From our Friends Down Under at Justinian.....

US rewrites the Geneva Conventions

ROGER FITCH ESQ • THURSDAY, DECEMBER 17, 2015

US Supreme Court's dreadful legacy ... Fifteenth anniversary of Bush v Gore - the decision that "changed everything" ... The environmental hazards of international "trade" agreements ... Guantánamo prisoner held for 13 years in a case of mistaken identity ... Roger Fitch, Our Man in Washington 

ON December 12, law-abiding people sadly reflected on the fifteenth anniversary of Bush v Gore, one of the most infamous decisions in US supreme court history. 

Forget 9/11. It was 12/12/00 that "changed everything": in the aftermath there would be ubiquitous, never-ending wars; at home the US would be left with a terror-hysteric republic and a corporate-aligned high court that threatens the integrity of elections and the continued vitality of the Democrat Party.  

While Bush v Gore may have been an unconstitutional coup d'etat, it left intact other aspects of the first republic's constitution, e.g. a Bill of Rights, albeit one receiving new glosses favoured by the court's triumphant partisan majority.  

Among these innovations were the personal human rights granted to soulless corporations, e.g. unlimited "money speech" in elections and an astonishing corporatefreedom of religion.

Ironically, the private company whose freedom of religion was recognised in Burwell v Hobby Lobby Stores (2014) now stands accused of trading in stolen antiquities for its Museum of the Bible. 

Perhaps they aren't such good Christians after all.

Meanwhile, the results of the supreme court's lamentable corporate money-speech decision,Citizens United (2010), are already becoming apparent in state judicial elections.

Here's David Cole's review of a new book on these First Amendment developments, and aNew Republic report on the corporate takeover of the court underlying them. 

The Second Amendment right to bear arms - another provision of the Bill of Rights under Republican redesign, continues to fester, in the aftermath of the court's ill-consideredHeller decision.

However, a seventh circuit appeal that threatened to exponentially extend Heller fizzledwhen the court denied certiorari. 

Clarence Thomas seemed upset that a citizen's God-given right to assault weapons might be regulated.  

More here on the judicial knockback of America's most noxious radical insurgency, the National Rifle Association.

There's still plenty of gun mischief in the provinces.

While the second amendment has expanded beyond all constitutional logic, the fourth amendment - freedom from warrantless searches and seizures - is sinking like a stone, particularly when courts confront alleged terrorists, or the FBI is involved. 

*   *   *

The climate conference in Paris has been gazumped by the Trade Pacific Partnership and other trade deals

There has been much mutual congratulation on the outcome of the Climate Change Conference in Paris, but only silence on the three international "trade" agreements now under consideration and their likely effect on environmental initiatives such as phasing out fossil fuels and introducing new energy technologies.  

Each of these agreements attempts to marginalise and exclude national and local legislation and regulation deemed inimical to the profit expectations of multinational corporations and contains the extrajudicial Investor State Dispute Settlement device for enforcing, inter alia, environmental poison pills.

The recently agreed Trans-Pacific Partnership clearly curtails the ability of governments to respond to climate change, while creating its own trade barriers. 

According to the Sierra Club, the TPP's Environment Chapter actually rolls backcommitments in the free trade agreements the US has already entered.

The other two international compacts for mutual-assured corporate plunder still under negotiation - TTIP and TISA - are quietly advancing, under a cover of secrecy and the guidance of unelected, corporate-friendly officials in the colluding countries.  

TTIP (Transatlantic Trade and Investment Partnership) has a secret protocol that foreshadows the prevention of meaningful regulation of the environment, more here. 

TISA (Trade in International Services Agreement), which includes Australia, has a draft "Annex on Environmental Services" described by Friends of the Earth as "an environmental hazard".

*   *   *

Gen. Tommy Franks, prevented by the Pentagon from implementing Article 5 Geneva Convention hearings for POWs

The Pentagon has admitted wrongly holding a Guantánamo prisoner for 13 years in a case of mistaken identity. 

