From Roger Fitch and our Friends Down Under

The triumph of tribal epistemology

ROGER FITCH ESQ • THURSDAY, NOVEMBER 28, 2019

Roger Fitch examines where Congress is heading with its impeachment investigation ... Factoids and the Republican defence ... Picking-up where Mueller left off ... The impeachable provision of bribery ... False equivalence narratives from the media ... New distractions from Bill Barr ... And Trump sanctions war crimes 

"The trouble with most folks isn't so much their ignorance, as knowing so many things that ain't so."
- 19th century American humorist Josh Billings, anticipating Donald Trump supporters.

"A decades-long effort on the right has resulted in a parallel set of institutions meant to encourage tribal epistemology. They mimic the form of mainstream media, think tanks, and the academy, but without the restraint of transpartisan principles. They are designed to advance the interests of the right, to tell stories and produce facts that support the tribe ... Talk radio and the birth of Fox News in the 1990s were turning points. They eventually expanded to create an entire, complete-unto-itself conservative information universe ... capable of cranking out stories and facts (or "facts") in support of the conservative cause 24 hours a day, steadily shaping the worldview of their white suburban audience around a forever war with The Libs, who are always just on the verge of destroying America."
- David Roberts on Republican tribalism.

The recently-completed Mueller Report has been characterised as a film noir in which, "The investigators uncovered the plot, but the society is too rotten to do anything about it". 

Will impeachment face the same fate? Even if the US House of Representatives impeaches Trump, his rubber-stamp US Senate will block his removal from office - unless, perhaps, there's a secret senate ballot.

The House Intelligence Committee's impeachment inquiry picked up where Mueller left off, not yet addressing his findings on obstructions of justice (or new ones, see also here and here), and leaving for later the truth of Trump's written answers to Mueller's questions; more here. 

House Democrats have the advantage of two new DC district court decisions. One (opinion here) upholds the legality of the impeachment and the right to Mueller's grand jury materials (more developments here); the other confirms that former White House Counsel Don McGahn must testify - consequences here. 

The Intelligence Committee proceedings began with L'affaire Ukrainienne and concentrated on bribery, specifically mentioned in the constitution's Article II impeachment provisions. It's broader than the federal bribery statute, and is based on English common law at the time the constitution was adopted. This fact led to debate between Murdoch's Wall Street Journal and the legal website Lawfare over the interpretation of bribery by Blackstone et al.

House Republicans have responded with a disingenuous defence of failed or incomplete bribery, and deny that attempted bribery is impeachable. 

A dramatic breakthrough in the Intelligence Committee proceedings occurred when a genial but vengeful witness, EU Ambassador Gordon Sondland, rolled over, also implicating Trump, Vice President Pence, Secretary of State Pompeo and Trump's budget director/acting chief of staff/all-around hatchet man, Mick Mulvaney. 

Newly-disclosed governmental emails confirm Mulvaney's and Pompeo's participation.

Double standards prevail among house Republicans, who have cast the proceedings as political and illegitimate. Thus Clinton impeachment prosecutor Ken Starr initially argued that Trump's official conduct didn't rise to the level of impeachable, a standard apparently met by Clinton's lying about consensual sex in a civil court deposition (after Sondland's testimony, Starr changed his mind). 

The pessimistic Paul Krugman sees the impeachment defence strategy as "a test of the depths to which the Republican party will sink". Perhaps, however, the Republican reaction is explained best in a thoughtful article in Vox, where David Roberts convincingly argues that the Republican response to Trump's pending impeachment represents the zenith of a decades-long campaign to subvert the perception of truth, a triumph of "tribal epistomology".

House Intelligence Committee: bribery under the microscope

The media are presenting the proceedings as a sort of wrestling match, with false equivalence narratives; there's a diversionary argument that public support is essential for removing Trump, implicitly reinforcing Republican claims that impeachment is purely political rather than - as impeachment historians point out - a constitutional remedy, independent of elections, for removing rotten rulers. Public support could, of course, influence wavering senate "jurors" facing re-election. 

Trump's personal strategy is to charge the mostly career public servants who are speaking out with "retrospective incompetence"; naturally, he wants to sack the intelligence Inspector General who, as legally required, gave congress the whistleblower's account of the president's Ukraine extortion attempt. 

Impeachment is now moving to the House Judiciary Committee, where further evidence will be taken and impeachment articles drafted and debated. Some useful testimony could still come from administration scoundrels, if the house Democrats will take the time to hear them. 

