Wednesday, June 27, 2012

From Roger Fitch and our Friends down under at Justinian

Election year show trials
Monday, June 25, 2012
Justinian in Citizens United, Drones, Guantanamo, Habeas, Khalid Sheikh Mohammed, Roger Fitch Esq
US Supremes summarily dismiss review of Citizens United ... Judicial appointments frozen ... Obama's drone frenzy makes him "hit-man-in-chief" ... Guantánamo trials seek to neuter Republican bellicosity ... The sham of habeas hearings ... Our Man in Washington reports 
Obama: launched six times as many drones as "lawless yahoo Bush"
IT'S an election year, and Mother Jones has a handy list of how much a seat in Congress will cost you.
These calculations are not mere cynicism, as the 2010 Citizens United decision of the Supreme Court has made unlimited corporate money the essential medium in US elections.
Now the Supreme Court's conservative majority has just dismissed in a single paragraph attempts by Montana, or any other state, to impose restraints on corporate election spending. 
Meanwhile, the lower courts remain clogged with around 70 judicial vacancies remaining to be filled.
As always happens with an approaching presidential election, the opposition is blocking all judicial appointments -in this case, it's the Republicans, confident that a President Romney will appoint only ideologues and "movement conservative" judges fully responsive to corporate and party wish lists.

As for the 2012 presidential election, it's shaping up as a terrorist-killing competition between Romney and Obama, a quest for "Assassin-in Chief".

Mr Obama is presently unsurpassed at killing.
Leaks to the NY Times show his prowess at personally approving those selected for terrorist immortality, in a "war" whose very existence many question.
Inevitably, a fair number of innocent civilians will be called upon to join the handful of terrorists in the Islamic hereafter - far more than the number of innocent American civilians killed by terrorists each year - 17 in 2011, 15 the year before.
At last, a quiescent media is taking notice of Mr Obama's refined taste for assassination.
The Guardian is calling it the "normalisation of extrajudicial murder", while a Miami Herald writer has described Obama as the "hitman in chief " who has launched six times as many drones as "the lawless yahoo Bush".
The target list conveniently includes anyone likely to get hit. Unless proved otherwise later (i.e. after death), all "military age males" in a strike zone are presumed to have been targetable "militants", and if there are children among them, the Pentagon has a ready excuse in the "adult-sized child". Glenn Greenwald has more.

In the ultimate Catch-22, dead civilians can only establish their innocence posthumously
Even the New York Times delicately ventured, it was "too much power for a president". 
The UN special rapporteur on extrajudicial killings has not shied from using the words "war crime".

A new book traces the journey of Mr Obama from Nobel Peace Prize laureate to Murder Inc. godfather. Gabor Ron and Daphne Eviatar of Human Rights First comment
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Former Guantánamo prosecutor Mo Davis: the US has handed KSM all he wants - martyrdom
WITH such notches on his "terror war" belt, Obama the "national security" enthusiast has travelled so far to the right that there's precious little room for Romney to manoeuvre.  
An important ploy in the marginalisation of the Republican remnants will be the Guantánamo show trials.

The trials are about to resume at Guantánamo, with the arraignment of Khalid Sheikh Mohamed and the 9/11 Gang, even as the commissions' doubtful constitutionality is being considered by the DC Circuit.  
The KSM trial is being called the trial of the century.
Nominally, these trials remain "military commissions", though few charges have had any connection to military offences.
Nevertheless, as the apostate former Chief Prosecutor at Guantánamo, Morris Davis, notes, the US has handed KSM all he wants with a wonderful propaganda trial by an illegal tribunal, leading to his glorious martyrdom by lethal injection.
The confessed mass-murderer will die a "warrior", though nothing he has done occurred in any US war. 
A gratified KSM, adopting the government's classification of him as a "warrior", is now demanding the right to wear a military-style uniform at his trial. 
KSM's judge, US Army Col. James Pohl, is no doubt mindful of the fate of the original judge in Omar Khadr's military commission: when Judge Peter Brownback strayed from the Pentagon script, he was summarily removed and retired in a matter of days (see my post of June 2, 2008).   
There's already a defence motion to remove Judge Pohl from the Abd al-Rahim al-Nashiri case, which he is also hearing.
After six or eight years of pretty much ignoring Guantánamo's system of military justice for "terrorists", the press has suddenly come alive with the arraignment and ongoing pre-trial motions of Nashiri, alleged to have been the ringleader of the USS Cole bombing (formerly, merely an "unindicted co-conspirator").

Professor David Frakt has a piece on the double standards involved in assassinations and commissions and has also written on the pretend nature of the alleged offences.
Nashiri's actions come closest to qualifying as a valid war crime, except there wasn't a war in Yemen in 2000.

As David Glazier, another dissenting law professor has observed, the particular charges against Al Nashiri are logically impossible as there was no war and making it a war offence only increases defences available to the defendant, perhaps even creating insurmountable obstacles to a successful prosecution.
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Judge Brown: white-ant
I PREVIOUSLY reported the rearguard action of partisan Republicans on the DC Circuit, bent on blocking the implementation of the 2008 Boumediene case. 
Several judges have white-anted the precedent or spoken out against the case, e.g. Janice Rogers Brown, perhaps the most shrill Republican on the DC Circuit. 
A new Seton Hall University study shows that court-mandated constitutional habeas hearings have become a sham as district court judges have been routinely overruled by the DC Circuit using novel reasoning to usurp the district courts' authority. 
To be sure, administration apologists such as Lawfare's Ben Wittes dispute the record. 
The Congressional Research Service has just updated its definitive summary of current detainee law.
Now the Supreme Court has sided with the DC Circuit, effectively repudiating the groundbreaking Boumediene decision.
The court has rejected without opinion all seven detainee habeas denials (now eight) appealed from the DC Circuit, plus the civil suit of Lebron/Padilla v RumsfeldScotusblog has more.

The NY Times called it a "retreat" and the LA Times, "bad judgment". Emptywheel headlined its story, "SCOTUS kills habeas corpus".

It's a significant setback for the rule of law, no matter who wins the next election and what changes occur in the composition of the court.
Marjorie Cohn and Steve Vladeck comment.

The unrepentant DC Circuit quickly added to the despair by its decision in the case of Doe v Rumsfeld involving a US citizen who says he was detained and mistreated by the US in Iraq.
The DC panel had no problem with that as long as it was a "war zone".

Jurist has more.

Nevertheless, the Abu Ghraib torture case has gone against corporate mercenaries in the newly progressive 4th Circuit. More here
Prof Vladeck, the token progressive at the terror-hysteric "national security" website Lawfare, has more.
Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (
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