Friday, September 27, 2019

From Roger Fitch and our friends down under at Justinian

Abuse of power in Trump's America ... The windback of environmental protections ... War with California ... "Natural law" replaces human rights ... Distortion of the US judiciary ... Guantánamo update ... Roger Fitch visits Washington's new spy museum 
Tinker, Tailor, Soldier, Sailor,
Rich Man, Poor Man, Beggar Man, Thief -
nursery rhyme
The commander-in-chief is rich and a thief, but he's very bad at tinkering: if anything, Donald Trump is a tailor of chaos, daily ripping and tearing the fabric of American society, reminding one historian of the brutish Roman emperor Commodus.  Impeachment is not likely, however, with a loyalist senate and electoral removal stymied by the Republican opposition's legendary dirty tricks.
Even so, the Trump administration's pillaging and looting should lead to prosecutions when Democrats regain control of the politicised Justice Department, where there's presently a blanket refusal to enforce contempt citations of the Democrat congress, including against AG Bill Barr.
Happily, an appeals court decision has momentarily arrested Trump's ceaseless self-dealing, in a case about domestic emoluments; there's still the problem of foreign emoluments, but to be fair, the far-sighted Saudis bought the 45th floor of Trump Tower before Trump's election. 
Corruption is often masked as deregulation, such as the 85 attempts to undo or subvert environmental safeguards, with no obvious beneficiary but deep-pocketed polluters and hydrocarbon bagmen. 
Unravelling settlements for corporate misconduct is another feature of Trump's administration, with government fixers making life easier for banking malefactors, reducing or overruling penalties imposed by the previous administration.
There's a NYT report on the Trump administration's corrupt settlement of corporate penalties, but nothing can touch the record achieved the last time Republicans were in office: the reduction of a Big Tobacco penalty from $130 billion to $10 billion, an accomplishment so astounding that the government lawyer arranging it, Robert McCallum Jr, was rewarded with the sought-after position of US ambassador to Australia.
The Energy Department is meanwhile bringing back incandescent lights. Phasing them out was a Bush idea, but the regulations were Obama's and that's enough for America's (racist) president, along with his nutty belief that energy-saving globes make him look orange.
The EPA has announced it will revoke California's authority to enforce higher pollution standards that the auto manufacturers themselves have embraced. There's no discernible legal basis for the revocation, and to further punish a state that rejects everything Trumpian the DoJ is thuggishly threatening to prosecute the participating manufacturers for committing antitrust violations in cooperating with California. 
It all springs from Trump's subservience to the perceived needs of the doomed but still dominant industry, Big Carbon, led by a new EPA administrator who's had horrible successes, former coal industry executive Andrew Wheeler. It's part of a rollback no one wants and progressive states are fighting
Meanwhile, the Power Company Climate Coalition, an association of utility companies, also opposes Trump's new carbon emissions rule, which would replace Obama's Clean Power Plan.
Political sackings continue at Homeland Security, the department responsible for immigration. The latest: General Counsel John Mitnick. Departmental lawyers have struggled to provide independent legal advice and defend in court government actions that are often unlawful; the president's political adviser, Stephen Miller, is probably behind the sacking. 
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Fresh Orwellianisms continue to bubble-up from the cranks who inhabit Trump departments:  "freedom gas" for methane and natural gas, and "natural law" for inserting religious dogma into human rights law.