Whatever happens, predictions for American democracy are dire, post-Trump. New laws will be needed, such as those introduced after Watergate.

*   *   *

While impeachment looms, Trump's disbarrable AG, Bill Barr, has been cooking up new distractions, hoping the president's fabricated FBI conspiracy theories will ignite some Reichstag fire. 

Barr's narrative contradicts Trump's own acknowledgement to the Russians that he knew they interfered in the 2016 election - and that was OK. In house impeachment testimony, the Russian expert Dr Fiona Hill specifically rejected the Republicans' crackpot theories of Ukrainian interference in 2016. 

Fiona Hill, previously with the US National Security Council 

Impunity is meanwhile everywhere. In an action viewed as damaging the US military, Trump handed out pardons to convicted and accused US war criminals, though it's hard to see what votes he will get out of it, especially among service members, some of whom dobbed in their lawless officers and NCOs.  

Defence opposed the pardons, particularly that of Chief Petty Officer Eddie Gallagher, one of the most vicious convicted SEALs. Trump, responding to a Fox News beat-up, sought to completely exonerate Gallagher, while the Navy tried to expel him from the SEALs. In an extraordinary action, the president personally ordered Gallagher's retention in the unit, and sacked the Navy Secretary. 

What's next? Will Trump pardon the Blackwater mercenaries, convicted and sentenced in the shocking Nisour Square massacre in Baghdad?

Trump's sanctioning of war crimes begs the question, will he attempt to reintroduce torture, a practice he has condoned in the past. It's a timely subject, as a new film about the Senate Torture Report has put the notorious CIA torture program - implemented by George Bush - back in the news. 

Barack Obama effectively pardoned participants in the Bush administration program, with dilatory and cosmetic inquiries conducted while the statutes of limitations - except for murder - ran. We now know that, even had Obama's Justice Department prosecuted and jailed those involved, Mr Trump would have pardoned them, given them medals, and, as he actually has done in the appointment of CIA Director Gina Haspel, rewarded them.  

Trump has also successfully stonewalled the proposed ICC investigation into torture in Afghanistan and other Rome Statute countries where CIA torture occurred; the matter is now under appeal at the Hague. More here on the international efforts to hold accountable those countries implicated in CIA black site torture. 

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From Roger Fitch and our friends down under at Justinian...

arr, Barr, black sheep

ROGER FITCH ESQ • FRIDAY, OCTOBER 25, 2019

Impeachment ... Washington's cast of villains ... William Barr joined to Trump at the hip ... The politication of the Department of Justice ... The president's taxes ... His claims of immunity ... The odious consigliere Rudolph Giuliani ... 150 judicial appointments to do Republican Party bidding ... SCOTUS rallies to partisan causes ... Roger Fitch reports from a strife-torn nation  

Throughout US government departments, traditional political pillaging and looting is being carried out by a record number of industry lobbyists and special interest placemen, but the public service, the real Deep State, is rebelling.                                      

The central crime scene is the White House: America is being ransacked by a president who may ignore his own sacking at the next election, if he lasts that long.

Trump rarely acts alone, however.  The dramatis personae in this crime noir can be grouped as follows:

First, the president. Before he was elected, Donald Trump was mostly known as a serial bankrupt and shady businessman, and/or an entertainer thrown up by popular culture. After 1000 days in office, he's earned additional media epithets: rotten, vulgar, habitual criminal, international mobster, and (after George W Bush) worst president ever. 

Daily, his behaviour becomes more shameless, e.g, selecting his own resort for the next meeting of the G-7, a violation of both the foreign and domestic emoluments clauses in the Constitution, a move that so alarmed Trump's allies that he backed out of the deal. Meanwhile, "ghost-bookings" at Trump properties provide an easy and efficient medium for ingratiation, or as they say here, "paying to play".

Second, his family circle, e.g, son-in-law Jared Kushner, more here and here. 

Third, his cabinet. Especially conspicuous: Attorney General William Barr. Like John Mitchell, Ed Meese and the frightful Alberto Gonzales before him, Barr is seen as a duplicitous AG paired with a devious president, lending Justice Department aid to the partisan follies and vendettas of a Republican leader, in order to kneecap the Democrat opposition (as George Bush père's AG, Barr arranged the Iran-Contra pardons). 

Barr has meddled in Britain, Australia and Italy, to further Trump's 2016 election conspiracy theories; he's now gone so far as to start a criminal investigation with the DoJ effectively investigating itself for starting an investigation that led to the Mueller Report (co-incidentally, the grand jury evidence that formed the basis of that report has just been ordered released to congressional investigators). 

