ROGER FITCH ESQ • THURSDAY, JANUARY 12, 2012
Milestones and millstones ... Guantánamo's tenth birthday, as Bill of Rights turns 220 ... National Defence Authorisation Act allows for exciting possibilities - including military detention of US civilians ... The new Reichstag Fire Decree ... Latest from US Supremes ... Habeas - British courts step-in where DC Circuit fears to tread
The US reached a milestone on December 15: 220 years since the adoption of its famous Bill of Rights.
It's older than the French Droits de l'Homme of 1793.
Nevertheless, for reasons best left to historians, on "Bill of Rights Day" Congress suspended large chunks of the 10 amendments (and effectively, habeas corpus) in theNational Defence Authorisation Act .
As expected, Mr Obama abandoned his shammed concerns about the NDAA, and approved a scheme for the military detention of civilians, not unlike the practices of foreign dictatorships.
January 11 marked a less auspicious milestone: 10 years of the infamous Guantánamo internment camp.
At The Nation, Georgetown Law Prof David Cole reviewed the sordid history of Guantánamo, while Lakhdar Boumediene, the man whose US Supreme Court case established an offshore constitutional right to habeas, sounded off in the New York Times.
Thanks to the NDAA, the Gitmo dungeons will be there for years to come, perhaps for use by disloyal or disaffected Americans.
Comparisons are being made to President von Hindenburg's "Reichstag Fire Decree" of March 1933.
Henceforth, we will have "a bill of rights for some," but not others.
It's what George Bush only dreamed of achieving, despite his efforts in the Padilla and al-Marri cases. Now, the authoritarian instinct is bipartisan. The complete interdiction ofhabeas is near.
The only constitutional grounds for suspension of habeas are rebellion and invasion. Ironically, the US is marking 200 years since the last war in which a foreign invasion occurred, the War of 1812 with Britain.
As Mariner noted, Obama started it all with a March 2009 brief in the Guantánamo Bay Cases, asserting the same expansive view of indefinite military detention claimed by George Bush.
Sadly, in justifying a war paradigm everywhere, not just battle zones, Obama's brief cited the words used by the Bush loyalist Judge Richard Leon, in the district court decision later reversed in Boumediene.
Naturally, Lawfare isn't bothered, but the NDAA adds a new layer of junk law designed to displace valid international treaties that bind the US (eg, Geneva Conventions), as well as domestic laws like the Posse Comitatus Act (1878), which restricts the military at home.
Armed with the NDAA, Congress will try to block Obama's plan (part of a peace initiative) to release Taliban military officials being held hostage - sorry, as "unprivileged belligerents" - at Guantánamo.
Obama's dismal civil liberties record is now considered worse than that of George Bush.
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The Supreme Court's latest cert grants have been announced.
Already docketed is the civil suit of a man wrongly arrested for daring to touch Richard Cheney.
Meanwhile, Emily Bazelon reports on the Supreme Court's most vindictive decision this term.
At The Legal Pulse, the blog of the Republican-front Washington Legal Foundation, director Richard Samp is excited about the Supreme Court review of corporate responsibility under the Alien Tort Statute.
Somewhat surprisingly, the Obama administration has filed anamicus brief in the Kiobel ATS case supporting corporate liability, perhaps because the defendant (Shell) is Anglo-Dutch.
Another amicus in Kiobel was filed by a group of Nuremberg scholars, including Melbourne Law Prof Kevin Jon Heller.
The freelance gadfly Bill Blum is worried about three casesbefore the Supreme Court this term.
One of them is the Texas redistricting case. It's threatening to become another Bush v Gore.
Other "political questions" are likely to be on the Supreme Court's docket.
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The DC Circuit may have turned its back on habeas (see previous post) but the British human rights law firm Reprieve has won a great habeas victory in the English Court of Appeals, in a case involving a US-held detainee.
In nearly-identical Bagram detention cases, the UK court granted habeas to secure the release of a prisoner rendered to the prison from outside the Afghan theatre of war, a man who could easily have been one of the petitioners who won in DC district court but lost on appeal.
British forces in Iraq had handed Yunus Rahmatullah over to the US, who shipped him to Afghanistan.
The UK government has now demanded that the Americans release Rahmatullah.
As Harper's Scott Horton noted, the UK court implicitly rejected an opinion by Jack Goldsmith, then head of DoJ's Office of Legal Counsel and now teaching at Harvard and blogging at Lawfare.
Goldsmith had opined that "operatives of international terrorist organizations" were not "protected persons" for purposes of Article 49 of the Fourth Geneva Convention, which provides that ...
"individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of motive."
It would be nice if Article 49 provided some protections to the Gitmo deportees, but it only applies to "occupied territory", a status which was recognised in Iraq but not apparently in Afghanistan.
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Amnesty International's new report Guantánamo: A Decade Of Damage To Human Rights lists "10 Anti-Human Rights Messages Guantánamo Still Sends".
One of the messages is that victims of human rights violations can be left without a remedy, and that's exactly what happened to Abdul Rahim Al-Janko.
DC judge and Republican stalwart Richard Leon recently ruledthat Al-Janko, though innocent and found not to be an "enemy combatant" - by Leon himself - has no civil remedy for his years of lawless detention.
"War, by its very nature, victimizes many of those caught in its wake. Innocent civilians are invariably killed, and sometimes even mistakenly imprisoned. Our legal system was never designed to provide a remedy in our courts for these inevitable tragedies."
How very convenient.