David Remes' at Gitmo

LAWFARE

David Remes on His Latest Trip to GTMO

By Benjamin Wittes

Sunday, August 26, 2012 at 9:34 AM

David Remes, who represents several Yemeni clients at Guantanamo Bay, writes in with the following reflections on his latest trip to Guantanamo:

David Remes’ Latest GTMO Adventures

I returned from GTMO on Thursday, unexpectedly soon. I had flown down on Monday for an extended visit, but the visit was cut short when I and others were evacuated in the face of the threat from Tropical Storm Isaac.

A surreal flight back

We boarded a chartered commercial jetliner, bound for Andrews AFB, which is how the military ferries habeas lawyers and individuals associated with military commission cases to and from the base. On board were members of families of 9/11 victims, military commission judges and officials, commission prosecutors and defense counsel, translators, and, at the very rear, NGO observers and the media, and me. Aptly, all involved in this sad drama, except the detainees themselves, were bound together in this self-contained reality.

Before the cabin door was closed, crew members came down the aisle and told those of us in the last 34 rows (the media, observers, and me) to relocate to empty seats further up, to make room for a contingent of prisoners. We were incredulous, but we had heard this from the crew, and we anticipated a spectacle. Journalists began twittering and unpacking recording devices. I planted myself in row 33, expecting to see some of my clients. After about 15 minutes, crew members returned to tell us that it was all a misunderstanding and we could return to our original seats. 

Quis custodiet ipsos custodes?

As usual, in my two days of client meetings, I had an escort, courtesy of the Joint Task Force. Habeas lawyers must be escorted at all times. Commission lawyers, by contrast, may roam at large. This time, however, my escort had an escort – an Army Legal guy – presumably to keep the escort on his toes.

Someone must have instructed the Army guy never to let me out of his sight. A literalist, he trailed me everywhere – into the Subway’s, into the McDonald’s, and even up and down the aisles of the NEX, the base’s supermarket. He was never more than 10 feet behind me. He stood close by when I was at the magazine rack in the back picking magazines for my clients.

The incredible shrinking meeting schedule

In the two days I spent with clients at GTMO this week, I spent the maximum time currently allowed – 5 hours a day. In the beginning, however, when lawyers started visiting the base post-Rasul, they were allowed to meet 9 hours a day, seven days a week – a weekly total of 63 hours. See Shayana Kadidal, “Confronting Ethical Issues in National Security Cases: The Guantánamo Habeas Litigation,” 41 Seton Hall L. Rev. 1397, 1409-10 & n.50 (2011) (final proof). Today, a lawyer can work only 5 hours a day, as noted, and only 5 days a week – a weekly total of 25 hours.

Let’s not go all the way back, though, but instead start with the January 2008 schedule. Under that schedule, a lawyer could meet with clients 6.5 hours a day (9 am—11:30 am and 1—5 pm) five days a week – a weekly total of 32 hours. But we were also allowed meetings on weekends, if we had a good reason, and during lunch and prayer times. A lawyer working a seven day week could easily clock 42 hours. We took the 5:30 pm ferry back to the leeward side of the Bay, where we live, allowing us time to shop for dinner at the NEX before leaving.

(Actual meeting time under the January 2008 schedule was less than 6.5 hours a day, due to the time we lost passing through the security checkpoint; hassling over what papers we might bring into our meetings; waiting for the guards to bring clients to the interview sites and then “secure” them; getting ID badges, and simply being driven around.) 

A new schedule, issued in April 2011, cut our meeting time from 6.5 to 5 hours a day. So it has remained. The current boundaries are 9:15 am—11:30 am and 1:15 pm—4 pm. We are not allowed to meet with clients on weekends or during lunch or prayer times, leaving us just 25 hours a week for client meetings (assuming no slippage), versus the original 63 hours per week. We must also take the 4:30 ferry back to leeward, leaving no time for counsel and translators to shop for dinner. 

The current schedule is the current commander’s idea of reasonable client access under the protective order that in GTMO habeas cases since 2004. I shudder to think how he might exercise his discretion under the Memorandum of Understanding (MOU) that the government is now trying to foist on detainee lawyers and their detainee clients. At least the protective order is supervised by the court. The MOU makes the commander a law unto himself. 

Links to Lawfare’s excellent coverage of the protective order/MOU dispute are provided here.