It seems Mustafa al-Shamiri was not "al-Qaida" after all. Even so, he was deemed one of those hapless "low-level fighters" or "foot soldiers", as the Pentagon and its faithful media stenographers categorise men who, in previous wars, were classified as combatants entitled to consideration as prisoners of war.

No journalists ever ask why men are being "cleared" for release who were never properly classified for detention in the first place, i.e. at the time of their apprehension, by following the requirements of the Third Geneva Convention and the US Uniform Code of Military Justice.

After the adoption of the Geneva Conventions in 1949, and until the war in Afghanistan, the US never failed to extend prisoner of war status hearings to opposing soldiers, even the Viet Cong.  

Before Afghanistan, the US never claimed that a country it was fighting had no government; indeed, in the years before 9/11, Taliban officials were welcomed and entertained in George Bush's home state, discussing pipelines and oil wells.

When the war broke out in Afghanistan, commanding General Tommy Franks began preparations for the treatment of prisoners of war and the conduct of the independent "Article 5" hearings required under GCIII and the UCMJ.  He was stopped by the Bush Pentagon.

The first Guantánamo commandant, Brig. Gen. Rick Baccus, had signs put-up around the camp explaining the prisoners' rights under the Geneva Conventions and was planning for the provision of the amenities allowed to prisoners of war by GCIII. He was summarily replaced by a commander who accorded no Geneva Conventions rights - not even the basic rights of Common Article Three. 

Still, no media proprietors inquired - in 2002 or afterwards - why prisoners from the Afghanistan war were different, why they were never recognised as soldiers of Afghanistan, why they were denied en masse their Article 5 hearings without which they were presumedto be prisoners of war.

In fact, the trial judge in the Hamidullin case (see previous post) did ruminate on the matter before deciding he could try the Taliban soldier Irek Hamidullin for opposing US soldiers in Afghanistan.  

Hamidullin has now been sentenced to life in prison plus 30 years for essentially nothing. No Americans were harmed.

According to one news report, the judge found Hamidullin "wasn't a lawful combatant because the Taliban and its affiliated groups lack a clearly defined command structure and don't adhere to the laws and customs of war".   

There is no such requirement, however, for government forces. Article 4 of GIII states: 

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

--- 

More here on a man who was held in irregular detention in Afghanistan for five years before being brought to the US for prosecution for the "crime" of opposing US invading forces.

From Roger Fitch and our friends down under at Justinian...

The Roberts court and other mishaps

ROGER FITCH ESQ • WEDNESDAY, OCTOBER 21, 2015

Ten turbulent years of the Roberts court ... Gitmo travesties ... Failure of "black site" victims to get remedies ... Stealing votes ... Roger Fitch, Our Man in Washington, reports 

THE supreme court is back in town, withtrouble on its mind. 

A frightening agenda awaits action by the Republican-activist majority.  

First, the court has to decide which 75 cases to hear, whittling the 8,000 petitions with its dreaded "long conference" and relists.

Politically-charged cases will be eagerly taken on by the most political supreme court ever.  

In one of its first decisions, the court gave Wall Street a free pass on insider trading.

An entire issue of the Nation sadly marks 10 years of the Roberts Court - more here.

In one of its first cases, the corporate-friendly 5-4 majority on the supreme court reviewed the resistance in California to forced arbitration in consumer litigation.  

The Federal Arbitration Act dates from 1925, but it wasn't until Southland Corp v Keatingin 1984 that a new Republican majority discovered that the FAA applied to states, their consumers and contracts.  

More here on the court's relentless extension of arbitration to employment contracts and class actions.  

In another case, the same majority will be deeply sympathetic to corporate class action defendants who have found a clever way to pick off plaintiffs one-by-one.

The court will also consider whether its 2012 decision striking down mandatory life imprisonment without parole for underage defendants should apply retrospectively to a further 2,100 prisoners. A heartless decision is a distinct possibility.

