From Roger Fitch and our friends down under. 2-20.2022

 

Legitimate political discourse

ROGER FITCH ESQ • FRIDAY, FEBRUARY 18, 2022

Net closing, all too slowly, on Trump ... Deserted by accountants ... Flushing papers ... Destruction and obstruction ... Supreme Court odds-on the uphold racial gerrymanders ... Voting rights for the chopper ... Roger Fitch reports from Washington 

"Republicans always cave to Trump. And so it will be when it comes to the story of whether the riot was bad or good. It's just a matter of time." - Salon prediction, February 3, 2022. 

"WHEREAS, Representatives Cheney and Kinzinger are participating in a Democrat-led persecution of ordinary citizens engaged in legitimate political discourse, and [are]utilizing their past professed political affiliation to mask Democrat abuse of prosecutorial power for partisan purposes, … be it … RESOLVED, That the Republican National Committee … formally censures Representatives Liz Cheney of Wyoming and Adam Kinzinger of Illinois and shall immediately cease any and all support of them as members of the Republican Party ..." - Republican National Committee, February 4, 2022 

In the same week that Donald Trump proudly admitted his object was to overthrow the election, the RNC described January 6 as "legitimate political discourse", and censured the two Republicans on the house committee investigating it. 

It's seems extraordinary that the ex-president hasn't yet been charged with one or another of the many crimes he committed in office, e.g, those identified in the Mueller Report, many of which are approaching five-year limitations. 

The only thing sparing Trump from immediate federal charges seems to be over-caution at Main Justice, where the OLC and its opinions are yet to be "detrumpified"; anyone but Trump would already be facing federal charges. 

Even so, Trump is in peril. His bookkeepers have disowned their accounts, and New York State is closing in. His strategy remains to obstruct investigations until a new Republican house majority, or his own election in 2024, can quash federal hearings and criminal charges - but that won't help him in state courts.

Leaving aside the 14th amendment's exclusion of insurrectionists from federal office, Trump may have forfeited his office and become disqualified in future, under the Presidential Records Act, or under 18USC§2071 (Concealment, Mutilation or Removal of Official Records). DoJ has been asked to investigate. 

Unsurprisingly, with a classy guy like Trump, allegations include flushing papers down the presidential dunny. Ironically, Nixon's "White House plumbers" were pursued by the Watergate committee for their role in plugging leaks of classified information, but Trump's White House plumbers are real tradies who cleared drains blocked with such matter, and could be called to testify by the January 6 committee.

It's all consistent with Trump's lifetime habit of concealment and his aversion to creating or retaining incriminating documents. 

Among the purloined documents, retrieved from Mar-a-Lago after six months of negotiations, are some marked classified, and there are serious consequences for removing classified documents from the National Archives, as Bill Clinton's national security adviser, Sandy Berger, learned. 

A National Archives court filing has revealed which documents Donald Trump wants to hide: diaries, schedules, activity and call logs, draft speeches, and White House staffers' files. 

Documents taken from the White House for "safekeeping" at Mar-a-Lago

Trump's abduction and destruction of documents is also under investigation by the House Oversight Committee.

Memos recovered so far have been damning, according to the NY Times, which has finally begun to acknowledge Trump's seditious behaviour. 

Among the most incriminating are those concerning a scheme concocted by Trump's shady lawyers to steal the election with sham electors - what happened to "counselling crime" as grounds for disbarment? 

Trump also had a scheme to seize and impound voting machines, but couldn't decide which government department to subvert, so purported executive orders were drafted for both Homeland Security and DoD (DoJ was also considered). 

Now, these fake executive orders and election slates, some torn up by Trump and restored by his staff, are finding their way to the January 6 committee.

Other possible crimes are being uncovered as the January 6 investigation unfolds. It's been revealed that Donald Trump's bagmen gave $1 million to the piggy bank of his former chief of staff Mark Meadows who conveniently declined to proceed with his January 6 committee deposition. Witness interference?

Trump has also been dangling future pardons to those currently being tried for the January 6 break-in, should he succeed in becoming president again. In fact, Trump considered pardoning the Capitol break-in mob before he left office. 