From Roger Fitch and our Friends down under at Justinian

Election year show trials

Monday, June 25, 2012
Justinian in Citizens United, Drones, Guantanamo, Habeas, Khalid Sheikh Mohammed, Roger Fitch Esq

US Supremes summarily dismiss review of Citizens United ... Judicial appointments frozen ... Obama's drone frenzy makes him "hit-man-in-chief" ... Guantánamo trials seek to neuter Republican bellicosity ... The sham of habeas hearings ... Our Man in Washington reports 

Obama: launched six times as many drones as "lawless yahoo Bush"

IT'S an election year, and Mother Jones has a handy list of how much a seat in Congress will cost you.

These calculations are not mere cynicism, as the 2010 Citizens United decision of the Supreme Court has made unlimited corporate money the essential medium in US elections.

Now the Supreme Court's conservative majority has just dismissed in a single paragraph attempts by Montana, or any other state, to impose restraints on corporate election spending. 

Meanwhile, the lower courts remain clogged with around 70 judicial vacancies remaining to be filled.

As always happens with an approaching presidential election, the opposition is blocking all judicial appointments -in this case, it's the Republicans, confident that a President Romney will appoint only ideologues and "movement conservative" judges fully responsive to corporate and party wish lists.

As for the 2012 presidential election, it's shaping up as a terrorist-killing competition between Romney and Obama, a quest for "Assassin-in Chief".

Mr Obama is presently unsurpassed at killing.

Leaks to the NY Times show his prowess at personally approving those selected for terrorist immortality, in a "war" whose very existence many question.

Inevitably, a fair number of innocent civilians will be called upon to join the handful of terrorists in the Islamic hereafter - far more than the number of innocent American civilians killed by terrorists each year - 17 in 2011, 15 the year before.

At last, a quiescent media is taking notice of Mr Obama's refined taste for assassination.

The Guardian is calling it the "normalisation of extrajudicial murder", while a Miami Herald writer has described Obama as the "hitman in chief " who has launched six times as many drones as "the lawless yahoo Bush".

The target list conveniently includes anyone likely to get hit. Unless proved otherwise later (i.e. after death), all "military age males" in a strike zone are presumed to have been targetable "militants", and if there are children among them, the Pentagon has a ready excuse in the "adult-sized child". Glenn Greenwald has more.

In the ultimate Catch-22, dead civilians can only establish their innocence posthumously. 

Even the New York Times delicately ventured, it was "too much power for a president". 

The UN special rapporteur on extrajudicial killings has not shied from using the words "war crime".

A new book traces the journey of Mr Obama from Nobel Peace Prize laureate to Murder Inc. godfather. Gabor Ron and Daphne Eviatar of Human Rights First comment. 

*   *   *

Former Guantánamo prosecutor Mo Davis: the US has handed KSM all he wants - martyrdom

WITH such notches on his "terror war" belt, Obama the "national security" enthusiast has travelled so far to the right that there's precious little room for Romney to manoeuvre.  

An important ploy in the marginalisation of the Republican remnants will be the Guantánamo show trials.

The trials are about to resume at Guantánamo, with the arraignment of Khalid Sheikh Mohamed and the 9/11 Gang, even as the commissions' doubtful constitutionality is being considered by the DC Circuit.  

The KSM trial is being called the trial of the century.

Nominally, these trials remain "military commissions", though few charges have had any connection to military offences.

Nevertheless, as the apostate former Chief Prosecutor at Guantánamo, Morris Davis, notes, the US has handed KSM all he wants with a wonderful propaganda trial by an illegal tribunal, leading to his glorious martyrdom by lethal injection.

The confessed mass-murderer will die a "warrior", though nothing he has done occurred in any US war. 

A gratified KSM, adopting the government's classification of him as a "warrior", is now demanding the right to wear a military-style uniform at his trial. 

KSM's judge, US Army Col. James Pohl, is no doubt mindful of the fate of the original judge in Omar Khadr's military commission: when Judge Peter Brownback strayed from the Pentagon script, he was summarily removed and retired in a matter of days (see my post of June 2, 2008).   

There's already a defence motion to remove Judge Pohl from the Abd al-Rahim al-Nashiri case, which he is also hearing.