Curiously, Barr saw nothing worth investigating in the Biden-based Affaire Ukrainienne; his Justice Department found Trump's request for dirt on a political opponent was not a "thing of value", despite DoJ precedents to the contrary. 

The Justice Department is now fully politicised, intervening on Donald Trump's behalf in several lawsuits, though inconsistently, depending on who's opposing the president. 

Barr: a duplicitious meddler & fixer  

In the case of subpoenas by two house committees, DoJ argued that the subpoenas lack  a "legitimate legislative purpose" (i.e, aren't tied to pending legislation), and that congress should leave investigations of presidential conduct to prosecutors. 

Then, when NY State prosecutors subpoenaed Trump's tax returns in connection with the investigation of hush money payments, DoJ claimed that sitting presidents couldn't be investigated by a prosecutor, for any reason, an argument never before advanced, and ultimately rejected by the federal court where the matter was contested.

On appeal, Trump's lawyer asserted that his client couldn't be investigated or prosecuted even should he (in Trump's words) "stand in the middle of Fifth Avenue and shoot somebody".

As for personal subpoenas, under two Nixon cases - one involving a Judge Nixon - executive branch officials must comply with congressional subpoenas; the White House has no lawful means to prevent their testimony. Steve Vladeck has more on executive privilege and subpoenas.

The president has meanwhile lost a suit to block the congressional subpoena for tax returns held by his accountants, and independently-obtained tax documents have already exposed probable frauds by Trump.

New York now has a law allowing the state to provide tax returns to congress; the state has also amended double-jeopardy laws so that state prosecutions may be brought against those pardoned for federal crimes.

Trump's favourite impeachment lawyer being himself, it's no surprise he claims to be immune from any criminal process, while maintaining he can't be investigated by congress (reaction here and here). Yet history strongly supports impeachment for behaviour far less dire than Trump's. 

Last of the Trump cast: freelance mischief-makers like Rudolph Giuliani. Trump and his AG have flouted all Democrat subpoenas so far, but Giuliani is not even a government employee, and can certainly be forced to testify. One law professor noted that Trump's odious consigliere could be arrested by the Sergeant-at-Arms through a congressional contempt process not requiring DoJ enforcement. The Democrat congress could also jail obstructive government officials through inherent contempt powers. 

Giuliani's (alleged) criminal associates were arrested at Dulles Airport as they sought to flee the country. They're charged in Manhattan federal court with campaign law violations involving Ukraine and one of them is already alleging executive privilege. Giuliani is himself said to be under criminal investigation. There's much more to this particular Ukraine scandal.

The constitution says bribery (a defined criminal offence) is impeachable. Trump's actions may also involve "honest services fraud". Even his stonewalling is impeachable. There are many other reasons. 

Trump could take down the Republican Party itself; as one journo colourfully put it, Republicans who circle the wagon now may do so around "a stick of lit dynamite". Will Trump have a  "Ceausescu moment" at one of his Nuremberg rallies? 

It's definitely worse than Watergate. 

Giuliani: required to testify

*   *   *

Appalling lower court judges are settling in, a cohort of 150 judicial appointments that Donald Trump's rubber-stamp senate has imposed on the creaky American republic. Many of them appear to be unabashed agents of Republican party policy; among other things, they are doing irreparable harm through election law subversions that keep their party in power.

The supreme court is now the bigger worry, with its feared support for heretofore unconstitutional manipulations of government and partisan rightwing causes; some even see an existential threat to US democracy. As the court begins to resemble those in Hungary, Poland and Turkey, the question arises whether it needs to be unpacked (more here) by appointing more justices, perhaps many more. 

In the term that began in October, cruelty is on the docket and civil rights on the chopping block. Five matters are the focus of attention; these and some others could change the course of history, including the final destruction of the Democrats' signature Voting Rights Act 1965, what's left of it. 

Of particular concern are three cases involving employment discrimination related to sexual preference and gender identification in which the Trump administration is defending the employers.

Other cases consider whether, consistent with the US constitution, a state can repeal the insanity defence in a criminal case, or allow non-unanimous juries, while the Espinosa case presents a grave threat to the constitution's first amendment separation of church and state

There will be more to come, perhaps even nullification of climate legislation, as an alarming new study suggests.

Already, the rogue Republican federal judge from Texas, Reed O'Connor, is teeing up a new case, likely to reach the supreme court, that brings together several strands of the Republican culture wars: a ruling that protections for transgender individuals in the ACA (Obamacare) violate "religious freedom".