Trump's obsession with pardons is well-known. Even so, members of the January 6 committee have indicated that dangling them amounts to witness tampering.

Believing he might as well be hanged for a sheep as a lamb, Trump has moved on to incitements to violence against prosecutors, who, he complains, are 

"... trying to put me in jail. The[y] are vicious, horrible people. They're racists and they're very sick…mentally sick. They're going after me without any protection of my rights by the supreme court or most other courts."

Why don't the prosecutors just get on with it, convene grand juries and indict him?

Here's the latest litigation tracker for all of the crimes and civil actions (some overseas) involving the man and his companies.

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Jackson: Supreme Court frontrunner

The new hard-right supreme court super-majority is settling in for years of political and judicial mischief. The Atlantic looked at supreme court history and the perils of a new court with an 1890s perspective. 

A court retirement by one of the remnant liberals has been announced; President Biden is about to fill the vacancy on the court created by the planned retirement of Justice Stephen Breyer, a centrist member of the Democrat-appointed minority. 

Biden has already announced the appointee will be one of several well-known African-American women serving on lower courts. The frontrunner is believed to be the highly-qualified Ketanji Brown Jackson, currently serving on the DC circuit.

Headed for the court are the decisions of state and federal judges striking down, as racial gerrymanders, the latest congressional redistricting by states. The supreme court responded by reinstating an egregious Alabama racial gerrymander.

In a demonstrably partisan election-year interference, a 5-4 majority of the court used its "shadow docket" to lift a stay unanimously granted by a special three-judge federal court. Now, challenged districts whose legality is yet to be decided may be implemented in this year's elections. 

Chief Justice John Roberts joined the liberals; perhaps he now regrets personally gutting the Voting Rights Act 1965  in the infamous 2013 decision, Shelby County v Holder, another Alabama case.

It's only one lost seat for the Democrats, but five Republican-appointed justices couldn't resist the opportunity to put their thumbs on the scale in an election year . 

Court observer Linda Greenhouse called it the moment the court "crossed the Rubicon" of partisan activism; the court is now on track to completely hollow out the VRA before the 2024 election. 

Caesar crosses the Rubicon in 49 BCE

As Steve Vladeck points out, Justice Kavanaugh and the more extreme justices can't wait for a full briefing and oral argument before rendering a decision changing the law. They plan to use stay order pretexts and the shadow docket to change it now. 

The disheartening result is Merrill v Milligan.  

1-16-ROGER FITCH

  

Stealing the presidency

ROGER FITCH ESQ • SUNDAY, JANUARY 16, 2022

Murdoch discovered America's weak point ... The roots of electoral disfigurement ... Rigging the vote long into the future ... Supreme Court's role in political corruption ... Military prosecutions for civilian crimes ... Roger Fitch reports from Washington

"The trouble with most folks isn't so much their ignorance, as knowing so many things that ain't so" - Josh Billings 

"[Republicans] think it will be easier to end democracy with paperwork, rather than guns ... The idea is to gut democracy in such a way so that the majority of Americans don't even know it happened ..." - Salon

Historical analogies abound for the Putsch of January 6, 2021. Donald Trump, usually likened to the absolute worst president, Andrew Johnson, is being compared to the 19th-century "insurrectionist president", John Tyler, while Trump's insurrectionists, begging for pardons, remind us of Confederate soldiers.

America's shift to one-party autocracy could track the second Russian Revolution, with Trump-Bolsheviks. Or democracy could end from within, as under Mussolini.

US democracy endured far longer, but became shaky after the arrival of a visionary foreigner who found its weak point: information. Gifted in propaganda, Rupert Murdoch decided to harness the latent, previously undirected, ignorance of a substantial percentage of Americans. 

Within 25 years, he succeeded: US Republicans can now rely entirely on the dumbed-down, fact-free voters unleashed by Fox News. 

These voters accept Trump's Dolchstosslegende, the Election Lie. They doubt he bears responsibility for January 6, and intend to vote for more of the same.

Republican-controlled states ensure these votes are the ones counted by disenfranchising the opposition, e.g. through partisan election administration, where the legislature or party-selected election officials (such as Florida's Secretary of State in 2000, Katharine Harris) subvert election results.