The Republicans on the court have already done plenty for the party, including its attacks on voting rights, but there are three big cases this term that could allow them to do even more to aid the states' determined suppression (read on) of potential Democrat votes.

*   *   *

Dostoyevsky: dumped in Kazakhstan, like others since

While talk has turned to closing Guantánamo, what has happened to internees who managed to get out, some through forced repatriation to strange countries?  

VICE News has an article on two Tunisians who were dumped last year in Kazakhstan, where the Czars used to send troublemakers like Dostoyevsky. The experience of the exiles has not been a happy one; unlike Fyodor, they don't speak Russian.  

There can be worse language problems. Newsweek has a story on a recently-released Gitmo prisoner who spent 13 years in wrongful US custody after a mistake in translation.

Al Jazeera meanwhile has a where-is-he-now video on another Gitmo travesty of justice, the internment of Asadallah Raman, a 10-year-old Afghan boy held for a year at Guantánamo with two other children. His plight was first reported in 2004 in the San Francisco Chronicle.

*   *   *

Rumsfeld: hanging out with Lithuanians

In other unfinished war-on-terror business, two men formerly imprisoned by the CIA, and the personal representative of a third that the CIA tortured to death, are suing the psychologists James Mitchell and Bruce Jessen in federal court in Washington State.  

The ACLU has a backgrounder.   

The two psychologists, whose company was paid $81 million for "services" before the CIA cancelled their contract, are also being sued for human experimentation. 

The claim - worth reading - was filed under the Alien Tort Statute. More here and here. 

The NYT wonders why the government can't allow victims a judicial remedy after years of shamefully blocking every claim.  

Blame lies with the supreme court for denying certiorari in case after case of prisoner torture and abuse; the appeal of Al Laithi v Rumsfeld (see previous post) should give the court another chance to redeem itself.     

Fortuitously, the Bureau of Investigative Reporting has a new study of the "black sites", torture dungeons set up by the CIA in Poland, Lithuania, Romania, Thailand, Afghanistan and Guantánamo. 

The report confirms that the CIA's Lithuanian torture facility near Vilnius was in use when - without irony - DefSec Donald Rumsfeld visited that city’s KGB museum, a former torture facility, in October 2005.

The 14 "high value detainees" ultimately sent to Guantánamo in 2006 were the remnants of a Gulag that contained at least 119, according to the Senate's Feinstein "Torture Report". Forty-two of these are now known to have been released, 30 are still in US custody, seven have died, and the fate of the others is unsettled.  None have received any compensation, apology or explanation.

Finally, in a perfectly legal (see August post) - albeit expensive and embarrassing - case of victor overkill, the mighty US made an example of a lowly Taliban combatant who had the temerity to attack American soldiers in Afghanistan, during a war.  

The result was the defendant's conviction of terrorism and attempted murder in a Virginia federal court.

More here on the symbolic show trial of Irek Hamidullin, who failed to harm anyone, and was the lone survivor among 30 Taliban. 

*   *   *

Voting Rights protest outside the Supreme Court in Washington DC

In 2013, the supreme court's five-man Republican majority judicially repealed  - in Shelby County v Holder - the provisions of the Voting Rights Act that required Justice Department supervision of states with shocking records of race-based vote suppression (see most recent Fitch).  

Since then it's been open slather for racist gerrymanders and vote suppression throughout the old Confederacy - and beyond.

The US elections don't begin until 2016, but for Republicans, it's never too early to steal votes.  

Now's the time to further entrench vote suppression, and there's been nothing quite like it since the end of Reconstruction (1877) and the withdrawal of federal troops from the South. 

Fitch previously reported the Republican trick of closing voter registration offices and places where one acquires the ever-more-complicated identification to vote. 

Alabama, which requires a photo driver's licence for voting, has simply closed the driver’s licence offices in most black-majority counties. More here. 

The Washington Post reveals another ruse for deflating Democrat votes - moving popular polling places to remote, less accessible locations. 

