 2012 presidential hustings, Republican aspirants naturally support assassinations, but several nostalgically cling to torture.

Republicans already in office around the country are busy passing new voting laws making it harder for five million suspected Democrats to vote in 2012 - that's more than the margin in two of the last three presidential elections. 

*   *   *

Rizzo: in strife for talking about drone "murder program"Torture and terrorists are also in the news at Guantánamo, where an arraignment has just been held in the first death penalty military commission brought by the US. 

Incredibly, the Obama administration chose a severely tortured prisoner for the guinea pig.

Now portrayed as the mastermind of the bombing of the USS Cole in Yemen in 2000, Abd al-Rahim al-Nashiri was merely an "unindicted co-conspirator" when two other USS Cole bombers were indicted in New York in May 2003. 

Although Nashiri was in US custody in 2003, he wasn't produced in New York as the CIA was busy torturing him in Thailand and/or Poland, perhaps to learn the whereabouts of the others - and get a confession. 

Polish prosecutors began an investigation of Nashiri's detention in Poland and accorded him "victim" status, but someone has nobbled the case. 

Allegedly, there's a document signed by Poland's former prime minister regulating the CIA prison and describing what to do "if a dead body of one of the persons held there should appear". 

Remote telecasts of the Guantánamo proceedings were allowed, with a 40-second delay to shield "sensitive information."

al-Nashiri: first death penalty commission adjournedThis might include embarrassing or criminal activity, such as the use of private contractors like the Boeing subsidiary Jeppesen Dataplan to abduct and render prisoners, and outright torture by the CIA, its contractors, and intelligence agencies in cooperating countries.

Nashiri is charged with various offences, none of them nice, but all save one unknown to the law of war. 

As I reported on May 21, these "war crimes" didn't even occur during a war, and the charges describe only one actual war crime, perfidy: 

"Abd al Rahim Hussayn Muhammad al Nashiri, an alien unprivileged enemy belligerent subject to trial by military commission, did, in or around Aden, Yemen, on or about 12 October 2000, in the context of and associated with hostilities, in violation of the law of war, to wit: by committing an act of perfidy, said act of perfidy being two men dressing in civilian clothing, waving at the crewmembers onboard USS COLE (DDG 67), and operating and detonating an explosives-laden civilian boat alongside a United States naval vessel, intentionally and unlawfully kill ... 17 persons." 

It's hard to see how Nashiri can be a belligerent, unprivileged or otherwise; there were no hostilities in Yemen in 2000 that would make his deeds a violation of the law of war. And perfidy, though a war crime, requires more than waving.

Nashiri's case has been adjourned, with the defendant sagely selecting a trial date after the US elections.

*   *   *

Judge Brown: partisan Republican ideologueShould he somehow be acquitted, Nashiri could still be held forever as an "enemy combatant".

That will be far easier now, thanks to a new opinion by Janice Rogers Brown that aggressively flouts the Supreme Court and Boumediene. 

Judge Brown is a partisan Republican ideologue whose appointment to the DC Circuit was battled by Democrats for two years. 

Her latest decision in the Latif case requires that district court judges hearing Guantánamo habeas cases always accord a presumption of regularity to government intelligence reports.

The decision worried Lawfare and the Times, while Emptywheel was alarmed at Latif's implications for Congressional military detentions.

Not satisfied with ignoring the Boumediene case in every Guantánamo habeas appeal, DC Circuit panels with right-wing majorities are cancelling oral arguments altogether.

No need to confuse them with facts and arguments. 

It demonstrates the surprising capacity of lower courts to circumvent and subvert Supreme Court precedent. 

*   *   *

The military commission of Salim Hamdan is on appeal in the DC Circuit, where Hamdan - now back in Yemen -is appealing his conviction for "material Support", recently upheld by the Court of Military Commission Review (see my June post). 

Mr Obama hasn't succeeded in filling the three vacancies on the DC Circuit, so there's a good chance Hamdan's  appeal will be assigned to Republican activists.

They're still a majority on the circuit and strongly attached to presidential power during real or rhetorical (terror) wars.

Unfortunately, the other CMCR decision upholding a novel war crime, that of Ali Hamza Al-Bahlul for "conspiracy" (see my October post), could escape judicial scrutiny because Al Bahlul is refusing to authorise an appeal.

That would leave conspiracy on the books as a war crime even though a plurality of the Supreme Court specifically rejected it in Hamdan.