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.