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 11th 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 4th 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.
* * *
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 7th 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 2nd Circuit has ruled that prospective police can be refused employment if their IQs are too high. Really.
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