In North Carolina, black voters - 22 percent of the population - are likely to vote Democrat, but even those with transport will find themselves driving, on average, three times as far to vote as white voters.

In Kansas, the state's tea party politicos are attempting to require proof of citizenship, at odds with federal requirements. 

Texas has taken voter suppression to the next level - citizenship prevention - by stopping nationality-proving birth certificates from being issued to suspect newborns who might grow up Democrats. More here. A federal court declined to stay the policy pendente lite.

The only good news for Democrats - and democracy - has come from California, a solidly Democrat state: it now has a new law providing automatic voter rego.  

Henceforth potential voters will have to opt out rather than jump through hoops to opt in.  

Sounds almost Australian.

From Roger Fitch and our friends down under at Justinian....

American after-glow

ROGER FITCH ESQ • MONDAY, SEPTEMBER 7, 2015

Connecticut's Supreme Court kills the death penalty ... Locating the new Guantánamo ... Extrajudicial abduction ... Psychologists withdraw from the chamber of horrors ... John Robert CJ's abiding fear of the right to vote ... Roger Fitch, Our Man in Washington 

THE supreme court is quiet for the summer, as Justice Anthony Kennedy basks in the glow of his opinion recognising same-sex marriage. 

Kennedy's eloquence in Obergefell v Hodgeshas struck a chord with those considering marriage and it seems both gay and straight couples are already using his words for their nuptials.

A notorious decision of the DC Circuit meanwhile is being appealed to the supreme court.  

Allaithi v Rumsfeld held that tortured and abused Guantánamo prisoners have no cause of action for civil damages against former DefSec Rumsfeld because Rummy's mistreatment of them was within the scope of his employment. The case has been going on since 2006.

In Manhattan, the government lost its effort to suppress the "targeted killing" records of the three Americans vaporised by CIA drones. There's a timely article here on the life and death of one of them, Anwar Awlaki, "the first American to be hunted and killed by his own government since the Civil War".  

In an important state case, Connecticut's supreme court became the first to judicially abolish capital punishment.  

The decision concerned prisoners on death row and followed a prospective legislative repeal, but it's based on a finding the death penalty is "cruel and unusual punishment" under Connecticut's constitution.

The 9^th circuit is currently hearing an appeal from a California federal court decision thatstruck down that state's death penalty on different "cruel and unusual" grounds.

*   *   *

Obama: playing for the other side

President Obama seems to spend a lot of time playing for the other team and, when he departs office, his feeble advocacy of Democrat party policy will leave troubling figures in party statistics.

The Washington Post reports that under Obama, 85 of 98 partisan state legislative bodies have become more Republican. 

Some believe Mr Obama has seriously damaged the party brand with Bush-like proposals such as the administrative detention of "terrorist" prisoners in a stateside military jail.

The president is looking for US locations for extrajudicial indefinite detention when Guantánamo closes, and he's considering a US Navy brig near Charleston, SC, an army prison in Kansas, or even a new internment camp. 

Any US prison would establish an alarming precedent for future domestic military detention of men regarded as civilian terrorists, caught in spent wars or having only tenuous connections to combat.  

The South Carolina option doesn't sit well with South Carolina's Tea Party Republican governor Nikki Haley, and Charleston residents have reservations about the relocation to their city of the allegedly dangerous men. 

Haley (right): not sitting well

Charlestonians were strangely silent when the same navy brig was used to house and abuse three civilian "war-on-terror" prisoners, two of them US citizens, during the Bush years: Yaser Hamdi, José Padilla and Ali Saleh al-Marri.

The Guardian reports that only three of 116 remaining Gitmo internees were actually captured by US forces, including a Pakistani businessman seized in Thailand by the CIA.  

As it happens, there's a new book on the US forces usually responsible for such extrajudicial abductions, Joint Special Operations Command.  

One foreign citizen "rendered to justice" by Americans is contesting his manner of apprehension, but under settled US law, his chances don’t look good. 