After six or eight years of pretty much ignoring Guantánamo's system of military justice for "terrorists", the press has suddenly come alive with the arraignment and ongoing pre-trial motions of Nashiri, alleged to have been the ringleader of the USS Cole bombing (formerly, merely an "unindicted co-conspirator").

Professor David Frakt has a piece on the double standards involved in assassinations and commissions and has also written on the pretend nature of the alleged offences.

Nashiri's actions come closest to qualifying as a valid war crime, except there wasn't a war in Yemen in 2000.

As David Glazier, another dissenting law professor has observed, the particular charges against Al Nashiri are logically impossible as there was no war and making it a war offence only increases defences available to the defendant, perhaps even creating insurmountable obstacles to a successful prosecution.

*   *   *

Judge Brown: white-ant

I PREVIOUSLY reported the rearguard action of partisan Republicans on the DC Circuit, bent on blocking the implementation of the 2008 Boumediene case. 

Several judges have white-anted the precedent or spoken out against the case, e.g. Janice Rogers Brown, perhaps the most shrill Republican on the DC Circuit. 

A new Seton Hall University study shows that court-mandated constitutional habeas hearings have become a sham as district court judges have been routinely overruled by the DC Circuit using novel reasoning to usurp the district courts' authority. 

To be sure, administration apologists such as Lawfare's Ben Wittes dispute the record. 

The Congressional Research Service has just updated its definitive summary of current detainee law.

Now the Supreme Court has sided with the DC Circuit, effectively repudiating the groundbreaking Boumediene decision.

The court has rejected without opinion all seven detainee habeas denials (now eight) appealed from the DC Circuit, plus the civil suit of Lebron/Padilla v Rumsfeld.  Scotusblog has more.

The NY Times called it a "retreat" and the LA Times, "bad judgment". Emptywheel headlined its story, "SCOTUS kills habeas corpus".

It's a significant setback for the rule of law, no matter who wins the next election and what changes occur in the composition of the court.

Marjorie Cohn and Steve Vladeck comment.

The unrepentant DC Circuit quickly added to the despair by its decision in the case of Doe v Rumsfeld involving a US citizen who says he was detained and mistreated by the US in Iraq.

The DC panel had no problem with that as long as it was a "war zone".

Jurist has more.

Nevertheless, the Abu Ghraib torture case has gone against corporate mercenaries in the newly progressive 4th Circuit. More here. 

Prof Vladeck, the token progressive at the terror-hysteric "national security" website Lawfare, has more.

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://www.justinian.com.au/).

See website for complete article licensing information.

From Roger Fitch and our friends down under

The Monte Cristo syndrome

ROGER FITCH ESQ • WEDNESDAY, MARCH 14, 2012

Guantánamo: give evidence against other prisoners and we might let you out, one day ... As long as you're not too angry ... The new prosecution paradigm and the latest stitch-up ... Plus, the legal basis for drone killing of Americans without due process ... Roger Fitch - Our Man in Washington 

"Farcical judicial trials conducted by us will destroy confidence in the judicial process as quickly as those conducted by any other people ... there are certain things you cannot do under the guise of a judicial trial. Courts try cases, but cases also try courts." US Supreme Court Justice Robert Jackson, Chief Prosecutor, Nuremberg Tribunal. 

*   *   *

"Robert Jackson ... would turn over in his grave if he knew what was going on at Guantánamo." Henry King, Jr., Associate Prosecutor, Nuremberg. 

*   *   *

The first new military commission prosecution was recently announced, against the Pakistani Majid Khan. A plea bargain quickly followed. If all goes well, Mr Khan, held without charge since 2003, will be sentenced in 2016. Is that speedy, or what?

The media were mostly cock-a-hoop over the prospect of new "war crime convictions," even though Khan, like the all the other people charged in commissions since George Bush first set them up in November 2001, will not stand convicted of any crime actually applicable to him under the law of war. 

As Melina Milazzo, counsel for the Law and Security Program, noted:  

"The US military commission system, now in its third incarnation, faces lengthy litigation over the legality of trying individuals for offenses that do not actually constitute war crimes, the potential ex post facto problems with prosecuting conduct not considered criminal until the passage of the Military Commission Act, and the scope and meaning of the rule and procedures applicable during trials." 

Khan, who finished school in Baltimore, is the only Guantanamero with American resident status. 