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Planning a coup for 2024

The current woes of American democracy can be traced to state legislative coups that occurred during the 2010 decennial "redistricting", when Republican states established their most brazen gerrymanders, and to the subsequent rulings of the Republican-dominated supreme court: 2013's Shelby County v Holder, gutting the Voting Rights Act 1965, and 2019's Rucho v Common Cause, finding partisan election districts are "non-justiciable". 

The result has been even more outrageous redistricting in the 2020 cycle.

Republicans are now rigging elections for the next decade, planning to steal elections this year, in 2024, and thereafter.  

In other developments: 

• The Pentagon may have delayed sending in the National Guard on January 6 because it feared what Trump might do with them.

• Trump's January 6 game plan has been revealed by one of the conspirators.

• Big Law lobbyists and corporations have resumed donations to the Sedition Caucus.

• Business is booming for (often untruthful) election lawyers.

• Democrats face obstacles in limiting the power of rogue presidents and reining-in their mischief. 

• It's unclear if the DoJ is acting to investigate and charge the ex-president. Will the AG let Trump off the hook?

• Republican operatives could run out the clock on the apprehension and punishment of Trump, whose stalling tactics might succeed.

• If successful in house elections in 2022, Republicans could make Trump Speaker of the House.

• Unless convicted of a crime or forensically disgraced, Trump could probably steal the presidency in 2024.

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"The Supreme Court, in its infinite majesty, allows rich and poor Americans alike to donate millions of dollars to super PACs, to shower elected officials with lavish gifts while seeking favours, and to enjoy a stream of benefits from politicians unimpeded by federal prosecutors" - New Republic.

The supreme court has made political corruption easy in recent years, using a strained personal (and corporate) freedom of speech to strike down virtually all laws limiting, or compelling disclosure of, political contributions in the US. 

The court itself has been accused of donor influence, with dark money freely flowing in US senate judicial confirmations, e.g. for Trump's nominees to the supreme court.

Trump's appointments have undeniably changed the supreme court: veteran court observers Linda Greenhouse, Joan Biskupic and Dahlia Lithwick sense a newly-weaponised court, where ideologues such as Justice Alito feel emboldened. 

President Biden's workplace vaccine mandate was one of the first casualties. 

A reactionary supreme court could last 30 years, and only those precedents that back the conservative cause and narrative are likely to be respected.

Meanwhile, the often-awful lower court judges Trump appointed are not all a disappointment. The former president's cynical assumption that everything in life is transactional has not worked out quite as he hoped in the judiciary, with Trump-appointed judges ruling against his interests in DC district court (here and here). 

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Courthouse - Guantánamo Bay

It has been twenty years since George Bush set up his extraordinary military prison at Guantánamo Bay, Cuba. It's one of America's greatest injustices, and clearly a political albatross. 

There has been little amelioration of this extralegal blunder, including under President Biden. Although two more men have been released, bad behaviour by the CIA, FBI, Pentagon and prosecution still keeps surfacing.

The Biden administration is building a second military courtroom for its prosecutions, although it appears that, in all the years of these, only one case (the current Abdul Hadi case) has involved a validly-charged war crime recognised under international law. 

On his first day in office, Biden acquiesced in the charges brought by an outgoing Trump Pentagon official, against Riduan Isamuddin (Hambali), the Bali Bomber, for "war crimes" consisting of terror attacks in Southeast Asia, far removed from any armed conflict. The new courtroom is designed for three defendants - it seems intended for Hambali and his co-defendants.

The "9/11" case, (once planned for civil trial in Manhattan, now to be tried by military commission) is in the other Gitmo courtroom. Like Hambali's, the case is emblematic of the grave jurisdictional defects in the trials - it's general knowledge that the Afghan war began in October 2001.

In both cases, military prosecutions have been contrived for civilian crimes, by fraudulently folding terrorism offences into the armed conflict in Afghanistan. All the cases, other than Abdul Hadi's alleged attacks on civilians, suffer from the same jurisdictional defects, having occurred outside war, or theatres of war, or (as in David Hicks' case) involving unrecognised or retrospective non-war crimes. 

