Monday, March 11, 2013

From Roger Fitch and our Friends down under at Justinian

Washington notebook

Gongs for drone crews ... Military detention for civilians ... Australia listed among the countries that collaborated with the CIA's "detention, rendition and interrogation" program ... Court vacancies at crisis point ... NRA lobbying on judicial appointments ... Clarence Thomas speaks ... Roger Fitch - Our Man in Washington  
Drone pilots: all set for Distinguished Warfare Medals
"Sometimes I think it should be a rule of war that you have to see somebody up close and get to know him before you can shoot him."
Colonel Potter (M.A.S.H.) 
COLONEL Potter's observation applies in spades to the armed US drones terrifying Afghans and piloted by joystick jockeys in Nevada who hardly know their oft-innocent quarry. 
The Pentagon has nevertheless figured out a way to appropriately recognise its remote assassins, with the new, oxymoronic, Distinguished Warfare Medal. 
It's for desk-bound flight crews of "targeted kills", and meritorious hacking, too.
CIA teams carrying out similar long-distance work from Virginia must, sadly, remain unknown.
Plausibly, these gruesome video gamers could get Purple Hearts for "RSI at the joystick".
They may also need help for the stress they endure in executing people ... sorry, policy.
Unfortunately, a federal judge has ruled that the "legal opinions" authorising drone killingscan stay secret.
Mr Obama's legally-trained accomplices at "Main Justice" must be relieved.  
More here.
Some drone enthusiasts are clamouring for a special court to rubber-stamp "kill lists". Morehere.
Gabor Rona and Steve Vladeck have responded to the notion of a "drone court" to approve "targeted killings."
The controversy, which is now holding-up the confirmation of John Brennan as CIA director, has been fuelled by a leaked administration White Paper that offers a confused mélange of "legal" justifications for the killings.  
More here and here
Disappointingly, the terror-hysterics at Lawfare posted a repellent paean to drone killings penned by a professor at a right-leaning law school.  
The author even provided a light-hearted mock-up of a "baseball card" for assassination nominees. 
*   *   *
IN an important case last year, the journalist Chris Hedges and others (Noam Chomsky, Daniel Ellsberg) claimed that the military detention of civilians allowed by last year'sNational Defence Appropriations Act endangered the lawful activities of civilians, including the plaintiff dissidents, journalists and lawyers.  
In Hedges v Obama, the Obama-appointed NY federal judge Katherine Forrest departed from script and found these detention provisions unconstitutional as applied to the plaintiffs.  
The government has appealed in the 2nd Circuit, andLawfare editor Ben Wittes has a link to the appelleeamicus briefs.
Though just a journo himself, the detention enthusiast Wittes views the briefs as "a lot of red meat for NDAA-haters from that special libertarian land where Left and Right meet ... I disagree with all of them".   
A brief more to Wittes' taste may be found here.  
Judging from the Supreme Court's new standing-based decision in a surveillance case,Clapper v Amnesty International  (opinion here), the Hedges  case is doomed.  
More here and here.
A new book fills in some details on the domestic spying program, now easier thanks to theClapper case . 
*   *   *
THE Senate's recent report on the CIA's "Rendition, Detention and Interrogation" program is secret and may never see the light of day (more here and here).
The Open Society, however, has an RDI report you can read now.  
Thanks to its handling of Mamdouh Habib, Australia makes the list of 54 countries who collaborated with the RDI.  
*   *   *
VACANCIES on the US federal courts are now at a crisis level with some having continued for as long as nine years.  Details here
Mr Obama has renominated 33 judges blocked by Republicans in the last session of Congress.
Naturally, the National Rifle Association plans to lobby against nominees who believe in enforcing gun laws. 
*   *   *
US Supreme Court: on the agenda - foreign treaties, gene patents and voting rights
IN the courts, an all-Republican DC Circuit panel has predictably found that Mr Obama's recess appointments to the National Labor Relations Board were invalid, despite the Chief Justice having suggested the president could end a Republican obstruction of confirmations by just such appointments. 
There's a new 6th Circuit decision on the liability of rating agencies for their role in the financial meltdown, and it comes up opposite from the recent watershed Aussie case.
A case in the Supreme Court will consider foreign treaties giving the US power to legislate domestically, not unlike Australia's Franklin Dams case. 
Another Supreme Court case contrasts US and Australian judicial treatment of human gene patentability and involves the same corporation, Myriad Genetics.  
One of the most important cases in the Supreme Court this term concerns the Voting Rights Act. More here
Things look grim for voters, but promising for Republican politicians.  UC-Irvine Law School Dean Erwin Chemerinsky has the legal background
On March 26-27, the Court will hear two "gay" cases, the overturned California constitutional amendment banning gay marriage and the restrictive federal Defence of Marriage Act.  
More here and here
Some late DOMA  briefs are here
The court has five options for dealing with the California case; the administration brief supports a limited right to gay marriage that could result in 17 states with gay marriage. 
In another case, the question of actual innocence as an exception to habeas limitations is before the court. 
There are also two cases of fatal missed deadlines
And finally, Justice Clarence Thomas has spoken at oral argument for the first time in seven years, but it was only an aside. 
*   *   *
THERE have been interesting new developments - some encouraging, some not - in the South.  
On the one hand, there was the unseemly haste with which the state of Georgia sought to execute two men before their meds - i.e. the state's batch of the scarce execution juice pentobarbital - reached the use-by date, March 1st.  
Georgia only succeeded in killing one of the men
And then there's Texas.
It's a state with a 55 percent majority-minority, yet - thanks to gerrymanders - it remains stuck in a white Tea-Party time-warp, part of the vice-like 18-year Republican grip on the state government.  
Even so, the state police force, the Department of Public Safety, has announced an important innovation: DPS helicopters will no longer be engaged in shooting at undocumented immigrants. 
They must have drones on the drawing-board.