FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER

The Republican dream

ROGER FITCH ESQ • THURSDAY, DECEMBER 22, 2011

Congressional fat cats ... Corporate crime and financial defalcation ... Constitutional violations ... Gridlock on judicial and ambassadorial nominations ... Roger Fitch surveys the Washington landscape 

Roll Call has a list of the 50 richest members of Congress, and the poorest is worth $6 million.

By co-incidence, Citizens for Responsibility and Ethics in Washington has a new 2011 "Most Corrupt" list for Congress and a "Funds for Favours" report.

For legislators still unsure how to vote, there are plenty of lobbyists to assist and reward them.   

In fact, 5,400 former Congressional staffers have taken the revolving door to become lobbyists since 2001.

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Outside Congress, it's still welfare for the truly rich.

Wall Street bankers, having already received, by some estimates, $29.5 trillion in government benefits, are now as well-looked after by Democrats as by Republicans.

Take Obama's Securities and Exchange Commission.

The SEC is racing around the courts burying evidence and covering up crimes with consent decrees lacking any admissions of guilt by the recidivist banks.

The deals being offered smell so bad even federal judges are resisting the settlements.

We've seen nothing like it since 2006 (see my post), when Bush's Justice Department fixer Robert McCallum -  later ambassador to Australia - reduced the penalty in the Big Tobacco litigation from $130 billion to $10 billion.

Now, Manhattan Federal Court Judge Jed Rakoff has rejected the SEC's sweetheart settlement with Citigroup, giving heart to investors everywhere who have suffered from bank fraud during the Global Financial Crisis.

There is more here and here.

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Heedless of all this corporate crime and financial defalcation, Congress is busy stripping law courts of jurisdiction over citizens and others the government calls "enemy combatants" due to their "terrorism", although terrorism, like banking, is hardly a military matter. 

It's hard to count the ways the National Defense Authorization Act violates the Constitution, but one might start with Article III, Section 2:

"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

That might permit a civilian trial at Guantánamo, except for the Sixth Amendment to the Constitution: 

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..." 

Anyway, military jurisdiction over civilians isn't a given, according to law prof Steve Vladeck.

This latest Pentagon pre-emption of civilian justice is opposed - by the Pentagon, the Director of National Intelligence, the CIA, the FBI and the Justice Department.

Japanese-Americans don't think much of it, either, but nothing seems likely to stop Congressshort of a presidential veto. 

Senator Ayotte: more tortureOne senator wants to bring back torture.

An amendment by Kelly Ayotte (R-NH) would have repealed the president's executive order banning torture, even as some observers worry about a torture return.

This badly-timed proposal came as the Senate Intelligence Committee was wrapping up its highly critical report on the CIA torture program.

Tea-Partiers are beginning to wake-up and former Bush officials are also opposed to the NDAA provisions. 

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In Washington, the habeas hearings of Guantánamo prisoners, first required by appeals courts in 2003 and mandated by the Supreme Court in 2004 and 2008, are all but dead. 

The latest scorecard doesn't include the unsuccessful case of Fayiz Al-Kandari. He's the last of the Rasul petitioners to be considered by the DC Circuit.

Al-Kandari and Fawzi al-Odah  are the only two (of 16) still held from the landmark Rasul–Al Odah case (2004), the case that included the Australians Mamdouh Habib and David Hicks. 

Al-Kandari was an unpublished opinion by a CA panel composed of Brett Kavanaugh, Laurence Silberman and Douglas Ginsburg. 

It was no surprise, with an all-Republican panel and no oral argument.

Professor Vladeck has published a law review article on the four judges actively undermining the Supreme Court's Boumediene decision.

These include, in addition to Kavanaugh and Silberman, Judges Janice Rogers Brown and A. Raymond Randolph. 

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Justia's John Dean thinks the Republican dream is post-2012 control of the Supreme Court.

In the meantime, Republicans are content to use parliamentary tactics - eg, the threat of filibuster - to prevent appointments to courts of appeal.

DuMont: appointment obstructedRepublicans have reason to delay: Obama's appointments have already caused the once reliably right-wing 4^th circuit to "turn left".  

Any reason will do to block an appointment. One of Obama's nominees to the Federal Circuit, Edward DuMont, has withdrawn after months of mean-spirited Republican obstruction of his appointment. 

His offence? He's openly gay, enough for some minority members of the Judiciary Committee to indefinitely block his appointment.

Another (successful) Federal Circuit nominee didn't have an easy time of it.

It took two-and-a-half years for Evan Wallach to get on the court.

Luckily, Senate Republicans didn't know about Wallach's devastating study of water torture (see my post of 2006).

In another high profile appointment, that of Caitlin Halligan to the DC Circuit, Senate Republicans have blocked Obama's nominee.   

Why? Because as New York's solicitor-general, she argued gun manufacturers were a public nuisance. 

The seat has been vacant since Chief Justice John Roberts was elevated to the Supreme Court in 2005.

Halligan: shot down over gun nuisance suitIt's not just judicial appointments. Sen. Jim DeMint (R-SC) has blocked the confirmation of an Obama appointee who received a recess appointment as ambassador to El Salvador.

The aptly-named DeMint objected to the ambassador's boyfriendof 20 years ago.

In the past, Obama had several opportunities to make recess appointments - those that the constitution provides can be made without Senate assent, during a Congressional recess.

Now the Republicans stay in continuous session to prevent such appointments.

There's a way out, if Obama has the cojónes to take it, but these he seems to have lost en route to the White House.