It was Judge O'Connor who, in an "off-the-wall" decision, declared the ACA, all of it, unconstitutional, and it was also O'Connor who heavily damaged Native American adoptions by striking down the Indian Child Welfare Act. 

From Roger Fitch and our friends down under at Justinian

Abuse of power in Trump's America ... The windback of environmental protections ... War with California ... "Natural law" replaces human rights ... Distortion of the US judiciary ... Guantánamo update ... Roger Fitch visits Washington's new spy museum 

Tinker, Tailor, Soldier, Sailor,
Rich Man, Poor Man, Beggar Man, Thief -
nursery rhyme

The commander-in-chief is rich and a thief, but he's very bad at tinkering: if anything, Donald Trump is a tailor of chaos, daily ripping and tearing the fabric of American society, reminding one historian of the brutish Roman emperor Commodus.  Impeachment is not likely, however, with a loyalist senate and electoral removal stymied by the Republican opposition's legendary dirty tricks.

Even so, the Trump administration's pillaging and looting should lead to prosecutions when Democrats regain control of the politicised Justice Department, where there's presently a blanket refusal to enforce contempt citations of the Democrat congress, including against AG Bill Barr.

Happily, an appeals court decision has momentarily arrested Trump's ceaseless self-dealing, in a case about domestic emoluments; there's still the problem of foreign emoluments, but to be fair, the far-sighted Saudis bought the 45th floor of Trump Tower before Trump's election. 

Corruption is often masked as deregulation, such as the 85 attempts to undo or subvert environmental safeguards, with no obvious beneficiary but deep-pocketed polluters and hydrocarbon bagmen. 

Unravelling settlements for corporate misconduct is another feature of Trump's administration, with government fixers making life easier for banking malefactors, reducing or overruling penalties imposed by the previous administration.

There's a NYT report on the Trump administration's corrupt settlement of corporate penalties, but nothing can touch the record achieved the last time Republicans were in office: the reduction of a Big Tobacco penalty from $130 billion to $10 billion, an accomplishment so astounding that the government lawyer arranging it, Robert McCallum Jr, was rewarded with the sought-after position of US ambassador to Australia.

The Energy Department is meanwhile bringing back incandescent lights. Phasing them out was a Bush idea, but the regulations were Obama's and that's enough for America's (racist) president, along with his nutty belief that energy-saving globes make him look orange.

The EPA has announced it will revoke California's authority to enforce higher pollution standards that the auto manufacturers themselves have embraced. There's no discernible legal basis for the revocation, and to further punish a state that rejects everything Trumpian the DoJ is thuggishly threatening to prosecute the participating manufacturers for committing antitrust violations in cooperating with California. 

It all springs from Trump's subservience to the perceived needs of the doomed but still dominant industry, Big Carbon, led by a new EPA administrator who's had horrible successes, former coal industry executive Andrew Wheeler. It's part of a rollback no one wants and progressive states are fighting. 

Meanwhile, the Power Company Climate Coalition, an association of utility companies, also opposes Trump's new carbon emissions rule, which would replace Obama's Clean Power Plan.

Political sackings continue at Homeland Security, the department responsible for immigration. The latest: General Counsel John Mitnick. Departmental lawyers have struggled to provide independent legal advice and defend in court government actions that are often unlawful; the president's political adviser, Stephen Miller, is probably behind the sacking. 

Current ICE outrages include rural seclusion (fewer lawyers), tent courts where journalists are excluded, and problematic payments for empty prisons.

*   *   *

Fresh Orwellianisms continue to bubble-up from the cranks who inhabit Trump departments:  "freedom gas" for methane and natural gas, and "natural law" for inserting religious dogma into human rights law.

The suspicious "natural law" distortion is part of a new "Commission on Inalienable Rights" inspired by rogue academics at sundry religious universities. It will provide "fresh thinking about human rights" and propose "reforms of human rights discourse where it has departed from ... natural law and natural rights" (read same-sex marriage and gay rights). 

"Natural law" could gain traction with some of Trump's judges, including a supreme court about to review Trump-backed discriminatory employment practices already struck down by several appeals circuits and opposed by the EEOC.

There's more here on an employment policy perversely justified under claims of religious beliefs and likely to be joined at the court by another "religious right" to discriminate (in weddings), just upheld in a 4-3 Arizona supreme court decision. 

The Washington Post has an important article on the Federalist Society's ambitious 30-year program, now approaching fruition, to distort the US judiciary, while US public TV's Frontline has a new documentary on the chief target, the supreme court.