For other, unapproved, kidnappings, there's a new Envoy for Hostage Affairs.  It's another ambiguously-titled State Department initiative, like War Crimes Rewards. 

*   *   *

The American Psychological Association has decided to do the right thing and stop assisting US government interrogations, following a damning independent investigation. TheGuardian and Just Security have more.  

Only one person voted against the change - Larry James, a former member of the Behavioural Science Consultation Team (BSCT), military psychologists who collaborated in the brutal interrogation of helpless prisoners at Abu Ghraib and Guantánamo. 

James: wants to keep psychologists on the interrogation teams

Many "Biscuits" have had ethics charges brought against them, and one of them took themilitary Fifth Amendment.  

Following cancellation of the CIA's contract with the firm of torture-architect psychologists James Mitchell and Bruce Jessen, West Coast civil rights figure Stephen Yagman has filed suit under the False Claims Act for recovery of the $81 million Mitchell-Jessen were paid for their (dirty) work.  

*   *   *

The Pentagon swiftly investigates claims of carcinogenic work conditions of Guantánamo personnel, especially lawyers, but it stonewalls urgent medical assistance for internees, e.g. the British resident Shaker Aamer and Yemeni, Tariq Ba Odah.

Ba Odah has been on hunger strike for more than eight years, weighs 34 kgs and is near death. 

In its response to Ba Odah's motion, the Department of Justice argued that releasing him would only encourage les autres, who might also undertake starving to death, just to get out of jail.  

As Marty Lederman notes, the government recognised but ignored the Geneva Conventions requirement that sick and dying prisoners be repatriated. 

According to a Times report, the State Department opposed the government stance.  

*   *   *

As US legislators scramble for cash for the 2016 Congressional cycle, 141 retired members of Congress are holding $46 million in excess cash from their last election. 

That's chickenfeed. The 2016 election cycle could cost as much as $10 billion, and thanks toCitizens United, 67 donors are dominating elections for the governance of 320 million people.  

The Washington Post is shocked. More here. 

By one recent count, there were 17 Republicans running for president, including one under indictment.  

*   *   *

Roberts CJ: not keen on voting rights for minorities

The conservative Fifth Circuit has ruled that the Republican-engineered voter photo-ID in Texas is a violation of the Voting Rights Act, and Texas is seeking en banc review. 

The circuit accepted that the voting restrictions were discriminatory, but overturned the lower court's findings of a discriminatory purpose, remanding for a fresh determination of legislative purpose, but leaving in force a stay of the lower court's injunction. 

Without injunctive relief, some 600,000 Texans will be prevented from voting in next year's elections, just as they were in last year's. 

The controversial Texas AG is setting up a supreme court appeal, giving Republican activists on that court another shot at killing the Voting Rights Act.

The Act is currently celebrating its 50^th anniversary, despite CJ Roberts' near-successful efforts to kill it in Shelby County v Holder, the astonishing 2013 decision in which the court's Republican majority struck down - as based on stale facts - an essential part of theVRA that had been overwhelmingly readopted in 2006 by a unanimous Senate and all but 33 members of the House.

A new biography of the Chief Justice tracks his decades-long antipathy to the VRA.

Alleged violations of the surviving portions of the Act face multiple court challenges, especially in Texas and North Carolina, as Republican-controlled states continue to place diabolical obstacles in the path of disadvantaged poor and minorities who vote Democrat, e.g. Alabama requires a driver's licence to vote, but budget cuts would close all but four of the state's 49 driver's licence offices. 

Redistricting offers further opportunities to disenfranchise, and a constitutional right to vote, presently missing, may be required to stop cascading, mainly Republican, vote-suppression. 

FromRoger Fitch and our friends down under at Justinian...

