From Roger Fitch and our Friends Down Under at Justinian

Changing the rules

ROGER FITCH ESQ • THURSDAY, JANUARY 21, 2016

Citizens United has transformed the landscape of campaign finance in the USA ... How the US trashed its prisoner-of-war obligations and clung onto Guantanamo Bay ... Rupturing the Geneva Conventions ... Impunity for the Pentagon under loose standards ... Roger Fitch files from Washington 

AS the 2016 election approaches, there's a certain asymmetric inconsistency in the political game.

On the one hand, there's bipartisan vote buying; on the other, nation-wide vote-blocking, by a party determined to hang on to power in the face of changing demographics that now make it a minority. 

The constituencies for vote-buying and vote-blocking are obviously different. Votes of political representatives at every level of government are beingbought, and they in turn are blocking votes of citizens, most recently in Wisconsin and Kansas.  

In 2016, for the first time in a presidential election year, purchased politicians can forestall unreliable voting by suspect citizens. There's no need to buy anyone's ballot, if you can choose which party faithful gets to vote.  

This retrograde development in representative democracy was made possible by the calamitous and partisan decisions of the supreme court in Citizens United v FEC (2010), opening the gates to unlimited corporate election spending, and Shelby County v Holder (2013), gutting theVoting Rights Act, a law protecting the right to vote that was re-enacted by Congress with near-unanimity in 2006. 

To make matters worse, just before Christmas break, Congress doctored the Appropriations Act 2016 to entrench the political spoils of Citizens United.   

Buried within the Act are clauses that (1) make it illegal to regulate Citizens United money, so rendering impossible "dark money" reporting by federal regulatory bodies such as the IRS and the SEC; and (2) prevent the president from using disclosure requirements for enforcing federal procurement law, thus overriding Obama's power, recently used, to require federal contractors to reveal their, er, monetary contributions to those giving them contracts.  

An outraged Counterpunch writer lays out - in highly-coloured prose - more chapter and verse.  

The Washington Post has more.  

The progressive Brennan Centre for Justice at NYU Law School has a new report on the six 5-4 decisions of the Roberts Court that have "transformed the landscape of campaign finance in America, largely for the worse."  Citizens United was the most appalling of the lot.

Conversely, the neoliberal University of Chicago sees good in it: in a new study (abstracthere) in UC's Journal of Law and Economics, the authors looked for "the impact of corporate political activity on the stock prices of those firms that are most likely to utilizenew opportunities for political engagement", as the corporate investment in politicians - licensed by Citizens United - was politely described.  

The authors found that indeed, "corporate political activity enhances shareholder wealth, particularly in firms that are small to medium sized, firms that spend relatively less on lobbying, and firms operating in more heavily regulated industries." 

Well, quelle surprise. Money talks.

*   *   *

Columbus arrives in Puerto Grande

There's a harbour in southeast Cuba so capacious that when Christopher Columbus anchored his fleet there in 1494, he named it Puerto Grande.  

When British admiral Edward Vernon visited in 1741 during the War of Jenkins' Ear, he renamed it Cumberland Harbour. Accompanying Vernon was a naval surgeon, Tobias Smollett, who afterwards wrote up his travels in The Adventures of Roderick Random. 

The bay was a haven for pirates, long before the buccaneers Bush - père and fils - started stuffing it with prisoners and hostages: Haitian asylum seekers; men from real or rhetorical wars; even actual pirates, e.g. Abd al-Rahim al-Nashiri and Ahmed al-Darbi, both now facing military courts for acts of violence on the high seas (usually defined as piracy) having nothing to do with war, and in one crime alleged, nothing to do with the country holding and charging them. 

Guantánamo Bay now hosts an extrajudicial internment camp entering its 15^th year. In notoriety, it outstrips Devil's Island, and it has held hundreds of Dreyfuses. SinceBoumediene (2008), not one of their cases - civil or military - has gone to the supreme court, regardless of merit or the injustice presented. 

Many have reflected on the sordid history of this unnecessary military blunder, e.g. the Al Jazeera journalist Sami al Hajj, held at Gitmo for six years, apparently to intimidate his employer and pry into its affairs. 

Al Jazeera  has not been silenced, and as the Pentagon in January expatriated ten Guantanameros in one go, AJ published a "where are they now" story on past, botched repatriations and reckless refoulements.  

Only the Canadian Omar Khadr seems to be receiving the rehabilitation so many deserve after their ordeal.  

Rolling Stone had a story, "America's shame", and the Miami Herald reported on the six remaining internees (now reduced to five) from the original 20 of January 11, 2002, that included David Hicks.

Almost on cue, the Pentagon released Fayiz al-Kandari, the last of the petitioners from the supreme court's landmark 2004 decision, Rasul-Al Odah, a joint appeal by two British men, joined by the Australians Hicks and Habib, and twelve Kuwaitis. 

US Navy at Guantanamo Bay

That's a long time for a supreme court case to play out, but al-Kandari was clearly a man the Pentagon wanted to keep, despite the Kuwaiti government having sought his release for years. Indeed, the military seems to have vindictively prolonged the detention of certain inmates, while frustrating the closing of the prison itself through dilatory manoeuvres.  

The Pentagon's blanket denial of prison-of-war status meanwhile continues. It began with George Bush's initial suspension of the Third Geneva Convention, but as this column has frequently noted, only Congress can derogate from a ratified treaty.

Bush's extralegal rupture of GIII was swiftly followed by his pre-emptive declaration that all Taliban soldiers detained in Afghanistan were unentitled to prisoner of war status, a nonsense Barack Obama has left undisturbed. 

One wonders why Mr Obama has spent seven years digging George Bush's Gitmo hole ever deeper.  

It would have been easy for the new president to announce, on taking office, that there would be Article Five hearings (see most recent previous post) for all prisoners then held at Gitmo. That would have allowed the US to accord GIII prisoner-of-war status to those who were entitled to it; repatriate or expatriate those wrongly held; and continue to hold - until the end of hostilities - those rightly detained.  

Those exonerated could be more easily returned, and reintegrated into society. 

The Pentagon, however, has never admitted the innocence of any prisoner released, let alone helped or compensated him. Diabolically, each is merely "no longer an enemy combatant", who's found to be "no longer a threat".  

Such a policy change of restoring the pre-Bush rule of law, of course, would have involved admitting the previous government had made mistakes - indeed, had committed grave violations of the Geneva Conventions. 

It would also have meant conceding the war in Afghanistan was an International Armed Conflict, where GIII applied throughout. That's something the Pentagon could never allow, for the military is now inured to the impunity they receive under the looser Common Article Three standards for treatment of prisoners in a Non-International Armed Conflict.  

It's worth remembering that according to studies, only five percent of prisoners sent to Guantanamo were captured by Americans on a battlefield. The rest were either unvetted Northern Alliance prisoners; men abducted elsewhere (as far away as Bosnia, Thailand and the Gambia); or all too often, men bought with $5000 bounties paid to needy Afghans and venal Pakistanis.