*   *   *

As everyone knows, the Guantánamo internment camp is a colossal waste of public money, at a cost of $13 million a year per prisoner. Sadly, the people who facilitated it remain unpunished. Seventeen years after the shocking Yoo-Bybee "torture memo", its authors are still enjoying comfortable positions as a tenured Berkeley law professor, and 9^th circuit justice, respectively, while their partner in crime, Gina Haspel, has been made CIA director and sanitised by the Wall Street Journal, which often prints John Yoo op-eds.

The results of their gruesome handiwork continue to seep out: declassified CIA cables obtained by the Intercept cast new light on the torture of Khalid Sheikh Mohammed, the lead defendant in the Pentagon's 9/11 commission. An FBI agent is testifying about CIA "black site" procedures in the related al Baluchi case.

The 9th circuit has meanwhile ruled in a case brought by Abu Zubaydah, a Guantánamo prisoner and the first person subjected to George Bush's "enhanced interrogation". The court held that Zubaydah's ordeal at the CIA's black site in Poland was not entitled to protection as a state secret, paving the way for his lawyers to question the men who designed the torture, i.e. James Mitchell (see below) and Bruce Jessen. Both men have settled civil damages claims in a law suit indemnified by the CIA. 

The 9th circuit called Zubaydah's treatment "torture", but the Pentagon prefers other words for the "tendency to deviate from ethical standards under the pressure of circumstances and in the absence of external oversight". 

In a new directive it's called "behavioural drift", unethical or abusive behaviour "commonly observed in detention and other settings in which individuals have control or power over others' activities of daily living or general functioning".

*   *   *

Waterboard display at the International Spy Museum

Washington has a tasteless new Spy Museum, and two CIA ruffians, the contract "psychologist" James Mitchell and interrogation-tape destroyer José Rodriguez, have contributed audiovisuals for the museum's popular Guantánamo exhibit, to provide a "balanced" view of the CIA's  at times controversial aggressive debriefings.

The museum's exhibits include demonstration water-boards and a mock-up of the house where Osama bin Laden met his extrajudicial end. 

It's an upbeat American foil to Lithuania's grim "KGB museum", with its Soviet torture exhibit; Donald Rumsfeld made a solemn pilgrimage there in October 2005, as the CIA tormented Abu Zubaydah nearby.

Postscript:  Donald Trump has nominated an actual torture proponent to lead US human rights policy.

From Roger Fitch and our friends down under at Justinian....

Companies are hereby ordered ...

ROGER FITCH ESQ • THURSDAY, SEPTEMBER 5, 2019

Trump as the Mad King ... Dystopian plans ... SCOTUS agenda ... "Religious" claims ... Gun control ... Voting rights ...Republicans on a roll ... Latest news from Guantánamo ... Roger Fitch reports from the turmoil of Washington 

"Who can deny but the president general will be a king to all intents and purposes, and one of the most dangerous kind too; a king elected to command a standing army... The President-general, who is to be our king after this government is established, is vested with powers exceeding those of the most despotic monarch we know of in modern times" - Benjamin Workman ("Philadelphiensus"), an Anti-Federalist.

"Our great American companies are hereby ordered to immediately start looking for an alternative to China, including bringing your companies HOME and making your products in the USA" – Trump tweet.

The situation is grave: a president who erratically rants before paid Statisten at Nuremberg-style rallies, a man known for open malevolence (e.g, towards immigrants), personal vindictiveness (more here) and non-stop lying. Beyond that, a president of depthless immaturity and almost clinical grandiose delusions.

In a new burst of royalism, America's very own King Canute has "ordered" US companies to stop dealing with China, claiming justification under the International Emergency Economic Powers Act of 1977, more here - yet another abuse of the executive's emergency powers.  

In July and August, Donald Trump said Denmark should sell Greenland to the US (more here), claimed Jewish Democrats were “disloyal" - to Israel (more here) and suggested certain (dusky or Muslim) female Democrats, members of congress, yes, even those born in America, "go back to where they came from."

Mainstream media edged closer to finding Trump mentally unbalanced, while a new book by a top human rights lawyer counted the ways he resembles Adolf Hitler. 

Leaving aside Trump's innate transgressive behaviour (e.g, promising pardons to subordinates who break the law), it's the president's personal corruption that interests citizen groups such as CREW, who have documented 2000 plus+ conflicts of interest.

