Monday, November 5, 2012

From Roger Fitch and our friends down under at Justinian

Supreme Court timebombs

New term for US Supremes ... Certiorari petitions ... Critical mass theory of constitutional change ... Presidential election and the court ... Judicial techniques ... Conspiracy as a war crime ... The CIA agent who didn't torture winds-up in jail ... Our Man in Washington, Roger Fitch, reports 
THE Supreme Court's new term has started and it's well-covered, as usual, by ScotusBlog, the brainchild of Tom Goldstein.
The court has begun grants of certiorari petitions (including a rare handwritten one), but the vast majority are denied, such as the attempts by two Republican statesto thwart voters.
However, in Texas voter cases, the court could decide to use voter litigation to throw out a whole section of theVoter Registration Act, i.e. the provision that is applied to (mostly) southern states with a history of discrimination against racial and ethnic minorities.
Balkinblog has more.
One case likely to be granted certiorari is the "Pay for Delay" generic drug case.
The government wants the court to  consider the "reverse payments" drug companies make to potential competitors.
Then there's "marriage equality" cases. Eight different petitions concern the federal Defence of Marriage Act.
Already argued is a case that could end affirmative action in US universities and elsewhere. 
Oral argument in the case, Fisher v University of Texas, led to an interesting discussion of the "critical mass" theory of constitutional change.
The case attracting the most attention is Kiobel v Royal Dutch Petroleum and the meaning of 33 words: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."
It's the entire text of the Alien Tort Statute, a law passed by Congress in 1789
Scotusblog reviews what's at stake. More here.
The Roberts Court normally prefers to limit tort liability for corporations, but how can the conservative majority square that with the Citizens United finding that corporations are "persons" for other purposes? 
One way might be to throw out liability for everybody, individuals as well, so long as all the acts occurred abroad. Lawyers at ExxonMobil, another ATA case, will be watching closely.
The court meanwhile denied cert to Chevron, which was seeking to block an $18 billion Ecuadorian judgment for environmental damage.
The court has refused to hear an appeal of the long-running Hepting v AT&T, the case that involved a telecom's warrantless surveillance of citizens.
Wired and Glenn Greenwald have more. 
The companion EFF v Hepting is still (just) alive.
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SCOTUS: the class of 2012
ACCORDING to the liberal-lawyer American Constitution Society, the future direction of the Supreme Court depends very much on who wins this year's presidential election.
A court with an agenda has many judicial techniques available to implement it, e.g. "stealth overruling" and "timebombs".
That's why the court's steep tilt to corporate and conservative causes is attracting media attention, with the Nation devoting an entire issue to the "1 Percent Court"; more here andhere
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SALIM Hamdan's appeal of his military commission conviction has been decided by the DC Circuit
The now-repatriated Yemeni argued that Material Support of Terrorism (MST) is not a recognised war crime, and not surprisingly, judges independent of the Pentagon had no trouble finding MST - invented by Congress in 2006 - did not exist in 2001, when Hamdan was supposed to have committed it. 
Michael Dorf comments.
The case was long-delayed and meddled-in by the Pentagon at its Court of Military Commission Review (see my post of June 29, 2011) before reaching the circuit court. Once it got before a proper Article III federal court, even one consisting entirely of Republican appointees, MST was doomed. 
There's more on this important case herehere and here.
The companion appeal from the CMCR, Al Bahlul - a conviction for conspiracy - is still pending and will be rebriefed in light of Hamdan.
Kevin Jon Heller convincingly argues that the decision in Hamdan II will also doom conspiracy as a war crime.
David Frakt has more on Al Bahlul, his former client.
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Court with an agenda
THE Supreme Court ruling in Citizens United - that corporations have a right to give politicians unlimited amounts of money from their corporate treasuries as a First Amendment right of free speech - is a gift that just keeps giving for the Republicans and their allies. 
ProPublica reviews the history of money in politics
Emboldened by the Citizens rationale, the US Chamber of Commerce is now attacking anti-bribery laws for allegedly infringing corporate free speech.
The greatest danger of Citizens United, however, may lie in state courts. 
The Atlantic has a series on the disastrous effect it is already having on elected judiciaries. More here and here.  
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DC's senior district judge, Royce Lamberth, eventually sided with the Guantánamo Bar on maintaining access to their clients, but it hasn't all gone the lawyers' way: they're now reduced by Pentagon rules to 25 hours a week with their clients. 
Under George Bush they got 63 hours a week at Guantánamo. 
Perhaps more about the Pentagon's protocol for detainee lawyers will be disclosed in WikiLeak's latest release of prison camp policy documents.
In a separate revelation, the chief of the CIA's infamous world-wide abduction and torture program, sorry, "Rendition, Detention and Interrogation Program", has been identified as one Thomas Donahue Fletcher.  Remember that name.
The leaker, former CIA operative John Kiriakou, has pleaded guilty to a violation of theIntelligence Identities Protection Act.  
He'll serve 30 months in prison, but the more serious Espionage Act charges will be dismissed.  
It was the first successful IIPA prosecution in 27 years.
As fellow whistleblower Jesselyn Radack remarked:
"Kiriakou will become the only CIA agent connected with torture to go to jail, and he's the one who refused to commit it and condemned it publicly. Meanwhile, the people who ordered the torture, the lawyers who justified it, the torturers themselves, and the people who destroyed the videotapes of it are all ... free and unaccountable." 
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GUANTÁNAMO prosecutors have backed off from their claim that all conversations of commission defendants are presumptively classified: now it's only their "observations and experiences". 
"Each of the accused is in the unique position of having had access to classified intelligence sources and methods. The government ... must protect that classified information."
As Opinion Juris wryly noted, the accused would have happily avoided the treatment they observed and experienced. 
"Unique access," indeed.