ROGER FITCH ESQ • THURSDAY, JUNE 28, 2018
Judicial coup de état ... Partisan Republicans on the US Supreme Court purge the voter rolls ... Tainted appointee Neil Gorsuch does his bit ... No more swing decisions as Anthony Kennedy resigns ... Torture queen at the helm of the CIA ... The most absurd Guantánamo case ... Roger Fitch, Our man in Washington, reports
AS the end of its 2017 term approached, the supreme court punted on gerrymandering (but not all is lost); allowed a Republican-hatched voter purge scheme to go forward; and in deciding the "wedding cake" case, failed to do the damage to church-state separation that "religious conservatives" had prayed for.
The keenly-awaited internet sales tax decision, South Dakota v Wayfair, had a surprising alignment of justices.
Civil libertarians welcomed Carpenter v US, in which Chief Justice John Roberts sided with the court's liberals in a decision requiring police to obtain court warrants for mobile phone tower data.
Then came ominous signs, as the court gratuitously upset antitrust law in Ohio v American Express.
Next, the court gave Texas a near-complete victory on its (racial) gerrymanders, overrulingunanimous lower court rulings, more here. With Justice Alito deciding that good faith of states must be presumed, there will be lots more accidental-on-purpose discrimination favouring Republicans.
As in Husted, the Ohio voter-purge case, the Texas decision was assured by Trump's appointment of a partisan Republican, Neil Gorsuch, in place of Obama's moderate nominee, Merrick Garland. More here.
Mitch McConnell, the Republican majority leader married to the shipping heiress who is Secretary of Transportation, even Tweeted a photo of Gorsuch as part of his senate reelection campaign ...
In the court's final week, all the planning that went into the Republicans' 2016 year-long blockade of Garland paid off: in the "Muslim ban" case, the newly-packed court endowed a racist president with bold new immigration powers (incidentally overruling the Japanese internment case Korematsu). The court also assisted anti-abortionists in California, and, as expected, up-ended longstanding state laws on "agency fees" where non-union public employees contribute to the cost of collective bargaining.
And finally, Justice Anthony Kennedy conveniently announced his retirement in time for a replacement to be confirmed by a Republican senate. Trump's candidates are here.
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With a morally bankrupt torture-embracing president, rubberstamp Republican congress, and torture supporters everywhere, it's possible that torture experience helped a torture-camp director become CIA Director.
Gina Haspel formerly ran the CIA's depraved Thai torture operation (on-going under local direction), and some - including conservatives - call her a war criminal. More here and here. Nevetheless, Haspel was narrowly confirmed when six Democrats crossed the senate floor.
It marked a continuation of the free pass Haspel received from the Obama administration for both torture and its cover-up. She should, however, avoid future travel in rule-of-law countries, e.g, Germany.
Even as Haspel was being confirmed, the CIA's original "legal opinion" supporting its proposed use of torture was produced - after redacting the name of the "lawyer" who concocted it.
Another incriminating response to FOI requests was the CIA's demand for an advance DoJ "declination of prosecution" for its planned violations of federal laws and the Covenant Against Torture.
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The most absurd case ever brought at Guantánamo, that of the Haspel-supervised torture victim Abt al-Rahim al-Nashiri, has been put on indefinite hold by the presiding military judge, more here.
In a companion nonsense case, Ahmed Mohammed al-Darbi has been repatriated to Saudi Arabia, having done his duty by grassing up Mr Nashiri in the MV Limburg and USS Cole cases. More here.
The Limburg bombing involved peacetime piracy against a Panamanian-flagged French tanker in international waters. There's no connection to the US, but the Pentagon's reliable (if shambolic) Court of Military Commission Review reversed the military judge's dismissal of the claims.
The Cole bombing involved Americans, but still no war; even if hostilities had been implicated, the attack would be legal, absent "perfidy".
All the other USS Cole defendants were successfully convicted in civilian US courts years ago, where Nashiri - now depicted in his military commission as the mastermind and architect of the Cole bombing - was just an "unindicted co-conspirator". He was unavailable for US trial because the CIA was busy torturing him in three countries overseas. Two of them, Poland and Romania, have been ordered by the European Court of Human Rights to pay Nashiri damages for their part in his CIA torture. More here.
Nashiri's ordeal in Thailand was personally supervised by the psychologists Mitchell and Jessen (the CIA has settled a civil suit for damages against them) and by Gina Haspel, the new CIA director.
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The military commission of Abd al-Hadi is picking-up speed at Guantánamo. Al Hadi is one of the few at Gitmo charged with a real war crime - killing civilians. Many of the other charges seem doubtful in light of his combat status, but a freshly-stacked supreme court may ultimately rewrite international law, the Geneva Conventions and the US constitution to make "conspiracy" and other civilian offences valid tribunal crimes.
The 9/11 defendants are likewise accused of killing civilians, although there wasn't any war underway on September 11, 2001. The military judge in that case got around the lack of hostilities by deferring to the self-serving characterisations of military jurisdiction by congress and the executive.
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In a new global attack on Gitmo detention, a group habeas petition has been brought in DC supported by the human rights law firms Reprieve and the Center for Constitutional Rights. More from Lawfare, HRW's Laura Pitter and Just Security.
The case, styled al Hajj v Trump, emphasises Mr Trump's anti-Muslim animus, and is beginning to bear fruit under an Obama-appointed judge.
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Last year, it was revealed that a US citizen was being held by the Pentagon overseas, without legal rights. Captured in Syria, he was held in Iraq and threatened with repatriation to Saudi Arabia (he's a dual citizen). More here.
In an action brought by the ACLU, the US refused to divulge the man's name but admitted he had asked for a lawyer, and following the judge's order, "John Doe" confirmed he wanted representation. More here.
The judge ruled that the citizen's lawyers were entitled to 72 hours' notice before any transfer. When notice was duly given, the judge refused to approve the transfer to Iraq, and the government now proposes to abandon the nameless man outside a displaced persons camp in Syria.
John Doe will have one advantage when he is released. Previously, the Pentagon confiscated the monetary property of a released "war prisoner", Djamel Ameziane - clearly "pillage" and a war crime. In the case of John Doe, however, the Pentagon has generously agreed to return the citizen's money - $4,210. That's if the court allows the government to send a US citizen to a war zone: non-refoulement is another bedrock principle of international law regularly flouted by the Pentagon.
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