Abd al-Rahim al-Nashiri's charges actually include piracy (the MV Limburg bombing); it's Nashiri's case where the Biden administration faces scrutiny on the use of torture evidence.

The prosecutions suffer from jurisdictional defects compounded by torture, but a few convictions have been achieved by guilty pleas that won't be appealed, e.g. the plea just made by Majid Khan.

In a Stalinesque court appearance, Khan confessed to numerous crimes unknown to the law of war, but at least his attorneys negotiated the inclusion in his plea of his testimony about torture. 

The military jurors believed Khan, strongly condemning his torture, but at best, his evidence will result in a shorter military sentence.

Torture is cause for dismissal in federal court (Ahmed Ghailani excepted) - it's "government misconduct that shocks the conscience".

Due process matters. 

From Roger Fitch and our friends down under at Justinian

An excess of venality

ROGER FITCH ESQ • THURSDAY, NOVEMBER 18, 2021

Guns everywhere for everyone - Supreme Court to decide ... Judiciary stuffed with Trumpists ... Bannon mired in Congressional contempt ... Insurrection of January 6 ... Ex-president consumed by litigation ... From Roger Fitch, Our Man in Washington 

Trump's most lasting damage has been to the courts, through the appointment of partisan judges with an ideological agenda; the incipient harm has already become apparent in the supreme court's new term.

In a case already argued, the gun enthusiasts are back, and this time they're claiming a constitutional right to carry weapons everywhere without hindrance. As the Nation headlined, "Supreme Court Is Poised to Give a Giant Gift to Gun Nuts"

It's a matter left undecided in the court's infamous 2008 case, DC v Heller, but it's of major importance, as right-to-carry laws lead directly to increased violent crime. 

The latest lawsuit seeks to knock out New York State's highly effective, 108-year old gun regulations in order to complete the right-wing reinterpretation of the Second Amendment.

In Heller (2008), the court discarded 70 years of precedent and discovered a previously-unknown Second Amendment personal right to keep and bear arms without regard to the military exigency referred to in the amendment.

New York State Rifle & Pistol Association v Bruen concerns a purported right to carry arms outside the home, and has attracted over 80 briefs. Interestingly, the court will also be looking at the 1328 Statute of Northampton. More here on the statute, followed in the UK until 1970.  

The supposed ambiguity in the English statute, exploited by right-wing law profs, turns on the translation of the English law's Latin: was it carrying arms, or merely wearing armour, that was proscribed? New York Magazine has more. There's a further claim by weapon-afficionados that the English Bill of Rights of 1689 protects gun-toting. It's news to the English.

If grim forecasts are borne out, the supreme court is on the cusp of making the US almost unliveable. Not just for women, e.g, the Texas abortion-bounty law, but also in daily life, where safety and health regulations, including those touching on guns, vaccines and the air citizens breathe, are on the line. 

In an alarming certiorari grant, the new super-conservative majority on the court may be signalling its support for the most deadly attack in decades on the modern administrative state, and, with coal and the EPA involved, life on the planet itself.

It's a horrifying redux of the toxic "non-delegation" theory of legislation that could affect 99% of America's regulatory statutes. A (federally) unregulated corporate nirvana could result.

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A house subcommittee is investigating the government's 2020 coronavirus response and has uncovered the depths of Trump's pandemic incompetence. Even so, Texas and other red states have sued to block the Biden Administration's mild vaccination requirements for federal contractors who operate in their states.

The states lost, but the Trump-stuffed Fifth Circuit came through for the party's public-health sceptics: an all-Republican panel struck down the OSHA-issued employer vaccination mandates. The Commerce Clause analysis was described by one constitutional law professor as "reactionary and bonkers".

By contrast, the appeal of Trump's claims of executive privilege over National Archives papers, rejected by a DC judge, will be heard by a panel of Democrat-appointed judges.

It remains to be seen which appeals circuit will hear the inevitable "faith-based" challenges to President Biden's reversal of Trump administration rules that allowed religious-based anti-gay discrimination.