Fighting the unprivileged in court

ROGER FITCH ESQ • THURSDAY, AUGUST 6, 2015

Former AG Eric Holder goes back to big law ... Possible reward for failing to prosecute banks ... TPP will see Australian health care targeted by predatory US insurers ... New trend of prosecuting foreign "unprivileged" fighters in US civil courts ... Roger Fitch files from Washington 

"The government may not always say what it means or mean what it says."

- Judge Royce Lamberth in finding la guerre in Afghanistan n’est pas fini. 

THE supreme court's term has expired and, in September, so too will the life of a late litigant.

Oklahoma will get another chance to use medical experimentation on death row inmates' executions and Richard Glossip risks a cruel and unusual death, thanks to junk science gleaned from the internet.

Glossip lost his case by one vote. 

Retired Justice John Paul Stevens had some astute observations about this and other 2014 term decisions, including the marriage equality case, Obergefell(explained here and here). 

*   *   *

On Wall Street, crime pays like no other place.  Now, long-time Obama Attorney General Eric Holder is returning to his old law firm, Covington & Burling, and some have unkindly suggested he'll be rewarded with work from the same banks he didn't prosecute (in fact, only one top American banker went to jail).

Meanwhile, the DoJ's "Deferred Prosecution Agreements" that allow great corporations to escape criminal convictions, save their reputations, avoid civil suits, and keep getting government contracts -  favoured by AG Holder - have attracted the favourable attention of the UK's Tory government. 

*   *   *

A health care oligopoly, predicted when President Obama chose private insurance over public, is coming to fruition: soon there will be only three major health insurers.    

The Australian health care system, with subsidised for-profit insurers like Medibank – and vulnerable non-profits - could be in the sights of predatory US insurers, thanks to the Coalition's Trans-Pacific "Partnership".  Soon Australia, too, can learn the benefits of (corporate) "managed medicine".

The big breakthrough for the US will be Australia agreeing to the horrifying ISDS (Investor-State Dispute Settlement) process, where Australian courts are cut out and government laws and policies affecting education, agriculture, health, safety and the environment - and much more - are dismantled in private courts staffed by corporate lawyers. 

The very notion of a corporation having the right to sue a government outside its own sovereign courts is a shocking one, rejected by previous Coalition governments, but it seems Tony Abbott's government accepts them, having agreed to their use in the recent China and South Korea "free trade" agreements.  

Senator Penny Wong wants these poison pill courts annulled. 

Meanwhile a new ANU study has found Australia's 2005 "free trade" deal with the US has not increased trade at all. More here.

*   *   *

The US has long seized and interned combatants whom they categorise as "unprivileged", although the Article 5 (prisoner status) hearings they are entitled to under the Geneva Conventions and US law have never been held. 

A few of those who dared oppose US soldiers and military operations overseas are now being brought to the US for civil trials. 

Irek Hamidullin is a Russian convert to Islam picked up in the Afghan war and brought to the US for trial in a Virginia federal court on sundry war-related charges – labelled "terrorism" - on the basis that he had been "fighting with the Taliban" – assuming, with George Bush, that Taliban fighters can't be privileged belligerents.  

The judge expressed scepticism but allowed the case to proceed. Coverage of the trial has been spotty. 

It may indeed be lawful for the US to prosecute military opponents in civil courts using US domestic laws, by classifying them as unprivileged and charging them with terrorism.

As previously noted (see post of Sept 2010) the authoritative Conduct of Hostilities Under the Law of Armed Conflict (2004) provides that: 

"With unlawful combatants, [the law of armed conflict] refrains from stigmatizing the acts as criminal.  It merely takes off a mantle of immunity from the defendant, who is thereby accessible to penal charges for any offense committed against the domestic legal system."

You'd think that would be the domestic legal system of the country where the war is occurring, e.g. Afghanistan prosecuting personal crimes such as murder and looting committed under cover of war, but according to the ICRC: 

"If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents ... [and] ... may be prosecuted under the domestic law of the detaining state for such action." 

