From Our Friends Down Under At Justinian

Law in the Age of Terror

ROGER FITCH ESQ • MONDAY, SEPTEMBER 29, 2014

Alien Tort law gives a leg-up to Abu Ghraib victims ... Preview of new Supreme Court term ... DoJ's misuse of state secrets privilege ... US ranking of billionaires according to their political influence ... Latest report on judicial corruption ... Roger Fitch, Our Man in Washington, reports 

Alien Tort cases reinstated by 4th Circuit

HURRAH, the Alien Tort Statute lives again!  

This 1789 Act of the young American republic was used to hold US-based corporations to account for their foreign depredations, until the Supreme Court in its 2012 Kiobel decision ruled that overseas conduct must "touch and concern" the US with "sufficient force" to overcome a presumption against extraterritorial application of the statute.

As recently as July, the reliably-conservative 11^th Circuit ruled, in the Chiquita case, that there was no ATS jurisdiction over a US corporation for its admitted misdeeds in Columbia.

Now, following Mr Obama's judicial appointments, the formerly conservative 4^th Circuit has reinstated, en banc, ATS cases brought by former Abu Ghraib prisoners against the mercenary torturers, sorry, contract interrogators, hired by the US to provide "services" at the infamous Iraqi jail.  

Here's the latest twist in Al Shimari v CACI.  

It's hoped that the 4th Circuit's change of heart will spread across the Potomac to the DC Circuit, where there's been a request for en banc reconsideration of the civil case of Allaithi v Rumsfeld.

That case notoriously found that military wrongdoers acted within the scope of their employment, and anyway, Guantánamo internees weren't "persons" under the Religious Freedom Restoration Act.

Another DC case where en banc will be sought - now that Obama's four appointments have broken a right-wing Republican stranglehold on the circuit - is the Guantánamo counsel access case, Hatim.  

Yet there's a problem: the panel decision being appealed included a Democrat, Chief Judge Merrick Garland. 

Steve Vladeck has more.  

After his en banc partial win, the Guantanamero Ali Hamza Al-Bahlul is making another attempt before a DC Circuit panel to have his "conspiracy" conviction(s) thrown out.  

Here's the supporting amicus brief of the National Institute of Military Justice. Steve Vladeck comments.  

David Glazier also has a brief. Others are here, and none of them support the government.  

*   *   *

Georgetown Law has a preview of the Supreme Court term starting in October.

The court will be asked to consider a serious anomaly in federal court sentencing where, following conviction, a judge can impose "terrorist enhancements" in light of alleged conduct on which the jury acquitted. 

Tarek Mehanna: 17 years for translating terrorist material

The court may hear the contentious case of Tarek Mehanna, given 17 years jail, mainly for translating terrorist articles. Before the Age of Terror, the First Amendment protected free speech, no matter how repellent.

One of the most notorious foreign detention cases of the Bush-Obama era, Al Maqaleh, was poised for Supreme Court review, but as often happens, the matter may have been resolved through a familiar technique: releasing prisoners just as they file their petition forcertiorari.

The ploy fooled no one.  

The Washington Post and Just Security have more. 

Al Maqaleh concerned non-Afghan detainees held in Bagram prison who, despite their initial success in John Bates' district court, were denied habeas by the DC Circuit. 

Joining the released Yemeni petitioners Fadi Al Maqaleh and Amin Al Bakri were two Pakistanis, Hamidullah Khan (already released by the US last November) and Amanatullah Ali.  

Amanatullah was one of two Pakistanis (the other, Yunus Rahmatullah, was released by the US in May of this year) who were removed by the US from occupied Iraq to Afghanistan, conduct a UK court assumed was a war crime under the Geneva Conventions. 

The argument of the petitioners has been simple: the Pentagon moved them to a war zone, Afghanistan, with the effect and perhaps purpose of denying them habeas, and "theMilitary Commissions Act of 2006 ... violates the Suspension Clause in its application to citizens of countries other than the United States or Afghanistan whom the Executive captured outside of either country, far from any recognized battlefield".

Rahmatullah's civil suit for damages is underway in the UK, more here. 

More Pakistanis have now been released, perhaps including Amanatullah.

*   *   *

Dean: knows a lot about government abuse of state secrets privilege

The Justice Department recently claimed that judges couldn't look at documents the government claims are subject to the "state secrets" privilege. Such review would be "inappropriate". The judge disagreed. John Dean comments on the increased misuse of the privilege. 

The Bush-Obama DoJ has meanwhile had a win in its punishment agenda, with a federal district court reluctantly extending the prison term of the long-suffering, Pentagon-tortured José Padilla.  