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Bannon: Trump's little mate

After dithering for weeks, the Justice Department has indicted Trump's mate Steve Bannon for contempt of congress. Some had worried that the ever-cautious attorney general, Merrick Garland, would delay charging Bannon, or not charge him at all; after all, in October, Garland let the five-year statute of limitations run against Michael Cohen's unindicted co-conspirator in the Stormy Daniels hush-money payments: "Individual-l", one Donald Trump.

It was another Houdini escape for El Caudillo de Mar-a-Lago. The payments, clear violations of election law, were under investigation by the Federal Election Commission as Trump's term ended, but holdover Republican appointees on the evenly-divided commission engineered a case closure on technical grounds.

If scandal and disgrace fail to sink Trump or his Republican caucus, there's still a faint prospect that the  congressional insurrectionists could be expelled, as they were in 1866, and Trump himself could be disqualified (or "lustrated") from office. 

It's essential that Trump be stopped from standing again, as all the indications are that he's planning a coup in 2024; that's why so much depends upon the work of the House Select Committee that is currently investigating the unsuccessful 2020 coup attempt. 

Even as the committee was sitting, shocking new evidence emerged of Trump's efforts to cling to power, e.g, the Eastman memos, and now, the Ellis and McEntee memos. Jenna Ellis was a Trump campaign lawyer; Johnny McEntee was the 29-year-old White House personnel director who forced out Defence Secretary Mark Esper for (among other things) resisting Trump's efforts to involve the Pentagon in his Putsch.

Even with the overwhelming evidence of wrongdoing, there's little time left for house Democrats to deal with Trump. The recent Virginia state elections exposed the continuing credulity of Republican voters, a softening of Democrat support and most worryingly, 2020 Biden voters with a short memory.

In November 2022 there will be congressional elections. Inflamed by the ceaseless Stolen-Election lie and powered by gerrymanders that would make Bjelke-Petersen blush, Trump's Fox-fed Lumpenproletariat will regain control of the House of Reps and put an end to its inquiries into Trump's malefactions. 

Yet there's no lack of ongoing litigation (here's the latest list), with a fresh grand jury inquiry into the Trump Organisation. Trump remains in personal legal peril with the January 6th jailings: his aiding and abetting the Capitol occupation would be one of the easiest cases for prosecutors to prove. As well, there's the incriminating Hatch Act violations of underlings in which he's implicated.

Teapot Dome Scandal ... plunder of public assets by presidential cronies

The Washington Post has produced a three-part report on the January 6th insurrection before, during and after the coup attempt.

The Guardian also has a report, and ProPublica found the sources of the riot funding. Now, congressional complicity in the Trump coup plot is coming to light; subpoenaed witnesses at the January 6 committee hearings are said to be singing like canaries. 

If all else fails, there is hope that defamation suits will bring down Trump and his legal hacks, and his mad media accomplices, too. 

The Trump International Hotel, meanwhile, has been sold at a spectacular loss to an investment group, after the Trump Organisation lost $70 million on it during the lessee's surprise presidential term. Look for a Waldorf Astoria in Washington's Old Post Office. 

The venality of the Trump administration now exceeds any in American history, including the 1921 Teapot Dome Scandal. That involved the private looting of publicly-owned assets, what we now call fossil fuels, by the officials and corporate cronies of a corrupt president. Sound familiar? 

From Roger Fitch and our Friends Down Under at Justinian

 

Ominous agenda of SCOTUS' supermajority

ROGER FITCH ESQ • WEDNESDAY, OCTOBER 13, 2021

Stonewalling the January 6 investigation ... Obstruction of justice is flavour of the season ... Midterm dangers ... Huge report on attempted subversion of the DoJ ... Supreme Court docket ... "State secrets" ... Legal theory in support of election heist ... From Washington Roger Fitch reports 

"[T]he reprieve that we experienced when Trump did in fact leave office ... will be quite brief. By 2022, or 2024 at the latest, we will see that the American political system has been hopelessly corrupted, with Republicans having successfully ended any serious prospect of honest political competition ... it seems that we are merely waiting for the end ... We were never by any means a perfect constitutional democracy (having only had something roughly resembling widespread voting rights for about the last fifty-six years, among other obvious flaws) ..." - Neil Buchanan

The rising tide of Republican lawlessness has become a Tsunami, and doomsday predictions of America's future are now common. F

Briefly, Republicans seem prepared to destroy America in order to save it from Democrats. 