Knowledgeable academics like Just Security's Steve Vladeck seem comfortable with the idea of US civil prosecutions for foreign battlefield actions, evidently on the assumption that the Taliban don't qualify as lawful, privileged belligerents and are thus "terrorists". 

If Hamidullin is meant to be indicative of foreign fighters who have opposed Americans, he seems an odd choice, as he didn't actually harm anyone. As his lawyer pointed out, the case was not about suicide bombings or attacking civilians, and was "the very first case of its kind". 

In fact, the US has already obtained a domestic conviction against a foreign combatant for opposing US troops on a battlefield overseas. More here on the conviction of Saddiq Al-Abbadi, achieved through a guilty plea.

The NY Times comments on the strange new trend of prosecuting foreigners in American courts for crimes - if such they be - that occurred outside the US, including many that have little or no connection to the US.

In a British case similar to Hamidullin's, and based on unprivileged combat, a UK resident, Anis Sardar, was convicted of murder for making a roadside bomb that killed a US soldier in Iraq.   

What if Sardar had been a lawful combatant? In today's warfare, is the use of a hidden roadside bomb a war crime? Does it involve treachery or an unlawful weapon?

It's being treated as a war crime in the latest Guantánamo prosecution, that of Abd al Hadi. If so, it would be - along with his alleged attacks on civilians - among the first valid war offences charged at Gitmo. 

Legal academics are meanwhile debating what to do with the Pentagon's unprivileged belligerents - those CIA operatives, who drone-kill military and non-military targets alike, assisted by mercenaries, sorry, contractors, who could also become unprivileged belligerents, but, like the CIA, receive little oversight. 

What could possibly go wrong?

From Roger Fitch and our Friends down under.... At Justinian.

Crimes and misdemeanours

ROGER FITCH ESQ • THURSDAY, JULY 16, 2015

Latest from the US Supremes ... Citizens United splits a seam ... Trade agreements and sidelining judicial oversight ... Leveraging the "no fly" list ... Terrorism prosecutions and the First Amendment ... From Our Man in Washington, Roger Fitch 

IN Ubergefell v Hodges, decided June 25, the supreme court discovered a hitherto unknown right to same-sex marriage, nestling undetected in the constitution since the 1868 adoption of the 14^th Amendment.  

Scarcely two weeks later, the state of South Carolina abruptly decided it was anachronistic to have the Confederate States of America flag flying over its capitol.  

No one asked what the flag was doing there, 150 years after the end of the Civil War - further proof of William Faulkner's bon mot, "The past is never dead. It's not even past." 

*   *   *

In the court's waning days, Republican governors lost their baffling battle to defeat government-assisted health insurance in their states.

In King v Burwell, "Obamacare" survived.  

The states should have known a corporate lawyer (CJ Roberts) and former lobbyist (Justice Kennedy) wouldn't upset an implemented scheme of compulsory, subsidised health insurance worth billions to insurers, pharmaceutical companies, the "healthcare industry" and sundry corporate investors. 

Now, some of the 35 Republican governors want to stop the Environmental Protection Agency from enforcing new carbon emissions rules. 

Subsidies for insurance and pharmaceutical companies got the better of God

They've been buoyed by the last-day decision of their Republican brethren on the supreme court in Michigan v EPA, making the legal regulation of mercury pollution subject to (irrelevant) cost considerations that "burden" the offending power plants.

*   *   *

The supreme court's same-day, happier Arizona redistricting decision supported citizen initiatives to take constituency-drawing out of the hands of partisan legislatures.

It's already been cited by Florida's supreme court in a redistricting case, and may haveimplications for presidential elections.  

There's also been a refreshing break in the unrelenting setbacks for democracy flowing from the Citizens United case, with a unanimous en banc DC Circuit upholding bans on federal contractors donating to politicians who give them work. 

*   *   *

Mr Obama now has the Fast Track authority he wanted – the constitutionally questionable gift by Congress of authority to negotiate "trade" treaties which cannot thereafter be altered, except by a "no" vote on the unamended package.

