Saturday, May 11, 2013

From Roger Fitch and our Friends Down Under at Justinian

US soldiers are special: they can shoot, but they can't be shot

US government has its very own radical Islam website ... Judge overrules some of the FBI's denial of rights to Boston bombing suspect ... Canadian to appeal Guantánamo conviction ... Guilty plea to invalid charges ... Pentagon citing Civil War precedents in Bradley Manning stitch-up ... From Roger Fitch, Our Man in Washington 
Boston marathon bombings: "public safety exception" for accused
THE amicus intervention in Kiobel v Royal Dutch Petroleum by the UK and Dutch governments has paid off handsomely, with the Supreme Court ruling against the suit by Nigerians resident in the US who allege human rights violations by Shell in their native country.  
More here on this keenly-awaited decision, including this symposium at Opinio Juris and aNY Times comment.   
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THE FBI is having difficulty retrieving private data from the computers of recalcitrant tech companies.
Google, for one, is fighting warrantless "national security letters", and the government is cooking up legislation to punish them for resisting court orders. 
The FBI is actually quite adept with computers. A recent arrest in Chicago revealed that the agency proactively maintains - for the benefit of would-be bombers having trouble finding such sites - the US government's very own radical Islamic website, calculated to incite acts of violence among those still undecided.
Some US district judges are showing backbone in dealing with such devious FBI tactics.
A Houston judge, for instance, declined the agency's audacious bid to hack computers andinstall Trojan viruses on them just to gather incriminating evidence from the unsuspecting. 
In Boston, meanwhile, the FBI seized on the rarely-invoked "public safety exception" to the requirement of informing a defendant of his right to remain silent. 
In the Boston Marathon bombing, the FBI didn't warn the defendant, and questioned him as he lay wounded in a hospital bed.  
Then a federal judge had the temerity to intervene sua sponte and provide constitutional protections to the man charged in the bombings.  
The FBI had already used the "terror" opportunity to deny counsel, not something that's included in the Quarles public safety exception to Miranda.   
More here and here
Thanks to federal charges against the alleged Boston bomber for using "weapons of mass destruction," he could face a death sentence; unlike Massachusetts law, some federal crimes carry the death penalty.
No doubt we will also be hearing about the (shudder) Antiterrorism and Effective Death Penalty Act.  
A recent decision of the conservative 11th circuit highlights the chilling and perverse effects of the AEDPA in stifling even meritorious death penalty appeals.  
More here
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IN a surprising development, the DC Circuit has agreed to hear the Al Bahlul military commission appeal en banc even though the votes to overturn the earlier DC panel's decision don't seem to be there.  
Scotusblog and Lawfare have more.   
It's not clear whether the court will consider Al-Bahlul's First Amendment and Equal Protection claims
Relying on the Al Bahlul precedent, Canadian Omar Khadr plans to appeal his Guantánamo convictions in the US, testing whether a guilty plea can prevent a subsequent legal challenge where the underlying charges are found invalid. 
Since his release from Gitmo pursuant to a plea deal, Khadr has been confined in a maximum security Canadian prison. In addition to his meritless MST and conspiracy convictions, he has the distinction of being perhaps the first "combatant" ever convicted of a "war crime" of "murder" for killing a uniformed soldier in lawful combat.  
To be fair, the dead soldier was an American; and that, of course, changes everything. US soldiers are special:  they can shoot, but they can't be shot.
David Hicks' original Aussie lawyer, Stephen Kenny, will also be lodging an appeal in the US, based on the Hamdan and Al-Bahlul decisions. 
Slate, meanwhile, has published excerpts from the memoirs of a current detainee at Gitmo; it's worth reading for the torture revelations.   
In April, yet another authoritative report on US torture was published, this one by a non-partisan panel chaired by a Republican, who was an official in Bush's Department of Homeland Security. 
The NY Times has more on the Constitution Project's 600-page report.  
Andrew Sullivan faulted the Times' previous torture coverage, while the Atlantic'sAndrew Cohen got the reaction of one of the torture victims, Omar Deghayes.
Gratifyingly, one high government official has now gone to jail for participating in the CIA's grotesquely illegal torture-abduction program: an Italian intelligence chief.  
There's still no danger of being jailed in the US unless, like John Kiriakou, it's for exposingCIA torture
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Caitlin Halligan: top lawyer for DC Circuit blocked by Republicans, again
OBAMA'S highly qualified candidate for the DC Circuit, Caitlin Halligan, was blocked once again by Senate Republicans and has withdrawn.
She was one of 33 judges renominated in this session of Congress.
Now the DC Circuit is four judges short of its full complement of 11 judges (four additional judges have taken senior status).
With the prospect that Obama could add four Democrats to the present division among active judges of four Republicans and three Democrats, the Republicans want to reduce the number of judges to eight, and who can blame them for trying?  
More here.       
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ALWAYS on the cutting edge of law, the Pentagon is citing US Civil War precedents to stitch-up Bradley Manning, despite the scorn poured on its newly–invented "US common law of war" in recent military commission rulings of the DC circuit. 
The US Court of Appeals for the Armed Forces has meanwhile handed the government a 3-2 decision on jurisdictional grounds that allows the Manning trial judge to withhold court filings and orders, in a case brought by leading US media organisations.  
The three majority judges were all appointed under the Bush administration, and the dissenters were appointed in Democrat administrations. 
Steve Vladeck has more
Because of Pentagon obstruction, a volunteer is having to amass the record of Manning's trialfor other journalists.
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Sandra Day O'Connor with her sponsor: second thoughts about Bush v Gore
THE US presently has the most conservative supreme court in perhaps 80 years, one that effectively perpetuated itself on December 12, 2000 by installing a conservative Republican president guaranteed to appoint partisan "movement conservatives."
Subsequently, Chief Justice William Rehnquist died, Sandra Day O'Connor resigned, and Mr Bush duly appointed John Roberts and Sam Alito, hardened Republican operatives and Reagan men.
Now, one of the surviving Republicans who appointed Bush president is having second thoughts. 
In light of what followed, Sandra Day O'Connor now wonders if it was a good idea for the court to take Bush v Gore.  
Slate's Emily Bazelon reflects on what might have been, while the Times' Linda Greenhouse gives some historical perspective on judicial regret