Thursday, March 26, 2015

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

Out and proud

Four marriage equality cases go to the US Supremes ... Is there a constitutional right to gerrymander? ... Secretive lawyer society behind moves to bring downAffordable Care Act ... Shock finding - lawyers more liberal than most, but judges are more conservative ... Republican senators' undiplomatic activities ... Roger Fitch files from Washington 
Senator Tom Cotton: taking on Iran
Forty-seven Republican senators have sent Iran a brazen letter attacking Mr Obama's foreign policy powers, essentially promising that a future Republican government will break any agreement the Democrat president makes to forestall the development of nuclear weapons in Iran.
The undiplomatic note penned by Arkansas's notorious new senator, Tom Cotton is bad law and seems to violate the Logan Act'sprohibition of private correspondence with foreign governments.
Republicans have form when it comes to sedition. In 1968, they warned South Vietnam away from Lyndon Johnson's Paris peace talks, causing their collapse. In 1980, they persuaded the Iranians to hold on to the American hostages till Ronald Reagan had been elected, promising a better deal.  
But those plots were secret. With a Tea-Party Congress, it's another matter: they're out and proud.  
The Republican revolutionaries will likely go unpunished, as no one has been prosecuted under the Logan Act since it was passed in 1799.
Senator Cotton was recently promoted from his House seat with the help of nearly a million dollars from the "Emergency Committee on Israel", so his motives are open to question. 
Indeed, the real scandal lies in the fact that 47 of 100 senators are prepared to pursue the foreign policy goals of a foreign nation - in this case, Israel - as against their own government.
It's a policy that included the unilateral invitation to Benjamin Netanyahu to address Congress. The Israeli PM predictably used that platform to make partisan attacks on Iran and Obama, and generate video footage for his then ongoing political campaign.   
For more on the Republicans' incessant attacks on international law - eg, binding treaties and executive agreements between countries - there's a timely new book by LieberCode'sJens David Ohlin. 
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Venezuela: posing a threat to the United States
President Obama's reconciliation with Cuba may have upset hardline Republicans - including two Cuban-American senators - but the bipartisan policy of beating-up independent-minded Latin American nations is still flourishing.
Just this month, Mr Obama warned the senate of a "national emergency" in which Venezuela posed "an extraordinary threat to the national security and foreign policy of the United States".
This declaration of an existential threat to the American republic was designed to trigger more pointless sanctions, and rightly drew ridicule from Al JazeeraEmptywheel's Marcy Wheeler and the NY Times.
Venezuela has reason to be wary: a representative of the misleadingly-named National Endowment for Democracy is reportedly travelling incognita in the country to meet - secretly - opposition leaders.   
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Scalia and Thomas: travelling together
In April, the Supreme Court will consider four "marriage equality" cases from the 6thCircuit, the only circuit to rule against same-sex marriages. Meanwhile, the court continues to allow these marriages to go ahead in the circuits that have ruled them legal.
Alabama was briefly the 37th state to have gay marriage, but now there's a stand-off between the federal and state courts, reminiscent of the civil rights litigation in the 1960s. 
Clarence Thomas - joined by Nino Scalia - filed a bitter dissent in Strange v Alabama, accusing the court of "indecorous" and "cavalier" rulings.
In the midst of a busy schedule, the court still found time to knock back another Gitmo civil action, that of Abdul Al-Janko, a prisoner (now released) who experienced one of the more outrageous miscarriages of justice in the sordid history of Guantánamo Bay. 
There remain many more important cases before the Supreme Court in March, one of which involves independent commissions for determining electoral boundaries.
Australians accept an independent Electoral Commission as a sensible idea for removing politics from elections, but they're under attack in the US.
Arizona State Legislature v. Arizona Independent Redistricting Commission, currently before the court, considers whether a state legislature has a constitutional right to gerrymander, unhindered by citizen-approved independent bodies. 
The court seemed sceptical of independent boards at oral argument, and with swing-justice Anthony Kennedy showing a poor grasp of US history, it seems possible the legislature will win
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Federalist Society behind moves to bring down Obama's Affordable Care Act
A new Harvard study has found that US lawyers are generally more liberal than the average citizen, while judges are more conservative. 
Why are judges conservative? Maybe it's because more federal judges have been appointed by Republican presidents, especially during the 12-year Reagan-Bush Reich.
In the early eighties, things were more balanced, so the Republican Party set out to rectify the problem through the creation of its rightwing legal front, the Federalist Society
Today that organisation is within striking distance of bringing down the Affordable Care ActObama's health insurance scheme.
More here on King v Burwell, where there's danger in the wind as the ideological majority gets another crack at thwarting Obama's health care reforms. 
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At Guantánamo, the government has once again shown it can't be trusted to play nice at the innately unfair military commissions and the Convening Authority has resigned under pressure after adverse court rulings. 
Defence lawyers have already had to contend with FBI listening devices planted in smoke detectors of client interview rooms; government interference with and attempted co-optionof a defence team member; and even real-time censoring of court proceedings by unidentified spooks. 
Now, an interpreter offered to the counsel for the "9/11" accused has been recognised by the defendants as an alumnus of the CIA team at their torture black site.  
Confronted by the judge, the Pentagon readily admitted the interpreter was a CIA asset, but wouldn't say where. The case is proceeding without him.
There was some good news. The Kafkaesque gag order, which had prevented the defendants and their counsel from even talking about their black site and other torture by the CIA, has been partially lifted.  
One of the first prisoners to benefit will be the 9/11 defendant Mustafa Hawsawi, now free to discuss being - uh - sodomised by the CIA (see December post). 
Marty Lederman is optimistic things are improving. More here
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US Virgin Islands: the new Guantánamo
As is well known, Cuba would like the US to leave Guantánamo - it's no longer being used as a coaling station.The governor of a US territory sees an opportunity, and wants to locate America's next Devil's Island in the lovely Virgin Islands. 
Fitch can hear it now - "Fermez St Croix!"