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.
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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".
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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.