One example: stonewalling house Republicans are resorting to extortion to prevent disclosure of their telephone records to the house committee investigating the January 6 Capitol invasion, while their former president, fresh from his campaign to steal the 2020 election, openly backs party candidates he believes will support his plans to steal the 2024 election. 

The Republican caucus in the House of Representatives is bad enough already: two-thirds of members attempted to prevent the routine confirmation of the 2020 election results, and are resisting both house and senate investigations of some of the serial crimes and personal corruption of the last president.

One example: abuse of his government lease for Washington's Old Post Office, fitted-out as a luxury Trump hostelry.

According to documents released by the House Oversight Committee, the Trump International Hotel actually lost $70 million while its eponymous lessee was president: that's despite millions in foreign government backhanders disguised as bookings. 

Trump's loss leading hotel

The House Judiciary Committee is currently investigating the January 6 insurrection, including the former president's brazen plot to steal the election (more here), and has issued subpoenas for testimony by former Trump associates. 

The litigation-entangled Trump responded by "ordering" former aides to flout their subpoenas, a textbook obstruction of  justice; in any case, President Biden overruled Trumped-up claims of executive privilege. 

Yet sadly, time is on Trump's side: Republicans, armed with fresh decennial gerrymanders and reliant on the gullibility of voters, will likely retake the house of reps next year and close down inquiries. What's really needed is a special prosecutor, as proposed in a 1987 Chapel Hill law review article by JR Biden Jr. 

The many criminal investigations of Trump (including in Georgia) are another matter. Prosecutors retain a measure of independence, and there is hope that a successful prosecution of the former president for one or another of his many criminal defalcations and abuses of power will in future modestly deter the Republican Party. 

Just Security argued for a Justice Department investigation of Trump's White House Chief of Staff Mark Meadows, as well as the president's DoJ mole Jeffrey Clark, now the subject of a DC Bar Association complaint. 

Emptywheel's Marcy Wheeler speculated on how the Justice Department might bring charges against Donald Trump himself for his participation in January 6th.

Meanwhile, there's a 394-page interim Senate Judiciary Committee report on Trump's efforts to alter the election results through DoJ subversion. Lawfare comments.

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Blowback from the "war on terror" of the early 2000s still affects the supreme court docket: one of the first cases argued in the court's new October term was that of Abu Zubaydah, the long-suffering, much-abused Guantánamo internee. 

Zubaydah's detention and mistreatment was one of the earliest emanations of that time when George Bush, aided and abetted by congress, effectively blew up the rule of law, and consequently, federal criminal (and sometimes civil) justice: not just through torture, but in the torture cover-up, repeatedly claiming, in shameless bad faith, the so-called state secrets privilege. 

The Zubaydah case, now in the supreme court, directly confronts the question, how does the privilege apply when the "state secret" - the fact that Poland assisted CIA torture - is not a secret at all. 

The Poles themselves have already acknowledged their participation and even paid damages to Zubaydah, in the European Court of Human Rights; however, they haven't gone so far as to give tours of the former US torture facilities, as the Taliban are doing in Afghanistan.

An amicus brief filed by the Bureau of Investigative Journalism demonstrates why the case does not in fact involve state secrets, more here, oral argument here. 

Although the justices appeared unlikely to rule in Zubaydah's favour on the state secrets issue, they seemed genuinely astonished that the prisoner's habeas petition had not been acted upon since 2008. 

The court will also hear another "state secrets" case this term, involving FBI surveillance.

Nine important cases are already on the supreme court's docket for the October term, including a case in which, surprisingly, public defenders joined the enemy gun camp in opposing New York's concealed-gun regulations. 

Berkeley law dean Erwin Chemerinsky has a preview of the supreme court's term, and a new book warning of the right-wing court's ominous agenda; the Nation's Ely Mystal, a Harvard lawyer, also paints a bleak view of the likely regressive direction of the court's new conservative supermajority. 