An outraged Andy Worthington has more. 

Steve Vladeck has a timely reflection on the tenth anniversary of the Supreme Court's decisions in Padilla, Hamdi and Rasul, David Hicks' case.   

As for Hicks, his fresh appeal to the Pentagon's drumhead Court of Military Commission Review has been renewed in light of July's en banc DC Circuit ruling (in Al-Bahlul) that Material Support for Terrorism was not in fact a war crime at the time he (and all the others) were convicted of it.  

More here and here.

*   *   *

Rupert is number six

The Brookings Institution's resident bush-lawyer and terror-savant, Ben Wittes, is cock-a-hoop that the DoJ found an internal memorandum from 1944 alluding to the possibleexistence of Justice's recently-minted common law of war, as a basis for America's unique"conspiracy" war crime.

Curiously, Brookings is one of three organisations profiled by the NY Times in a report on "think tank" influence-peddling on behalf of foreign governments.  

Without irony, Brookings just published its own research into the ranking of US billionaires based on the amount of political influence they exert. 

*   *   *

A law prohibiting same-sex marriage has been upheld by a New Orleans federal district court, apparently the first, since the Supreme Court handed down US v Windsor in 2013. A state judge in Louisiana promptly ruled the other way.  

Scotusblog has more on the marriage equality cases.    

*   *   *

The latest report on judicial corruption, or rather, election spending, is out now at the Justice at Stake website.

In one state - Wisconsin - judicial behaviour has crossed an alarming threshold, with both an appointed (federal) and elected (state) judge conspicuously intervening to protect the controversial Republican governor from an election finance investigation. 

The 7^th Circuit reined in the federal judge, but the state supreme court remains a majorobstacle to election irregularity inquiries. 

*   *   *

Smart coppers not permitted

In recent years, the Supreme Court has had to deal with states determined to boost the IQ of death row inmates so they can legally execute them.  

There are occasions, however, when authorities prefer a lower IQ.  

Confirming something Fitch always suspected, the 2^nd Circuit has ruled that prospective police can be refused employment if their IQs are too high. Really.  

From Roger Fitch and our Friends down under at Justinian.

End of term

Wednesday, July 2, 2014
Justinian in Guantanamo, Law of war, Military Commissions, Roger Fitch Esq, Same-sex marriage, US Supreme Court

Supreme Court lets God into the Affordable Care Act ... And strikes down certain compulsory union dues ... At last - a Guantánamo detainee charged with a genuine war crime ... Obama's Taliban prisoner swap ... Whatever you do, don't shoot at an American in a war ... From Our Man in Washington, Roger Fitch 

THE Supreme Court ended its term with a bomb.  

In Burrell v Hobby Lobby, a new class of God-fearing corporations has been allowed to evade – on religious grounds – the contraception coverage that the Affordable Care Act requires in employee health insurance. 

This new-found piety in closely-held corporations is based on the First Amendment's personal religious freedom, but the all-Catholic-male majority put its faith in the Religious Freedom Restoration Act. 

It's the same RFRA whose protections were denied to Muslims in Guantánamo by the DC Circuit in Rasul v Myers on the basis that Gitmo detainees were not persons in the meaning of the Act (see Fitch of January 22, 2008). 

Thus, some corporations now have personal religious freedoms, while other, flesh-and-blood persons don't.  

Scotusblog has more on Hobby Lobby here. 

The end of term also brought bad news for unions.

In Harris v Quinn, the court struck down certain compulsory union dues. 

NLRB v Noel Canning, another big decision in the term's final weeks, concerned the presidential power to make recess appointments; the president lost, but in defining "recess", the court rejected the partisan DC Circuit's "originalist" reasoning.

Warrants will be required for mobile phone searches.     

The Court refused to consider the journalist privilege case of NY Times reporter James Risen.

In Hall v Florida, Justice Anthony Kennedy did the right thing on mental disability death penalty cases.  

It's been a year since the Supreme Court decided the marriage equality case US v Windsor, and all 50 states have now had challenges filed to laws that restrict marriage to opposite sex partners.  None of the appeals (by states, thus far) reached the Supreme Court this term.

Here's a review of the federal appeals stage; only the conservative 5^th Circuit (Texas, Louisiana, Mississippi) seems likely to sustain same-sex restrictions.

Marshall: led the same-sex marriage tide on state appeal courts

As the tally of jurisdictions allowing same-sex marriages stood at 19 states, DC, and several Indian Nations, the Washington Post interviewed Margaret H. Marshall, former Chief Justice of the Massachusetts Supreme Judicial Court.  