An also-compromised European Parliament has tentatively backed the odious Transatlantic Trade and Investment "Partnership", and environmentalists are justly alarmed.

The TTIP is one of the three imperial treaties President Obama is simultaneously negotiating worldwide.

According to WikiLeaks, another of the treaties, the Trans Pacific "Partnership" channels a US scheme to crush the public health care systems in Australia and New Zealand for the benefit of Big Pharma and other US corporate malefactors. 

The US threat to exclude Canada for failing to roll over on agriculture leaves little doubt that Americans are the prime movers and orchestrators of the TPP. 

Trade in Services Agreement: shifting sovereignty offshore

The Trade in Services Agreement, third prong of this corporate trifecta (see June post), has been the subject of further revelations, with WikiLeaks publishing a second tranche of negotiation documents that reveal plans of the world's biggest corporations and banks to plunder at will without effective regulation or judicial accountability.  

It's a blueprint for acquiring an unfair advantage over local interests by avoiding ordinary costs of doing business such as maintaining an office and local presence, while evading compliance with environmental, labour, health and safety laws, with costs shifted onto the public. The goal?  Removing "investment" risks -previously considered an essential feature and justification of capitalism.   

The idea is to have governments sign a sort of confession of judgment, should they be so imprudent as to pass legislation, promulgate regulations or otherwise make decisions that cost corporations money - including speculative future profits.

There's more on the reckless TISA proposals here and here. 

In an exquisite irony, TISA has "transparency" provisions which, like all the others, are to be kept secret for four years after the adoption of the treaty or the abandonment of negotiations.

*   *   *

A DC Circuit panel recently ruled that conspiracy and other US-invented offences are not, in fact, war crimes, after the Al Bahlul military commission case was remanded by the circuiten banc. 

FindLaw aptly headlined "Military Tribunals Can't Try Terrorists for Civil Crimes", butWashington Legal Foundation's director wrote, "Appeals Court Confounds Military Justice by Importing Foreign Law into the US Constitution", ignoring the constitution's specific reference to the "law of nations" when setting out Congress's power in Art I, sec. 8. 

Steve Vladeck comments here and here.

The NY Times praised the decision. 

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Fly and spy

Running trained and professional spies is expensive, but the FBI has found a better, cheaper way to keep track of Americans deemed suspicious, ie, Muslims: the use of the no-fly list to coerce them into spying.  

Refuse to spy, you're on the list. Want off? Agree to spy.

That was the theory, but in a suit in NY federal court, the government has agreed to stop using the no-fly list to torment Muslim-Americans who refuse to spy.

The men still want damages.

Incredibly, the government, in defending against the Bivens civil damages action, arguesthere is "no constitutional right not to become an informant".  

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It's come to this: it's news when a Muslim is not punished as a terrorist for exercising First Amendment rights that the Justice Department deems uncongenial. 

The government had sought "terrorist enhancements" of 20 years in the sentence of a man already convicted, with time served, for unrelated offences. His crime? He'd been looking at "Islamic literature" (more here).

The case reminded Fitch of the Bostonian, Tarek Mehanna, now serving 17 years fortranslating such literature. 

And then there's 20 years in prison for clearing your web browser. That's what DoJ is seeking in the case of a mate of the Boston bomber, charged with obstruction of justice for actions after his friend's arrest, though he had no foreknowledge of the bombing. 

There's a new book out on such "terror" prosecutions by Wadie Said, son of the late Palestinian-American intellectual Edward Said.  

Meanwhile, in a major decision, the Second Circuit has ruled in favour of Muslimsindiscriminately rounded-up in the wake of 9/11.

More here and here on a case that has already lasted 13 years. 

Steve Vladeck reviews the 200 page judgment and there's more background here.  

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And last, after a decade of lying and stonewalling, the American Psychological Associationhas finally admitted its shameful collaboration with CIA and Pentagon torture.

The Guardian and NY Times have more.