Berkeley's Chemerinsky: court's ominous agenda

In its recent recess orders overturning Biden administration executive orders, so at variance with the court's deferential treatment of Trump's orders, the majority seems to be siding with Republican party policy, issuing transparently partisan decisions; so far, the court has favoured Trump executive orders 28 times compared to zero for Biden. More here. 

If these shadow docket decisions are any indication, Donald Trump's ideological judicial appointments portend a partisan court that will be anti-progressive, anti-regulatory and pro-corporate, a rubber stamp for Republican causes and initiatives that will last for years.

The court has also weaponised lower court orders of Trump-appointed judges, as in the case of states' meddling in immigration, here and here. The district court judges, both sitting in Texas, ruled in response to red border states who oppose the Biden administration's immigration policies, policies heretofore considered exclusively within the purview of the federal government.

This latest supreme court mischief has only increased calls for judicial reforms, including additional members for the court.

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Eastman with troubled comrade Giuliani

Lawyers may enjoy the improbable saga of the opportunistic hack John Eastman who, courtesy of Fox News, rose from legal obscurity to advance legal theories threatening the republic itself.

The New Republic reported on ex-law dean Eastman's seditious (though initially underreported) memos to Vice-President Pence. The Atlantic considered the overall scheme. More here. 

Many lawyers have urged the California Bar Association to take disciplinary action against Eastman, something the bar failed to do with the notorious Berkeley law prof John Yoo.

At least Eastman's advice - unlike Yoo's public-service torture memos - wasn't cooked-up at taxpayer expense. 

From Roger Fitch and our friends down under at Justinian

 

The tail end of the American century

ROGER FITCH ESQ • TUESDAY, SEPTEMBER 14, 2021

Decline and fall following 9/11 ... Damage wrought by the "war on terror" ... Democracy looks wobbly ... Brigade of unscrupulous lawyers shredded the law ... Nacht und Nebel ... Guantánamo detainees now in the Taliban government ... Roger Fitch files from Washington 

Much has been written about the September 11, 2001 terrorist attacks on their 20th anniversary, mostly about how "9/11 changed the world". In hindsight, it was America's reaction that altered everything. One headline summed that up: The Most Terrifying Thing About 9/11 Was America's Response.

2021 also brought an end to the immensely counter-productive war in Afghanistan launched by George Bush and acquiesced in or joined by western nations. 

Osama bin Ladin, the ostensible target of the US invasion, left Afghanistan in the first year of the war. He was eventually captured in Pakistan, where summary judgment was rendered: quite unnecessary, with an open indictment in Manhattan. 

Ironically, it was a good man, Jimmy Carter, who in 1979 began the ill-advised Afghan involvement, largely at the urging of his national security adviser, Zbigniew Brzeziński (seen here). "Zbig" wanted to draw the Russians into Afghanistan and hasten the collapse of the Soviet Union. 

Many believe that ploy was successfully emulated by bin Laden when he drew the US into Afghanistan: the US suffered great internal stress and loss of its position in the world, and is currently threatened with the collapse of its democracy.

The failure of the Afghanistan intervention, coinciding with the 9/11 anniversary, caused Americans and foreign observers to stop and reflect on how the US government got everything wrong in the 20-year "Global War on Terror" that followed 9/11, beginning with George Bush's rejection of Taliban peace overtures. 

There's more in The Intercept and the New Republic on the Afghan fiasco.

Historians will rightly blame George Bush for many domestic effects that remained, e.g, an armaments industry in overdrive and a security state. 

Above all, there is a re-jigged justice system that has sanctioned the prosecution of combatants and militarised civilian crimes, epitomised by the extrajudicial detention at Guantánamo and "trials" in its kangaroo courts. 

Astonishingly, liberal democracies like Australia and Canada (and briefly, Britain and Germany) allowed their citizens to be caught up in proceedings that violated their own laws as well as American and international law. 

