ROGER FITCH ESQ • MONDAY, MAY 9, 2016
Fourteen years after filing a habeas petition, Guantánamo prisoner is released ... US claims right to indefinite detention , at will ... When did the US war with al-Qaeda commence? ... Kansas Republicans want to impeach the state's judges, for disobedience ... Voter suppression ... Republican convention and "open carry" ... Roger Fitch, Our Man in Washington
Ah, the law's delay.
The Libyan Salem Gherebi, one of the first Guantánamo prisoners to file a habeas petition in the United States, has been freed and sent to Senegal.
Gherebi's case had its roots in the "West Coast" habeasfiled in January 2002 (reported here), and in December 2003, he became the first Guantanamero to triumph in a US appeals court.
In June 2004, in Rasul v Bush (David Hicks' case), the supreme court confirmed the right of Guantánamo prisoners to habeas hearings, with venue in DC.
The 9th circuit's decision was vacated, and Gherebi'shabeas was transferred to Washington, where it languished.
Fitch earlier noted the reaction of the 9th circuit court that heard Mr Gherebi's case:
"Under the government's theory, it is free to imprison Gherebi indefinitely along with hundreds of other citizens of foreign countries, friendly nations among them, and to do with Gherebi and those detainees as it will, when it pleases, without any compliance with any rule of law of any kind, without permitting him to consult counsel, and without acknowledging any judicial forum in which its actions may be challenged.Indeed, at oral argument, the government advised us that its position would be the same even if the claims were that it was engaging in acts of torture and that it was summarily executing the detainees (emphasis added).To our knowledge, prior to the current detention of prisoners at Guantanamo, the US government has never asserted such a ... startling proposition ... a position so extreme that it raises the gravest concerns under both American and international law."
The Justice Department's astonishing arguments, made in 2003 as David Hicks lay bailed up in Guantánamo, went entirely unnoticed by John Howard's lawyers, and the man directing DoJ's case, Robert McCallum, later became US ambassador to Australia. Such is irony.
In due course, torture and summary executions were fully implemented. Drone assassinations continue, and Trump-torture remains on the table.
The US continues to release other internees, including the long-suffering hunger-strikerTariq Ba Odah, whose habeas claims met ruthless government opposition as recently as last year.
Guantánamo prisoners not previously "cleared" must satisfy Periodic Review Boards. Some media mischievously call these parole boards, though there's no previously-imposed sentence.
Which internees get knocked back? Pakistani businessman Saifullah Paracha's release was rejected for such offences as "refusal to distinguish between legitimate and nefarious business contacts", whereas the Yemeni Suhayl al-Sharabi lost out through a classic Catch-22 - refusing to confess - plus his "defiant behaviour" and diabolically, his "lack of a credible plan for the future".
* * *
One of the most fantastic legal fictions (see Fitch) of the Bush-Obama era is the retrospective claim that the US has been in a legally-cognisable armed conflict with al-Qaeda since Bill Clinton's days.
An important article by two U Michigan law profs examines this Pentagon conceit and concludes no war existed before the October 2011 attacks by the US on Afghanistan.
That finding would dispose of al-Nashiri, the military commission appeal awaiting a DC Circuit decision. It would also nullify the 9/11 commission - the case the Obama administration has cast as the one trial, if any, able to vindicate the reckless military commission experiment.
The 9/11 attacks that killed over 3,000 non-combatant civilians would certainly qualify as war crimes - if there had been a subsisting armed conflict to which the Geneva Conventions applied. But there wasn't any war underway on the morning of September 11, 2001.
* * *
Texas is no longer the craziest Tea-Party state. It's further north, in Kansas, where Republican governor Sam Brownback, heedless of Marbury v Madison, obtained legislation to defund the entire state judiciary should the state's courts find unconstitutional a new state law intruding into the courts' powers.
The district court predictably ruled against the state, so the state attorney general tried to prevent the state's supreme court hearing the appeal. The court duly accepted the case, and ruled against the legislation.
In its next salvo, Kansas introduced legislation enabling the impeachment for usurpation of the state's supreme court justices, although it would be easier to pack the court - the Arizonaand Georgia solution.
In the end the state reluctantly took the legislative action the supreme court mandated, but the beat-up should help Tea-Partiers rally the rabble to defeat supreme court justices up for re-election this year.
Kansas also excels in vote suppression, and Republican Kris Kobach, the Secretary of State and elections supervisor, has succeeded in shoehorning his own Kansan candidate into the Obama administration's bureaucracy as the head of the misnamed Election Assistance Commission.
The EAC is far from being a non-partisan body like the Australian Electoral Commission. According to the Times, Republicans have hijacked the agency, and the new EAC is accused of actually suppressing votes.
Kobach's man at the EAC, Brian Newby, obligingly allowed restrictive voting requirementsin Kansas (contra a 10th circuit ruling against the state), without public consultation or FEC commission approval.
In his latest "blunder" the devious Kobach issued flagrantly-mistranslated Spanish voter guides that could "accidentally" disqualify Democrat-inclined Hispanic voters.
Systematic vote-suppression began in Florida with the 2000 presidential election and reached its zenith in North Carolina this April with a Bush appointee's judicial blessing. That ruling could well be overturned by the 4th circuit – but perhaps not in time for this year's election.
More here and here on the 17 (soon to be 18) states whose new laws confirm the bon mot of American radical Emma Goldman: "If voting changed anything, they would make it illegal."
A new book looks at the Republicans' disingenuous quest for the fraud of voters. It's nearly nil, but lack of a factual basis never deters the party faithful.
Meanwhile, it's delegate votes that count at the parties' national conventions, and the Republicans will be gathering in Ohio, a state where delegate-buying is a felony. Even so, Australia's ABC found a senior Republican official who promised "cash on the table" if there's a contested Cleveland convention.