Saturday, September 1, 2012

From Robert Fitch and our Friends Down Under at Justinian

The President's right to kill Americans

Clients at the Bay ... Everyone's getting tired of "targeted killings" by the "serial assassin" ... Brits pay compo to resident mistreated at Gitmo ... How to make cases go away ... DoJ drops Goldman Sachs prosecution ... Huge public disapproval of Congress ... Roger Fitch reports from Washington 
THE Pentagon wants to curtail Guantánamo counsel's access to their clients once they lose DC habeas cases.
See also and here
Lawyers are likely to learn new things, and it's inconvenient when they put to use what they learn. 
The government still claims every word a detainee utters is a secret, presumptively classified from the moment spoken.
It's a contention presently being contested by the ACLU in Guantánamo's "9/11" trial. 
The Pentagon worries that talk about rendition and torture, sorry, "detention and treatment," could cause "exceptionally grave damage".
Quite so: to the government and its staged military prosecutions. 
To be on the safe side, the Obama administration now claims the bare right to counselexpires after habeas cases are adjudicated. 
The New York Times called the action unconstitutional, and a disapproving op-ed appeared in the Washington Post.
DC Chief Judge Royce Lamberth heard the matter and seemed unpersuaded by the government's arguments.
All of the lawyers have security clearances (so do 4.8 million others in the US), so what's the problem? 
*   *   *
AMERICANS are still trying to get their heads around their president's claim that he has a right to kill them.
The LA Times is fed-up with these "targeted killings", which have a long and sordid history.
In Congress, even the bloodthirsty members want to see Obama's "licence to kill", i.e. the legal opinion supporting the killing of Americans overseas.
Repeated congressional demands for the document have been ignored by Attorney General Eric Holder.   
Jimmy Carter has effectively called President Obama a serial assassin, a view that shockedLawfare's Ben Wittes.
Some US states have murder offences that apply to killing with "depraved indifference" or"extreme indifference for human life".  One example is the law being applied in Colorado to the movie theatre shooter.
These laws are typically applied to acts of firing at random or into crowds - not unlike what happens to mourners at funerals in Afghanistan and Pakistan, apparently being targeted by Obama's assassination program.
Maybe there's a need for a federal "depraved indifference" law to apply to the killing of such civilians, including Americans, often in places where there's no war to which the US is a party, e.g. Yemen (there's  a good discussion of Yemen here)It might also make a worthy addition to the Geneva Conventions.
Meanwhile, an Afghan who says his relatives were unlawfully killed in a case of mistaken identity is suing the British government for its role in compiling faulty "kill lists" for US strikes in Afghanistan.
*   *   *
THE UK police are set to investigate British resident Shaker Aamer's mistreatment atGuantánamo.
He's the last UK-connected prisoner, and has already received a reported £1 million pounds from the UK government in settlement of his civil claims of British involvement in his mistreatment.
Helpfully, the head of Britain's MI6, Sir John Sawers, has publicly confirmed that his agency's equivalent in the US resorted to torture.
Another blunt admission has come from the State Department legal adviser, Harold Koh, who recently referred to Guantánamo as a place where the US - perhaps unwisely - had clapped "enemies of the state."  
Ben Wittes was shocked, again.
Nowadays, few people recall that in the 1980s the Yale law professor Harold Koh led the attack on George Bush, père, when Gitmo was first used for illegal detentions - of Haitian boat people (see my post here).
*   *   *
KILLING and torture aside, Senate Democrats have been considering a proposed Due Process Guarantee Act that would  limit the ability of the president to use the "Homeland Battlefield" provisions of the NDAA 2011 Act to seize Americans in the US and hold them indefinitely under military detention. 
The Senate has just released the record of the hearings, which sparked testy exchangesbetween Democrat Senator Al Franken and a surprising Republican witness, the odious Stephen Bradbury.
Bradbury, the Bush Justice Department's long-serving head of the Office of Legal Counsel, wrote some of the most egregious and shocking memos authorising torture. 
*   *   *
DEMOCRATS in the Republican-controlled House have introduced a Bill requiring judicial scrutiny of executive claims of state secrecy.
Another government tactic for making cases go away is to sit on prosecutions until the statutes of limitation run, as Mr Obama's DoJ did for prosecution of the Bush administration's torture crimes, and their subsequent cover-up (see my post of December 12, 2010).
There's a pattern of good-timing in the publication of the confessional memoirs of George Bush, Dick Cheney, the CIA's José Rodriguez and other torture figures from the Bush Regime.
The books have conveniently appeared after the S/Ls for their admitted offences expired.
The 2007 bank frauds are the latest controversy involving limitations. They're subject to a five-year statute, and the Securities and Exchange Commission is rushing around investigating them at the moment, ostensibly to prepare charges before the statute runs - although it must be said, this talk also provides a powerful incentive for timely contributions to the Obama re-election campaign. 
Sometimes it isn't necessary to run out the statute of limitation.
Using prosecutorial discretion, DoJ has decided not to prosecute Goldman Sachs for its well-documented leading role in the fraud behind the not-quite-over Global Financial Crisis. Seealso here.
Government lawyers still find time to prosecute Goldman Sachs employees accused of wrongdoing that injures the bank as opposed to, say, shareholders, American cities, their pension funds, or the public.
*   *   *
IN one of the most important appellate decisions of the summer, the Court of Appeals for the Armed Forces has ruled, in US v Ali, that it is constitutional to subject military contractors and other Pentagon camp-followers to military jurisdiction.
It's an important decision, since US civilian courts have lately granted immunity to the contractors, even when torture is involved.
*   *   *
THE unedifying spectacle of prominent American politicians - mostly Republicans - supporting the Iranian terrorist group MEK continues (see my post of January 18, 2011). 
The apparent immunity of these politicians from the legal consequences of their material support seems to fly in the face of Holder v Humanitarian Law Project, the 2010 Supreme Court decision that found even legal advice to terrorist groups was suspect (see my post of June 22, 2010). 
Perhaps it helps explain the latest Gallup Poll on Congress's performance. 
It shows public approval of Congress has now fallen to 10 percent.