The suspicious "natural law" distortion is part of a new "Commission on Inalienable Rights" inspired by rogue academics at sundry religious universities. It will provide "fresh thinking about human rights" and propose "reforms of human rights discourse where it has departed from ... natural law and natural rights" (read same-sex marriage and gay rights). 
"Natural law" could gain traction with some of Trump's judges, including a supreme court about to review Trump-backed discriminatory employment practices already struck down by several appeals circuits and opposed by the EEOC.
There's more here on an employment policy perversely justified under claims of religious beliefs and likely to be joined at the court by another "religious right" to discriminate (in weddings), just upheld in a 4-3 Arizona supreme court decision
The Washington Post has an important article on the Federalist Society's ambitious 30-year program, now approaching fruition, to distort the US judiciary, while US public TV's Frontline has a new documentary on the chief target, the supreme court.
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As everyone knows, the Guantánamo internment camp is a colossal waste of public money, at a cost of $13 million a year per prisoner. Sadly, the people who facilitated it remain unpunished. Seventeen years after the shocking Yoo-Bybee "torture memo", its authors are still enjoying comfortable positions as a tenured Berkeley law professor, and 9th circuit justice, respectively, while their partner in crime, Gina Haspel, has been made CIA director and sanitised by the Wall Street Journal, which often prints John Yoo op-eds.
The results of their gruesome handiwork continue to seep out: declassified CIA cables obtained by the Intercept cast new light on the torture of Khalid Sheikh Mohammed, the lead defendant in the Pentagon's 9/11 commission. An FBI agent is testifying about CIA "black site" procedures in the related al Baluchi case.
The 9th circuit has meanwhile ruled in a case brought by Abu Zubaydah, a Guantánamo prisoner and the first person subjected to George Bush's "enhanced interrogation". The court held that Zubaydah's ordeal at the CIA's black site in Poland was not entitled to protection as a state secret, paving the way for his lawyers to question the men who designed the torture, i.e. James Mitchell (see below) and Bruce Jessen. Both men have settled civil damages claims in a law suit indemnified by the CIA. 
The 9th circuit called Zubaydah's treatment "torture", but the Pentagon prefers other words for the "tendency to deviate from ethical standards under the pressure of circumstances and in the absence of external oversight". 
In a new directive it's called "behavioural drift", unethical or abusive behaviour "commonly observed in detention and other settings in which individuals have control or power over others' activities of daily living or general functioning".
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Waterboard display at the International Spy Museum
Washington has a tasteless new Spy Museum, and two CIA ruffians, the contract "psychologist" James Mitchell and interrogation-tape destroyer José Rodriguez, have contributed audiovisuals for the museum's popular Guantánamo exhibit, to provide a "balanced" view of the CIA's  at times controversial aggressive debriefings.
The museum's exhibits include demonstration water-boards and a mock-up of the house where Osama bin Laden met his extrajudicial end
It's an upbeat American foil to Lithuania's grim "KGB museum", with its Soviet torture exhibit; Donald Rumsfeld made a solemn pilgrimage there in October 2005, as the CIA tormented Abu Zubaydah nearby.
Postscript:  Donald Trump has nominated an actual torture proponent to lead US human rights policy.

