American after-glow
ROGER FITCH ESQ • MONDAY, SEPTEMBER 7, 2015
Connecticut's Supreme Court kills the death penalty ... Locating the new Guantánamo ... Extrajudicial abduction ... Psychologists withdraw from the chamber of horrors ... John Robert CJ's abiding fear of the right to vote ... Roger Fitch, Our Man in Washington
THE supreme court is quiet for the summer, as Justice Anthony Kennedy basks in the glow of his opinion recognising same-sex marriage.
Kennedy's eloquence in Obergefell v Hodgeshas struck a chord with those considering marriage and it seems both gay and straight couples are already using his words for their nuptials.
A notorious decision of the DC Circuit meanwhile is being appealed to the supreme court.
Allaithi v Rumsfeld held that tortured and abused Guantánamo prisoners have no cause of action for civil damages against former DefSec Rumsfeld because Rummy's mistreatment of them was within the scope of his employment. The case has been going on since 2006.
In Manhattan, the government lost its effort to suppress the "targeted killing" records of the three Americans vaporised by CIA drones. There's a timely article here on the life and death of one of them, Anwar Awlaki, "the first American to be hunted and killed by his own government since the Civil War".
In an important state case, Connecticut's supreme court became the first to judicially abolish capital punishment.
The decision concerned prisoners on death row and followed a prospective legislative repeal, but it's based on a finding the death penalty is "cruel and unusual punishment" under Connecticut's constitution.
The 9th circuit is currently hearing an appeal from a California federal court decision thatstruck down that state's death penalty on different "cruel and unusual" grounds.
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Obama: playing for the other side
President Obama seems to spend a lot of time playing for the other team and, when he departs office, his feeble advocacy of Democrat party policy will leave troubling figures in party statistics.
The Washington Post reports that under Obama, 85 of 98 partisan state legislative bodies have become more Republican.
Some believe Mr Obama has seriously damaged the party brand with Bush-like proposals such as the administrative detention of "terrorist" prisoners in a stateside military jail.
The president is looking for US locations for extrajudicial indefinite detention when Guantánamo closes, and he's considering a US Navy brig near Charleston, SC, an army prison in Kansas, or even a new internment camp.
Any US prison would establish an alarming precedent for future domestic military detention of men regarded as civilian terrorists, caught in spent wars or having only tenuous connections to combat.
The South Carolina option doesn't sit well with South Carolina's Tea Party Republican governor Nikki Haley, and Charleston residents have reservations about the relocation to their city of the allegedly dangerous men.
Haley (right): not sitting well
Charlestonians were strangely silent when the same navy brig was used to house and abuse three civilian "war-on-terror" prisoners, two of them US citizens, during the Bush years: Yaser Hamdi, José Padilla and Ali Saleh al-Marri.
The Guardian reports that only three of 116 remaining Gitmo internees were actually captured by US forces, including a Pakistani businessman seized in Thailand by the CIA.
As it happens, there's a new book on the US forces usually responsible for such extrajudicial abductions, Joint Special Operations Command.
One foreign citizen "rendered to justice" by Americans is contesting his manner of apprehension, but under settled US law, his chances don’t look good.
For other, unapproved, kidnappings, there's a new Envoy for Hostage Affairs. It's another ambiguously-titled State Department initiative, like War Crimes Rewards.
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The American Psychological Association has decided to do the right thing and stop assisting US government interrogations, following a damning independent investigation. TheGuardian and Just Security have more.
Only one person voted against the change - Larry James, a former member of the Behavioural Science Consultation Team (BSCT), military psychologists who collaborated in the brutal interrogation of helpless prisoners at Abu Ghraib and Guantánamo.
James: wants to keep psychologists on the interrogation teams
Many "Biscuits" have had ethics charges brought against them, and one of them took themilitary Fifth Amendment.
Following cancellation of the CIA's contract with the firm of torture-architect psychologists James Mitchell and Bruce Jessen, West Coast civil rights figure Stephen Yagman has filed suit under the False Claims Act for recovery of the $81 million Mitchell-Jessen were paid for their (dirty) work.
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The Pentagon swiftly investigates claims of carcinogenic work conditions of Guantánamo personnel, especially lawyers, but it stonewalls urgent medical assistance for internees, e.g. the British resident Shaker Aamer and Yemeni, Tariq Ba Odah.
Ba Odah has been on hunger strike for more than eight years, weighs 34 kgs and is near death.
In its response to Ba Odah's motion, the Department of Justice argued that releasing him would only encourage les autres, who might also undertake starving to death, just to get out of jail.
As Marty Lederman notes, the government recognised but ignored the Geneva Conventions requirement that sick and dying prisoners be repatriated.
According to a Times report, the State Department opposed the government stance.
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As US legislators scramble for cash for the 2016 Congressional cycle, 141 retired members of Congress are holding $46 million in excess cash from their last election.
That's chickenfeed. The 2016 election cycle could cost as much as $10 billion, and thanks toCitizens United, 67 donors are dominating elections for the governance of 320 million people.
The Washington Post is shocked. More here.
By one recent count, there were 17 Republicans running for president, including one under indictment.
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Roberts CJ: not keen on voting rights for minorities
The conservative Fifth Circuit has ruled that the Republican-engineered voter photo-ID in Texas is a violation of the Voting Rights Act, and Texas is seeking en banc review.
The circuit accepted that the voting restrictions were discriminatory, but overturned the lower court's findings of a discriminatory purpose, remanding for a fresh determination of legislative purpose, but leaving in force a stay of the lower court's injunction.
Without injunctive relief, some 600,000 Texans will be prevented from voting in next year's elections, just as they were in last year's.
The controversial Texas AG is setting up a supreme court appeal, giving Republican activists on that court another shot at killing the Voting Rights Act.
The Act is currently celebrating its 50th anniversary, despite CJ Roberts' near-successful efforts to kill it in Shelby County v Holder, the astonishing 2013 decision in which the court's Republican majority struck down - as based on stale facts - an essential part of theVRA that had been overwhelmingly readopted in 2006 by a unanimous Senate and all but 33 members of the House.
A new biography of the Chief Justice tracks his decades-long antipathy to the VRA.
Alleged violations of the surviving portions of the Act face multiple court challenges, especially in Texas and North Carolina, as Republican-controlled states continue to place diabolical obstacles in the path of disadvantaged poor and minorities who vote Democrat, e.g. Alabama requires a driver's licence to vote, but budget cuts would close all but four of the state's 49 driver's licence offices.
Redistricting offers further opportunities to disenfranchise, and a constitutional right to vote, presently missing, may be required to stop cascading, mainly Republican, vote-suppression.
