Fitch's Washington
Trump's defeat sees the Republican gerrymander in full swing ... Moving the electoral goalposts ... Filibuster won't be busted ... Lies of the past paved the way for the Big Lie of today ... Military trials and the flouting of law ... The taint of torture ... The failure of Guantánamo ... Roger Fitch files from Washington
"[The Republican Party is] basically the Titanic….in the middle of this slow sink. We have a band playing on the deck, telling everybody it's fine, and meanwhile …Donald Trump is running around trying to find women's clothing to get on the first lifeboat." - Adam Kinzinger (R)
"... Trumpism does not merely extol incompetence; it also elevates racist, misogynistic, and all-purpose brutality for its own sake. It's fascism but the trains still don't run on time." - Michael Dorf
"The country is finished. It's all over. But you know, with a new republic like this, if you missed being here at the beginning, the next best thing is to be here at the end." - Gore Vidal
Like the April aftermath of the Civil War, there are fires burning here and there throughout the country; regional pillaging and marauding (e.g, Arizona) continue, as the central government attempts to contain and put out the fires of rebellion. As in that war, jayhawks and banditti rove the countryside, looking for trouble, or find it back home.
Republicans have lost both presidency and senate. They lost the house, too, receiving less than half the popular vote, but that's usual even when they gain a majority of the seats.
This year, however, 147 house Republicans supported or tolerated an anti-government riot bent on overthrowing the results of the election: two-thirds of the caucus.
Though less seditious, Republican senators have joined to defeat an investigation into the insurrection: the cult leader opposed it. Sometimes, the Trump rump even seems prepared to destroy America's (imperfect) democracy in order to save it, and some fear America could go full-blown authoritarian. More here.
The lies of the past, never effectively countered by Democrats, have paved the way for 2020's Big Lie. Will Democrats finally confront Republicans when they present an existential threat to two-party democracy? It doesn't look good, based on past experience.
Indeed, the 30-odd states with Republican legislatures, new census figures in hand, will soon concoct barbarously-gerrymandered electoral districts in which they get to select their very own voters. The US supreme court has refused to intervene, and the only hope lies in state constitutions, which sometimes offer protections the federal constitution lacks, e.g, the right to vote.
Arizona, a state the Republicans lost, is the new battleground in the GOP's last-stand electoral terrorism, as state parties strive to move the electoral goal-posts. The Party won't risk open voting, even in states they won with existing cheating, e.g, Florida, Texas (developments here), and other states. Soon, states under Republican control may even refuse to certify Democrat victories.
Developments in state legislation for good and ill are here.
The only federal agency charged with national election oversight, the FEC, will remain Trump-complicit until Mr Biden gets his new commissioners confirmed; meanwhile, house Democrats have comprehensive legislation to deal with voter suppression, the For the People Act and the John Lewis Voting Rights Act.
In the evenly-divided senate, both Bills face the filibuster rule that requires 60 assents in the 100-member senate before legislation can be brought to vote. Although the Democrats now have a senate majority (with the vice-president's vote) sufficient to abolish the filibuster, two Democrat senators support the filibuster rule, Arizona's Kyrsten Sinema (a former member of the house coalition of backsliding Democrats known as Blue Dogs) and West Virginia's Joe Manchin, now being called America's de facto prime minister.
Senator Sinema: defender of the filibuster
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Donald Trump elevated and glorified the contempt of law throughout American life. Perhaps, as the influence of his political holdovers recedes and new hires arrive, the Justice Department will turn its attention to some of the country's now-entrenched contempts of law: e.g, the offences of white collar criminals, and those of state authorities, the Arizona senate with its clumsy and transparently lawless "audit" of last November's election ballots.
Impunity for illegality is partly a consequence of the failure by Obama and his attorney general to investigate and prosecute crimes that occurred during the George Bush administration. Democrats have a poor record of standing up to Republicans, and when gaining office, they rarely prosecute their past offences.
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Aside from Iraq, George Bush's most transgressive, flagrant flouting of law was establishing a scheme of indefinite detention and military trials at Guantánamo (history here); there the well-documented contempt for international and US domestic law has persisted for years, with a scaffold of purported legality cobbled from extrajudicial acts, political inaction and appellate court acquiescence.
It's been mostly unlawful from the outset: the secret confinement and torture of invented "illegal enemy combatants" (many of them lawful belligerents); the treatment of men as "war prisoners" who were apprehended (rarely by Americans) for suspected civilian terrorism.
Compounding all that, the arbitrary denial of prisoner of war status hearings, in an "international" conflict that should have attracted full Geneva Convention protections.
Even the protections of Common Article Three, applicable to "non-international" conflicts, were denied, and Pentagon officials who attempted to provide Geneva protections were sacked (Rick Baccus), bullied (Stuart Couch) and even jailed (Matthew Diaz).
Lt Comdr Diaz: jailed for sending Guantánamo names to the Centre for Constitutional Rights
Internationally non-compliant military trials were set up, trials that, as law profs David Glazier and David Frakt argued, could themselves be classified as war crimes, and it was all done to avoid legal civilian trials, now rendered impossible because they are tainted by torture and cruelty in violation of the Convention Against Torture.
Most "convictions" for non-crimes have been overturned on appeal, and perhaps only one charge has been validly pursued, the current one against Abd al-Hadi al-Iraq for killing civilians in a war zone, during a war.
Throughout, the US has denied the men the most basic protection of the US constitution and Anglo-American common law: the unfettered habeas corpus that would have resulted in the release of many of them years ago.
The prisoners' entitlement to full habeas and due process is still being contested by the government, in the Al-Hela case pending before an en banc DC Court of Appeals, a case destined for the supreme court.
Also pending is the Abu Zubaydah appeal for a civil subpoena, where the state secrets doctrine is being shamefully employed to protect CIA torturers whose identity is a matter of public record. More here.
Court observers Karen Greenberg and Linda Greenhouse comment on the current state of litigation.
The Biden administration is meanwhile resolving another Bush-Obama miscarriage of justice, that of Majid Khan, by cutting a deal that will avoid discussion, at his sentencing, of CIA torture.
Three other prisoners are to be released, including the oldest, Saifullah Paracha, another injustice righted. Still held are people like Mohammed Al-Qahtani: the Pentagon's own Convening Authority declined to refer him for trial, conceding he'd been tortured.