Saturday, September 7, 2019

From Roger Fitch and our friends down under at Justinian....

Companies are hereby ordered ...

Trump as the Mad King ... Dystopian plans ... SCOTUS agenda ... "Religious" claims ... Gun control ... Voting rights ...Republicans on a roll ... Latest news from Guantánamo ... Roger Fitch reports from the turmoil of Washington 
"Who can deny but the president general will be a king to all intents and purposes, and one of the most dangerous kind too; a king elected to command a standing army... The President-general, who is to be our king after this government is established, is vested with powers exceeding those of the most despotic monarch we know of in modern times" - Benjamin Workman ("Philadelphiensus"), an Anti-Federalist.
"Our great American companies are hereby ordered to immediately start looking for an alternative to China, including bringing your companies HOME and making your products in the USA" – Trump tweet.
The situation is grave: a president who erratically rants before paid Statisten at Nuremberg-style rallies, a man known for open malevolence (e.g, towards immigrants), personal vindictiveness (more here) and non-stop lying. Beyond that, a president of depthless immaturity and almost clinical grandiose delusions.
In a new burst of royalism, America's very own King Canute has "ordered" US companies to stop dealing with China, claiming justification under the International Emergency Economic Powers Act of 1977, more here - yet another abuse of the executive's emergency powers.  
In July and August, Donald Trump said Denmark should sell Greenland to the US (more here), claimed Jewish Democrats were “disloyal" - to Israel (more here) and suggested certain (dusky or Muslim) female Democrats, members of congress, yes, even those born in America, "go back to where they came from."
Mainstream media edged closer to finding Trump mentally unbalanced, while a new book by a top human rights lawyer counted the ways he resembles Adolf Hitler. 
Leaving aside Trump's innate transgressive behaviour (e.g, promising pardons to subordinates who break the law), it's the president's personal corruption that interests citizen groups such as CREW, who have documented 2000 plus+ conflicts of interest.
Sometimes the Trump administration's dystopian plans fail: the EPA's proposed roll-back of car pollution standards seems doomed, with Big Auto declining to join in Big Carbon's schemes. Other corporately-curated sabotages of climate science are thriving, however, and the EPA's still on course to destroy the Endangered Species Act.
At the NLRB, the politically-appointed board has put its thumb on the scale for employers, enforcing compulsory individual arbitration agreements that were concocted and imposed after collective actions by employees, e.g. the class litigation so despised  by the supreme court's majority. 
At the Bureau of Land Management, Trump has appointed someone who doesn't believe in public land to oversee 247.3 million acres of public lands and nearly 700 million acres of subsurface mineral estate.
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SCOTUS: the right place for gun nuts 
A number of important matters are headed for the supreme court in its October term. At the top of the docket, vital to the Trump administration's campaign to reverse civil rights gains, are conflicting lower court rulings on sexual discrimination in employment. There will be further contentious decisions on appeal (see one opinion here) which consider "religious" claims of immunity from anti-discrimination laws, based on "faith", "moral" or "free speech" grounds.
Gun regulation laws are also on the menu. Timid efforts at gun control have been discussed by politicians, but the biggest obstacle is the extreme wing of the supreme court, the ideological cohort who imposed a libertarian, ahistorical gloss on the 2nd amendment in the Heller case – one of the most controversial decisions in supreme court history. 
Unwisely, or not, a group of Democrat senators has joined a brief in the latest case, implying the supreme court's decision was likely to be partisan.
The supreme court also will hear the notorious (Mexican) border shooting case and will take up non-unanimous criminal verdicts. It's still the law in Oregon, and until 2018, it was the law in Louisiana. A case in the latter state, testing the prior-2018 decisions, has been accepted for the new term, and will likely interest the intractable "originalists" Neil Gorsuch and Clarence Thomas. 
Stuffing the supreme court with party people is beginning to pay off for Republicans in other ways, with the partisan majority now poised to interfere in lower court decisions at an early stage in order to advance Mr Trump's agenda. Steve Vladeck comments on the border wall expenditure case, where America's president flagrantly spent money after congress refused to appropriate it.
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The fight against voter purging
The supreme court has taken a hands-off approach towards voter rights, expressed most forcefully by its refusal to address partisan gerrymandering in the recent Rucho v Common Cause; it's an indifference likely to last as long as it benefits Republicans, and perfectly consistent with the chief justice's long-held hostility to constitutional voting rights.
"Gerrymandering" actually predates the US bill of rights, but "purging" - the practice of unilaterally knocking suspect citizens off voter rolls - is a modern device that Republican-controlled states use to disenfranchise suspect voters: 17 million of them between 2016 and 2018.
If purging doesn't eliminate prospective Democrats, Republican states have other schemes, e.g. fiddling voting machines, or closing voting sites, where uncongenial minorities attempt to vote. 
If Democrats succeed in voting in Mississippi, the state's byzantine election laws may still prevent a victorious Democrat taking office. In defending a new lawsuit, the state cites the CJ's Rucho opinion.
Citizen initiatives allow some states to set up AEC-type electoral commissions, but Republican-controlled legislatures e.g, in Michigan, are fighting back, determined to maintain gerrymanders that give them majority control. 
Republicans are also organising to base congressional districts entirely on citizenship, a clear breach of the constitution's language. If all else fails, there are plans for a constitutional redraft.
Until such time as Republicans succeed in amending the constitution, there's the electoral college and, interestingly, "faithless electors" (those who vote their conscience instead of the party slate) have just been vindicated by the 10th circuit, more here and here
*   *   *
At Guantánamo, a new "9/11" judge has been considering issues such as:
Meanwhile, a lawyer for Abd al-Rahim al-Nashiri has been unexpectedly passed over for promotion by the Pentagon, possibly for too-vigorous representation of his client.  
The Nashiri case - probably the most lawless of all the commissions - is receiving attention in a new film about the CIA torture program; Nashiri was one of the program's first victims and received the personal attention of the former Thai torture camp commandant - now CIA director - Gina Haspel. 
And finally: it's a bit late in the day, but an Obama-bolstered DC circuit panel has brought back full habeas for Guantánamo internees, more here