Zbigniew Brzezinski: father of the Afghan folly

Opportunistic, malleable, incompetent or merely dishonest, bad lawyers were at the heart of the Bush Administration's derailment of law. John Yoo, Jay Bybee, Patrick Philbin, Robert Delahunty, Timothy Flanigan, Daniel Levin, Steven Bradbury, Jim Haynes and Alberto Gonzales joined in memos that ignored the Torture and Geneva Conventions, "authorising" practices that first-year law students would recognise as illegal. 

"National Security" brought such things before. Although it's disputed, the law professor Scott Horton believes Bush's lawyers were as culpable as Hitler's Night and Fog lawyers, tried at Nuremberg in the Altstoetter case:

"Justice Department lawyers were ... charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht-und-Nebel [decree]. The United States charged that as lawyers ... they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were 'recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war' ... the two principal Justice Department lawyers ... were convicted and sentenced to ten years' imprisonment ...This judgment clearly established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom."  

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While Karen Greenberg has lamented the overall damage to America's rule of law caused by the 20-year "War on Terror", others are turning their attention to righting particular terror-war wrongs, e.g, Guantánamo, its inmates and former inhabitants, and the treatment of Detainee 001, John Walker Lindt.  

Among those speaking out have been human rights lawyers, prisoner advocates and members of the Guantanamo Bar. They point out that, following the end of hostilities in Afghanistan, there's little legal basis for military detention of "law of war" prisoners, not charged with war crimes. 

Many were non-combatants, seized outside Afghanistan, and only five percent were captured by US soldiers on the battlefield. All were presumed by George Bush to be unlawful fighters, fictional "enemy combatants".

Those who were in fact belligerents were often lawful ones, e.g, the five Taliban (see below) freed by Obama in a prisoner swap in 2014. 

They were fully entitled to the protections of the Geneva Conventions that the Pentagon had scrupulously provided in previous wars, e.g, PoW status hearings required under the Geneva Conventions and the US Code of Military Justice. The Vietcong received these, why not the Taliban? 

Instead, officials trying to follow the law were bullied, sacked or re-assigned (see Fitch here). 

Al Jazeera and the Times have more on the sordid history and present state of the Guantánamo project.

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Gholam Ruhani: eight years at Guantánamo (pic: AP)

Guantánamo grad Gholam Ruhani turned up at the first Taliban appearance in the presidential palace in Kabul. He was Detainee 003, and like Detainee 002 (David Hicks) was released in 2007. 

Several Gitmo alumni were in the new Afghan government, e.g, Abdul Qayyum Zakir, the acting defence minister. 

Zakir was also one of the first Gitmo prisoners (Detainee 008). Though an Afghan military official, he was detained for years while successive US governments denied him a PoW status hearing in flagrant disregard of the Geneva Conventions and the US Code of Military Justice.

Another government minister, Khairullah Khairkhwa, was also a military official in the 2001 Taliban government, and one of those detained at Guantánamo in violation of Geneva; he was released under the Obama administration as part of a prisoner exchange for the captured US soldier Bowe Bergdahl. 

Both men had been held in conditions violating the Geneva Conventions.

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At Guantánamo, military commission charges were finally approved against Riduan Isamuddin (Hambali) for the Bali bombings. The charges were laid by an outgoing Trump appointee, on Biden's first full day in office. The case was previously refused clearance to proceed, perhaps due to torture, the reason in Mohammed al-Qahtani's case. More here.

Pending Guantánamo proceedings suggest the US is still failing to recognise its anti-torture obligations, especially in the military commission proceedings, where torture-derived evidence remains on the table.

One such proceeding is that of Abd Al-Rahim al-Nashiri. Torture-derived evidence is the subject of his mandamus petition in the (cosmetic) Court of Military Commission Review; interestingly, Nashiri's torture was supervised by Gina Haspel, afterwards Trump's CIA director. The NYT has more. 

Even as al-Nashiri's lawyers argue against the use of evidence gained through torture, the DoJ is remaining silent on the right to due process in the al-Hela case now before the full DC Circuit. The supreme court is meanwhile considering the "state secrets" appeal of Abu Zubaydah (CCR has an amicus brief). 

 Conveniently, the CIA destroyed its most notorious torture facility, the Salt Pit, before leaving Afghanistan.