He's a client of the Center for Constitutional Rights, which noted: 

"Majid Khan is unique among Guantánamo prisoners in two important respects. First, he has long had legal status in the United States, as well as other substantial, voluntary ties to this country, which vest him with full constitutional rights. Second, in March 2003, he was captured and forcibly disappeared by the United States. There is no serious dispute that he was abducted, imprisoned and tortured by US officials at secret overseas 'black sites' operated by the Central Intelligence Agency before he was transferred to Guantánamo Bay in September 2006. Nor is there any serious dispute that Majid Khan's detention and interrogation violated US and international law." 

Just as it seemed the question of constitutional rights would be litigated, however, Mr Khan made a deal. 

In return for a finite sentence, Khan will plead guilty and testify against Khalid Sheikh Mohamed.

The theory is that, since KSM has been badly tortured, "clean" evidence is needed for use against him. 

Majid Khan: tortured evidenceOf course, Majid Khan has also been tortured in the same CIA dungeons, so it's hard to see the point of the exercise, other than taking the current issue of Khan'storture off the table.

It would make more sense to use people who haven't been tortured, to grass up those who have. 

In any case, there's a Pentagon offer to remove from its dubious indefinite detention list those Gitmo prisoners who "co-operate".

It's part of a strategy to get prisoners to testify against each other in return for "lighter" plea-bargained sentences, or simply better treatment while awaiting justice. 

It's a new era, where Guantánamo prisoners will have to denounce each other to save their lives, or at least escape lifelong extrajudicial detention. 

Under the new prosecution paradigm, commission defendants will have to confess to pretend war crimes if they want to go home. From now on, plea bargains, and coffins, would seem the only way out. 

The media have descended into interminable discussions as to whether sentences have been "light" or "heavy", while neglecting to inquire if the crimes actually exist. 

Wittes: terror savantThe fact that the "war crimes" don't, in fact, exist is not seen as a problem. Successive US governments have skilfully prevented court rulings on the validity of any of the charges.

Luckily, when a defendant confesses as Khan did and pleads guilty, there's no appeal.   

At the conservative Lawfare, resident bush-lawyer and terrorism savant Ben Wittes thought the Khan stitch-up was great, and the Washington Post agreed.

The Atlantic and the Times, however, were not impressed, nor were the ACLU and Human Rights Watch.

*   *   *

The National Defence Authorisation Act, with its facility for military detention of civilian "terrorists," has only just passed (see January post), but signs of its intended use are already emerging. 

In DC Circuit appeals, the government is using the NDAA provisions to change the rules onhabeas for Gitmo prisoners.

Both the conservative New American and more liberal Arab American News are appalled.

Scotusblog has the latest update on the status of Gitmo habeas appeals.

*   *   *

Pentagon's Johnson: drone strikes are legalThe government claims it's adhering to law in its lethal drone strikes.

Pentagon General Counsel Jeh Johnson spoke at Yale Law School defending the aerial assassinations in a speech reviewed by Gabor Rona and Emptywheel. 

Attorney General Eric Holder followed-up Johnson's speech with an address at Northwestern Law School, setting out for the first time the legal basis for intentionally killing Americans without due process.

Georgetown law prof David Cole was highly critical of Holder's performance, and even the conservative Washington Times was shocked by the attorney general's assertion of an exclusively "presidential" due process.

*   *   *

Literary allusions have been used to analyse Guantánamo: Kafka's The Trial, and 1984.

The latest one explains the peculiar reluctance of the Pentagon to release a single innocent person from Gitmo. 

Dumas: unknown war crimes will do the trickThe Count of Monte Cristo effect cuts in when a person is thevictim of an outrageous miscarriage of justice. 

Readers of the classic novel by Alexandre Dumas will remember the vengeance of the innocent man unhinged by his shocking mistreatment.

Torture, humiliation and years of extrajudicial imprisonment - followed by sham trials for newly-invented crimes - will usually do the trick.

In the case of the "convicted terrorist" Omar Khadr, held at Guantánamo since his 2010 plea deal, there's also the palpable bad faith of a Canadian government that has failed to bring him home since he became eligible for repatriation last October.  

A fear of the Monte Cristo syndrome must be behind some Canadians trying to block Khadr's scheduled repatriation: they've got a psychiatrist who says Omar is "full of rage" over his treatment at Guantánamo.

Even if he wasn't a danger to Canadian society before, he is now.

Now that's a Catch-22. 

