Our Man in Washington
Sleaze and corruption at the centre of US government ... Functioning democracy under threat ... Presidential pardons ... Voter purges ... International law of no consequence to Brett Kavanaugh ... Roger Fitch reports
"It is hardly a coincidence that so many greedy people have filled the administration's ranks. Trump's ostentatious crudeness and misogyny are a kind of human-resources strategy. Radiating personal and professional sleaze lets him quickly and easily identify individuals who have any kind of public ethics and to sort them out ... Trump is legitimately excellent at cultivating an inner circle unburdened by legal or moral scruples. These are the only kind of people who want to work for Trump, and the only kind Trump wants to work for him" - New York Magazine
Donald Trump recently lost the fifthmember of his needy and greedy cabinet. The comprehensively crooked Environmental Protection Administrator Scott Pruitt resigned "under a cloud of ethics scandals", as the NYT delicately referred to 13 separate investigationsfor misconduct and misappropriation of government resources.
The EPA's targeted war on environmental, health and safety regulations will continue. Confident in the boundless ignorance of their leader's 46 percent base - sufficient to win office with Republican gerrymanders - Trump appointees resort to absurd arguments to justify regulatory rollbacks.
The latest, directed at California's progressive leadership, is the astounding claim that better fuel mileage is dangerous: it causes people to drive more.
Like many of Trump's counterintuitive innovations - more pollution, no health insurance, worse education - it reminded Fitch of Woody Allen's 1973 comic dystopia, "Sleepers", where everything harmful had become desirable.
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Thanks in large part to the feeble opposition of complacent Democrats, Republicans are smiting America, and look likely to finish it off as a functioning democracy. The already-corrupt congress has been sidelined, the courts are compromised, and Mr Trump could plausibly win re-election.
With impeachment off the table, only confinement to a federal or state prison seems likely to restrain the Trump tribe, beginning with the increasingly mendacious president, who - amidst such government barbarisms as pro se infant deportation hearings and racist de-naturalization - actually rewards crimes.
Mr Obama never considered pardoning imprisoned martyrs of the left like former Black Panther Mumia Abu Jamal or the Native American Leonard Peltier, yet Mr Trump seems willing to give a gong to every rightwing extremist lingering in prison or about to go there, e.g. the Oregon arsonist family that wants to appropriate public lands for private use. Here's the back story and a comment on consequences for federal law enforcement.
It all sets a bad example for the rule of law, something Mr Trump is hard at work undermining, including through the courts, where the recent upholding of the "Muslim ban" created particularly bad law, more here.
Even in the brief time he has held office, the president's stacked supreme court has managed to do significant damage, starting with the 1st Amendment, now "weaponised" for nefarious purposes. One example is the green-lighting of dark money transfers that prefigure outright bribery.
It's already led to "shadow governance" in nearly half the states with Republican governors and one-quarter of those with Democrats.
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July marked the 150th anniversary of the 14th Amendment, the one that basically created the present bill of rights. While it protected black males, extreme Republican orthodoxy says it didn't apply to sexual discrimination, or even women.
Perhaps inadvertently, Attorney General Jeff Sessions observed the month's event by quietly rescinding a number of protections minorities have enjoyed. Is it the end of civil rights?
Voting rights remain under attack. Shelby County v Holder, which began it all, still infectsthe legitimacy of elections in the US, particularly in the recent Abbott v Perez.
The latest threat is voter purges. States knocked 16 million voters off the rolls before the 2016 election, and it's now an age of minority rule, with profound differences between the majority who identify as Democrats, and those who call themselves Republicans.
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Waiting to wreak havoc on voting rights is Mr Trump's latest supreme court nominee, Brett Kavanaugh, a man expected to tip the scales in supreme court jurisprudence for a generation, the culmination of a 30-year Republican project.
Kavanaugh has sterling academic and judicial credentials, but he's a partisan Republican who participated in many of the party's unsavoury political operations of the last twenty years: the endless investigations of the Clintons (Kavanaugh was principal author of the salacious Starr Report), the Florida recount in 2000, and more.
The nominee's present views on criminal prosecution of sitting presidents will be closely examined by Democrat senators, but of more concern is his view of international law, e.g. in Guantánamo cases.
As Just Security noted in 2014, Kavanaugh's en banc concurrence in Hamdan II joined in striking out Hamdan's Material Support for Terrorism conviction on the limited basis that the acts occurred before the offence was created by congress.
That decision benefited David Hicks, Omar Khadr and others convicted of MST, a patently invented, non-war crime under international law.
Kavanaugh, however, believes international law doesn't matter. In the DC circuit's 2016 al Bahlul case, involving Bahlul's conspiracy conviction, Kavanaugh's en banc concurrence argued that congress had the authority to use military commissions for non-war crimes - despite international law and US precedent to the contrary (the circuit upheld Bahlul's conspiracy conviction on other grounds).
Bahlul's supreme court appeal was rejected, but another Guantánamo case, al-Nashiri, is still working its way through the courts and could present a Justice Kavanaugh with "recusal problems".
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Controversy continues at Guantánamo, with the political firing of the commissions' Convening Authority; the sudden retirement of the judge in the Cole bombing case; fresh revelations in declassified prosecution documents; and new disclosures of top-secret CIA cables from Thailand detailing al-Nashiri's torture at the time Gina Haspel (now CIA director) was in charge.
The group habeas previously reported in Fitch, al-Bihani, has now been argued in Washington DC, with the Trump administration claiming it can hold the men (including this man) for "100 years", more here.
It's not very different from the government's justification in 2003 before the 9th Circuit. There, in the Gherebi case, the Justice Department lawyers - led by Robert McCallam, afterwards ambassador to Australia - presented arguments the court characterised as follows:
"Under the government's theory, it is free to imprison Gherebi indefinitely along with hundreds of other citizens of foreign countries, friendly nations among them, and to do with Gherebi and those detainees as it will, when it pleases, without any compliance with any rule of law of any kind, without permitting him to consult counsel, and without acknowledging any judicial forum in which its actions may be challenged. Indeed, at oral argument, the government advised us that its position would be the same even if the claims were that it was engaging in acts of torture and that it was summarily executing the detainees."
