ROGER FITCH ESQ • TUESDAY, AUGUST 29, 2017
Trump's lootin' and pollutin' ... CIA torture - settlement prospects open up ... Farcical military commissions ... Roger Fitch reports from Washington
IN addition to record showers of Trumpian lies and floods in Houston, the Americans just experienced a total solar eclipse, and the occasion provided a brief insight into the disordered mind of Donald Trump.
The president triumphantly posted a series of photoson Twitter in which his colourful visage slowly eclipsed the black-and-white image of his predecessor, unconsciously acknowledging he's but a moon - or a rock - to Barack Obama's sun.
Despite this unexpected presidential self-effacement, the state of affairs in Washington remains dire.
The tatty, malformed receptacle that is Donald Trump, though cracked and leaking, has become a bottomless vessel for the special needs of family businesses, rapacious corporations (mostly miners), religious zealots, the far right and surviving members of the president's greedy entourage: it's all about looting and polluting, and foreign pillage is under consideration.
People are baling out, and the president's former associates Steve Bannon and Sebastian Gorka have retired to the far-right website Breitbart News, intent on refreshing the badly-crazed pot from outside.
After initial interest in Donald Jnr, special counsel Robert Mueller and his dream team are considering bringing some kind of charge against the elder Trump, who is meanwhile facing multiple emoluments cases with one scheduled for argument in October.
The possibility of a President Michael Pence, however, is little comfort, and those who abhor Trump should be wary of Vice-President Pence, also unqualified, but in some ways more dangerous.
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For those wanting to own a piece of history, the infamous aircraft N313P, one of the planes used for CIA torture renditions, was recently put on sale for $27.5 million. N313P ferried torture victims to US vassal states such as Poland and human rights violators like Uzbekistan, Egypt and Libya.
Neither the US government nor American courts have provided any civil remedy for the victims of such CIA operations, and both the Bush and Obama administrations invoked the state secrets doctrine - along with other shameful ruses - to block any recovery of damages by those affected.
Except for a settlement some Abu Ghraib abuse victims obtained from the US government contractor L-3 Services (and others may possibly achieve in a pending suit against the contractor CACI International), victims of US abduction and torture have only received compensation from a few of the accomplices such as Macedonia and Poland, through claims in the European Court of Human Rights.
A new avenue has now opened up, however, through which the CIA could be indirectly obliged to pay compensation, even though the former head of the CIA's Thai torture camp, Gina Haspel, is now the top official at the agency.
When we last visited Ms Haspel (see March Fitch), she'd been evading a deposition in Salim v Mitchell, the lawsuit brought by two CIA-tortured men and the family of a third who was tortured to death (the depositions of other CIA identities were successfully taken).
Venue for the civil damages suit lay in the progressive enclave of Washington state, due to the Spokane residency of the defendants, the CIA's contract "psychologists" James Mitchelland Bruce Jessen, who designed and implemented the (shudder) "Enhanced Interrogation Techniques" used by the CIA.
While these plaintiffs were tortured at Bagram, in Afghanistan, Mitchell and Jessen began their highly unethical experiments on Gina Haspel's turf in Thailand, with the very first man tortured by the CIA, Abu Zubaydah, as their guinea pig.
The psychologists relied on worthless "legal" authorisations they received, some from the odious Stephen Bradbury, now Trump's General Counsel at the Transportation Department (see June Fitch).
Thanks in part to the stubborn persistence of a long-serving federal judge, the crusty 88-year-old Justin Quackenbush, the case of Salim v Mitchell was set for trial in September, after the judge refused the defendants' motions for summary judgment.
Unmoved by the defendants' startling reliance on the Nazi-era acquittal of a gas technician for Zyklon-B, the judge ruled that the Alien Tort Statute was applicable to the charges, including torture, involuntary human experimentation and war crimes.
The settlement against Mitchell and Jessen suggests that other men (the Feinstein Report lists over 100), tortured by the CIA under the psychologists' protocols, could receive compensation at the expense of the agency.
How? The psychologists wisely obtained an indemnity from the CIA, now activated by settlement of the initial case against them.
As promised, the Trump administration has now returned all copies of the Senate's full 6,700-page Feinstein Report to the Senate in the hope that the "torture report" will be undiscoverable in civil or criminal litigation.
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In June, the five defendants in the Guantánamo "9/ll" military commission appealed a decision of the Court of Military Commission Review that had reinstated dismissed chargesfor which limitations had run. Lawfare had more on this order and the al Qosi order, below.
The 9/11 men appealed on grounds that included a claim that one of the CMCR judges should have recused himself, and the DC court of appeals, agreeing, reversed. More here from Steve Vladeck.
In the other order, the renegade CMCR remanded the al Qosi appeal to the commission with an odd sua sponte direction to determine whether the now freed "convict" might have since re-offended (i.e. become an "enemy combatant"), as indeed it appears he has, and implied his post-release conduct might affect his appeal. There was no statutory basis for the direction, and surely, post-conviction behaviour is irrelevant.
At the pretrial hearings at another of Guantanamo's farcical military commissions - that of Abd al-Rahim al-Nashiri, the government's own witness, Ahmed al Darbi, has been testifying about the depraved treatment he received at the hands of his US interrogators.
The prosecution must have reasoned this would lessen the effect such damning testimony would have if obtained in cross-examination. Al-Nashiri, it will be recalled, is on trial for sundry fake "war crimes" - offences not committed in a time, or a place, of war - trivial matters to the Pentagon.
The 9/11 defence lawyers are asking that the presiding judge, Col James L Pohl withdraw from the case, based on the secret, ex parte permission he gave to the prosecution to destroy evidence that was under a protective court order.
In the meantime, the 9/11 prosecutors are diabolically claiming that Judge Pohl can't read the defence brief, for "security" reasons.
The lead defendant, Khalid Sheikh Mohamed, responded:
"I'm used to the idea that they can kill me based on things I can't see. But now it seems they want to kill me based on things the judge can't see."
Franz Kafka was, after all, a lawyer.