From Roger Fitch and Our Friends Down Under

TPP heads towards the ditch

ROGER FITCH ESQ • TUESDAY, SEPTEMBER 13, 2016

Voting in Republican states is a daunting ordeal ... Staff-to-prisoner ratio at Guantánamo stands at 33:1 ... Finding new jurisdiction for a war crime ... The TPP - a charter allowing badly behaved US companies to behave badly in other countries ... Star Chambers staffed by corporate lawyers ... Roger Fitch rails against "free trade" initiatives 

Scalia: disparu

THE salutary departure of Antonin Scalia from the supreme court has resulted in a victory for North Carolinians planning to vote this year, with a tied court declining to lift the 4^thcircuit stay of NC's restrictive voting laws, more here.

Even so, both North Carolina and Texas (more mischief here) are cheating wherever possible.

The unlawful proof-of-citizenship requirement granted to Kansas, Alabama and Georgia by the partisan, Kansan CEO of the Election Assistance Commission, has been blocked by the DC circuit, although such devious practices as purging voter rolls continue to make voting in Republican states a daunting ordeal.

In these and other matters, Obama's progressive circuit court appointees are making a big difference (see chart), and it's hoped that a more liberal supreme court will follow when a (Democrat) justice replaces the disparu Scalia.

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Cellular world at Guantánamo (photo Matt Sprake)

As Mr Obama continues his (feeble) efforts to close Guantánamo, the military jail for proxy prisoners taken - or purchased - in the "war on terror", the New Yorker has reviewed the earlier use of America's Devil's Island by Bush Snr and Bill Clinton. 

Many of those presently detained are symbolic hostages in a rhetorical war, held by mistake or in violation of the laws of war; indeed, many Pentagon "profiles" presented to Periodic Review Boards artlessly admit these "law of war" prisoners have no connection to 9/11 or the Afghan war that ostensibly authorises their confinement. Not one of them has been provided appropriate Geneva Convention rights.

Only five percent of the Guantanameros were actually captured by Americans on a battlefield, a fact that goes unremarked by the media, as well as politicians who read the Pentagon's "transparency reports."  

The 779 men and boys have been gradually released - some through death - and after the latest mass  expatriation, the count stands at 61, leaving a staff-to-prisoner ratio of 33-1 and an annual per capita cost of $6 million. 

With the initial PRB hearings now complete, Marty Lederman has a report on all the prisoners not subject to military commissions; the Intercept has more.  

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Pacific Rim trade countries

The Trans Pacific Partnership, an American "free trade" initiative, covers 12 Pacific Rim countries. Australia is eager to join, despite its existing bad bargain under the Australia United States Free Trade Agreement, made worse by the TPP. Briefly described, it's a corporate charter allowing badly-behaved companies from one country (e.g. the US) to behave badly in other countries, unhindered by disagreeable laws, regulations or judicial oversight. 

After putting whole fields of sovereign authority out of the reach of national and local governments, the TPP effectively closes a country's own courts and institutes its very own one-way court system, the reviled Investor State Dispute Settlement, a system of compulsory arbitrations available only to foreign corporations.  

These corporate lawyer-staffed star chambers have no regard to precedent and allow no appeals, and were consistently rejected in Australia until the return of a Coalition government in 2013. 

Besides removing uncongenial governmental regulation (environmental, health, safety, labour), an obvious aim of the TPP and its sister "trade agreements" (see below) is to crack open new markets to foreign plunder and force privatisation of essential activities and government functions such as health care, water, electricity, emergency services and public enterprises. A "ratchet" clause would ensure that nothing, once privatised, could be reacquired by the public.

The treaties aim to give foreign corporations a role or veto in, inter alia, land use (e.g. mining and agriculture), health care and education, while preventing the introduction of laws and regulations in respect of e.g. natural resources or climate change (more here) that multinationals claim might affect speculative (and indefinite) future profits.  

The TPP offers little benefit to the American economy, and according to the World Bankand Australia's Productivity Commission, it's a dismal deal for Australia. 

Happily, the TPP may be doomed in this Congress by the Republican majority leader's decision to not bring it to a vote and the defection of the House leadership of both parties, and it's not looking too good for the colluding "partners", because, as Rabble notes: 

"... six of the 12 countries will need to have ratified and together those countries must comprise 85 per cent of the total GDP of the 12 original nations that signed the treaty. The US and Japan alone account for nearly 80 per cent of the total GDP of signatories." 

Stories are meanwhile emerging of some of the horrifying consequences of ISDS arbitrations.  BuzzFeed has long reads here, here, here, and here on abuses where sovereign states get shaken down by foreign corporations, often over control of essential resources. 

ISDS courts and prospective causes are already being gamed by those who snap up the right corporations.   

There's more here on predatory subsidiaries of big international banks like Deutsche Bank, being set up to exploit ISDS litigation.

Another corporate sweetheart deal being hawked by Mr Obama, the Transatlantic Trade and Investment Partnership, is now in trouble, with the French and Germans backing off, and the British out.  

Even if the TTIP falls apart, there's worse ahead for Europe: CETA, the Comprehensive Economic and Trade Agreement, a toxic agreement with Canada that promotes many of the TTIP corporate hustles.

The third multilateral treaty in this transnational trifecta, the Trade in Services Agreement,remains on track, with Australia already capitulating to key US demands (see Fitch of June 2015), but now, there's hope all three agreements will meet the same fate as the ill-starred Multilateral Agreement on Investment that collapsed in 1998 (see Fitch of March 2016). 

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Hole in the Cole: backdating the state of war

Readers of this column may recall the baffling military commission charge against Abd al-Rahim al-Nashiri for a 2002 bombing in international waters of a French-flagged Malaysian-chartered tanker that killed a Bulgarian crewman, an occurrence with no connection whatever to the US or any war.   

The charge was afterwards dismissed when the military judge asked the prosecution to produce some predicate evidence of the bombing and the government declined. Instead, the chief prosecutor took an interlocutory appeal to the Court of Military Commissions Review and, in July, the Pentagon's drumhead court predictably overturned the ruling. 

Nashiri appealed another of the charges, for the bombing of the USS Cole, noting that the US was not at war with any relevant party or state when, in 2000, the Cole was sunk in Aden harbour by al Qaeda followers.  

In a party-line 2-1 decision in August, the DC circuit upheld the charge, deferring to a different judge's ruling that the USS Cole bombing was war-related, more here.   

The backdated state of war provides the necessary jurisdiction for a "war crime" prosecution, more here, but unless there's "perfidy", it's no offence to attack an enemy ship.  The case continues. 

Stay tuned.