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 14th 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."
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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.
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.
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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.
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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.
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.
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.
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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.
The NY Times praised the decision.
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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.
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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.