Marshall presided when the SJC - the oldest appellate court in the Americas – became the first in the US to recognise such marriages.  As in its 1783 abolition of slavery, the court made its 2003 decision based on a straightforward reading of the Massachusetts constitution.

The lower court consensus on marriage equality may influence the Supreme Court's jurisprudence on the subject. Perhaps the cases will not, in the end, run afoul of the Supreme Court and the goals of its "movement conservative" majority.

Nothing is certain, however.  Long-time Supreme Court observer Linda Greenhouse has reluctantly concluded that there is now an unmistakable ideological agenda among the Republican justices, one that includes surreptitiously dropping unnecessary dicta in current cases for future, more sinister, use.  

An example of recent majority law-making – extinguishing class actions through compulsory arbitration - has been written up in the current Washington Monthly.

It seemed the right time for revelations that the court retrospectively alters opinions.  John Dean comments. 

*   *   *

IN the latest chapter of America's long-running experiment in improvised justice, the Iraqi Abd al-Hadi has been arraigned at a Guantánamo military commission, charged with genuine war crimes. 

It's a first, aside from some previous charges that, sadly, didn't even occur during war (e.g. al-Nashiri, below).  The Miami Herald has more. 

Naturally, the Pentagon threw in a fake charge for good measure, with pages of "overt acts" unrelated to the Afghan war and/or occurring as early as 1996, to support the invalid charge of conspiracy, recently dropped from the other commission prosecutions.

In some irrelevant allegations the Pentagon seemed about to extend the unique battlefield impunity that US soldiers enjoy to Canadians and other allies, but on closer inspection, all but one act injuring an ally seems to have involved the commission of a valid, recognised, war crime.  

It's complicated, but for now, only US soldiers can shoot at, but not be shot by, disfavoured belligerents.     

Nevertheless, the al-Hadi case represents real progress for the commissions, after years of claiming as war crimes, things that were ordinary acts of wartime hostilities or that occurred outside any armed conflict.

*    *   *

Bergdahl: Taliban prisoner swap

AN exchange of US and Taliban prisoners has caused controversy in the States.  

Mr Obama, it's true, failed to give Congress 30 days' notice, but the exchange itself seems unremarkable.  

Sgt Bowe Bergdahl, a US soldier held unlawfully by the Taliban for five years, was released in exchange for five Taliban prisoners including high military officials who were unlawfully denied prisoner of war status by the US for 12 years at Guantánamo.  

It seems odd the administration has to defend its release of Taliban prisoners – real military prisoners, unlike most at Gitmo, and men, moreover, imprisoned for years in conditions violating the Geneva Conventions - in an exchange for a US soldier held captive in tough conditions by the Taliban.

Nevertheless, there were claims that the Taliban soldiers were "too dangerous" to be released, and much was made of the possibility that Sgt Bergdahl deserted.

House Republicans, unversed in the Geneva Conventions, were shocked, and with media help, described the Taliban generals and government officials as "terrorists", notwithstanding their capture in a war with the US in which they were lawful belligerents.  

It's come to this: anyone - military or civilian - opposing US soldiers is now a terrorist.  

Yet as law prof David Glazier points out,  "the law of war does not proscribe the routine killing of combatants, even by those with no right to participate in hostilities" (see post of September 13, 2010). 

To be sure, two of the prisoners may have committed acts of terrorism, indeed war crimes - before the US arrived in Afghanistan - but in the context of US involvement, the exchanged Taliban are simply prisoners from the US-Afghan war.  

Martins: chief Guantánamo prosecutor

In fact, the chief prosecutor at Guantánamo, Brig General Mark Martins, implied they couldn't face prosecution in a US military commission because their alleged war crimes occurred in 1998, before the US was involved, and the general suggested they might be prosecuted in other fora, e.g. international tribunals. 

Even so, Gen Martins is continuing his death penalty prosecution against Abd al-Rahim al-Nashiri for events occurring in 2000, before the US was at war. It's a classic case of Pentagon cognitive dissonance.

A Murdoch presenter thought execution should be considered for Sgt Bergdahl, but the soldier needn't worry:  only one American deserter has been executed since the Civil War, and desertion may not be a capital offence now. 

Whatever. With cries of "Benghazi and Bergdahl," the Republicans are ginning up their sham scandal machine for the 2014 election.   

It always works a treat with hapless Democrats and a confused electorate, and this year the Republicans will be aided by the deep pockets of the Koch Brothers (net worth: $100 billion) and, by some claims, 300 other billionaires.

It's all part of the rich tapestry of American political life, freed by the Supreme Court from onerous election finance laws.