Sometimes the Trump administration's dystopian plans fail: the EPA's proposed roll-back of car pollution standards seems doomed, with Big Auto declining to join in Big Carbon's schemes. Other corporately-curated sabotages of climate science are thriving, however, and the EPA's still on course to destroy the Endangered Species Act.

At the NLRB, the politically-appointed board has put its thumb on the scale for employers, enforcing compulsory individual arbitration agreements that were concocted and imposed after collective actions by employees, e.g. the class litigation so despised  by the supreme court's majority. 

At the Bureau of Land Management, Trump has appointed someone who doesn't believe in public land to oversee 247.3 million acres of public lands and nearly 700 million acres of subsurface mineral estate.

*   *   *

SCOTUS: the right place for gun nuts 

A number of important matters are headed for the supreme court in its October term. At the top of the docket, vital to the Trump administration's campaign to reverse civil rights gains, are conflicting lower court rulings on sexual discrimination in employment. There will be further contentious decisions on appeal (see one opinion here) which consider "religious" claims of immunity from anti-discrimination laws, based on "faith", "moral" or "free speech" grounds.

Gun regulation laws are also on the menu. Timid efforts at gun control have been discussed by politicians, but the biggest obstacle is the extreme wing of the supreme court, the ideological cohort who imposed a libertarian, ahistorical gloss on the 2^nd amendment in the Heller case – one of the most controversial decisions in supreme court history. 

Unwisely, or not, a group of Democrat senators has joined a brief in the latest case, implying the supreme court's decision was likely to be partisan.

The supreme court also will hear the notorious (Mexican) border shooting case and will take up non-unanimous criminal verdicts. It's still the law in Oregon, and until 2018, it was the law in Louisiana. A case in the latter state, testing the prior-2018 decisions, has been accepted for the new term, and will likely interest the intractable "originalists" Neil Gorsuch and Clarence Thomas. 

Stuffing the supreme court with party people is beginning to pay off for Republicans in other ways, with the partisan majority now poised to interfere in lower court decisions at an early stage in order to advance Mr Trump's agenda. Steve Vladeck comments on the border wall expenditure case, where America's president flagrantly spent money after congress refused to appropriate it.

*   *   *

The fight against voter purging

The supreme court has taken a hands-off approach towards voter rights, expressed most forcefully by its refusal to address partisan gerrymandering in the recent Rucho v Common Cause; it's an indifference likely to last as long as it benefits Republicans, and perfectly consistent with the chief justice's long-held hostility to constitutional voting rights.

"Gerrymandering" actually predates the US bill of rights, but "purging" - the practice of unilaterally knocking suspect citizens off voter rolls - is a modern device that Republican-controlled states use to disenfranchise suspect voters: 17 million of them between 2016 and 2018.

If purging doesn't eliminate prospective Democrats, Republican states have other schemes, e.g. fiddling voting machines, or closing voting sites, where uncongenial minorities attempt to vote. 

If Democrats succeed in voting in Mississippi, the state's byzantine election laws may still prevent a victorious Democrat taking office. In defending a new lawsuit, the state cites the CJ's Rucho opinion.

Citizen initiatives allow some states to set up AEC-type electoral commissions, but Republican-controlled legislatures e.g, in Michigan, are fighting back, determined to maintain gerrymanders that give them majority control. 

Republicans are also organising to base congressional districts entirely on citizenship, a clear breach of the constitution's language. If all else fails, there are plans for a constitutional redraft.

Until such time as Republicans succeed in amending the constitution, there's the electoral college and, interestingly, "faithless electors" (those who vote their conscience instead of the party slate) have just been vindicated by the 10^th circuit, more here and here. 

*   *   *

At Guantánamo, a new "9/11" judge has been considering issues such as:

•  the CIA's "turning" a defence team interpreter; 
• the over-classification of evidence essential to the defence; 
• whether torture can be put on the docket;
• if so, whether the Bush administration's torture meets the standard of "outrageous government conduct" justifying dismissal of the charges or other serious sanction against the government; and 
• the date of the trial.

Meanwhile, a lawyer for Abd al-Rahim al-Nashiri has been unexpectedly passed over for promotion by the Pentagon, possibly for too-vigorous representation of his client.  

The Nashiri case - probably the most lawless of all the commissions - is receiving attention in a new film about the CIA torture program; Nashiri was one of the program's first victims and received the personal attention of the former Thai torture camp commandant - now CIA director - Gina Haspel. 

And finally: it's a bit late in the day, but an Obama-bolstered DC circuit panel has brought back full habeas for Guantánamo internees, more here.