FROM ROGER FITCH AND OUR FRIENDS AT JUSTINIAN

Happy birthday Gitmo

ROGER FITCH ESQ • THURSDAY, JANUARY 12, 2012

Milestones and millstones ... Guantánamo's tenth birthday, as Bill of Rights turns 220 ... National Defence Authorisation Act allows for exciting possibilities - including military detention of US civilians ... The new Reichstag Fire Decree ... Latest from US Supremes ... Habeas - British courts step-in where DC Circuit fears to tread

The US reached a milestone on December 15: 220 years since the adoption of its famous Bill of Rights. 

It's older than the French Droits de l'Homme of 1793.

Nevertheless, for reasons best left to historians, on "Bill of Rights Day" Congress suspended large chunks of the 10 amendments (and effectively, habeas corpus) in theNational Defence Authorisation Act .

As expected, Mr Obama abandoned his shammed concerns about the NDAA, and approved a scheme for the military detention of civilians, not unlike the practices of foreign dictatorships. 

January 11 marked a less auspicious milestone: 10 years of the infamous Guantánamo internment camp.

At The Nation, Georgetown Law Prof David Cole reviewed the sordid history of Guantánamo, while Lakhdar Boumediene, the man whose US Supreme Court case established an offshore constitutional right to habeas, sounded off in the New York Times.

Thanks to the NDAA, the Gitmo dungeons will be there for years to come, perhaps for use by disloyal or disaffected Americans.

Comparisons are being made to President von Hindenburg's "Reichstag Fire Decree" of March 1933.  

Henceforth, we will have "a bill of rights for some," but not others.

It's what George Bush only dreamed of achieving, despite his efforts in the Padilla and al-Marri cases. Now, the authoritarian instinct is bipartisan. The complete interdiction ofhabeas is near.

The only constitutional grounds for suspension of habeas are rebellion and invasion. Ironically, the US is marking 200 years since the last war in which a foreign invasion occurred, the War of 1812 with Britain. 

Joanne Mariner and The Atlantic's Andrew Cohen examined Obama's embrace of latent martial law.

As Mariner noted, Obama started it all with a March 2009 brief in the Guantánamo Bay Cases, asserting the same expansive view of indefinite military detention claimed by George Bush. 

Gitmo: soon to be a home for disaffected Americans

Sadly, in justifying a war paradigm everywhere, not just battle zones, Obama's brief cited the words used by the Bush loyalist Judge Richard Leon, in the district court decision later reversed in Boumediene. 

Naturally, Lawfare isn't bothered, but the NDAA adds a new layer of junk law designed to displace valid international treaties that bind the US (eg, Geneva Conventions), as well as domestic laws like the Posse Comitatus Act (1878), which restricts the military at home.   

Armed with the NDAA, Congress will try to block Obama's plan (part of a peace initiative) to release Taliban military officials being held hostage - sorry, as "unprivileged belligerents" - at Guantánamo.

Obama's dismal civil liberties record is now considered worse than that of George Bush. 

The British, and even the Russians are bucketing the US for its poor human rights.   

Law Prof Jonathan Turley is particularly incensed.

Glenn Greenwald and Counterpunch are also outraged.   

*   *   *

The Supreme Court's latest cert grants have been announced. 

Already docketed is the civil suit of a man wrongly arrested for daring to touch Richard Cheney.

Meanwhile, Emily Bazelon reports on the Supreme Court's most vindictive decision this term.

At The Legal Pulse, the blog of the Republican-front Washington Legal Foundation, director Richard Samp is excited about the Supreme Court review of corporate responsibility under the Alien Tort Statute. 

Bill Blum: gadflySomewhat surprisingly, the Obama administration has filed anamicus brief in the Kiobel ATS case supporting corporate liability, perhaps because the defendant (Shell) is Anglo-Dutch. 

Another amicus in Kiobel was filed by a group of Nuremberg scholars, including Melbourne Law Prof Kevin Jon Heller.

The freelance gadfly Bill Blum is worried about three casesbefore the Supreme Court this term.

One of them is the Texas redistricting case. It's threatening to become another Bush v Gore. 

Scotusblog had a preview.

Other "political questions" are likely to be on the Supreme Court's docket.

*   *   *

The DC Circuit may have turned its back on habeas (see previous post) but the British human rights law firm Reprieve has won a great habeas victory in the English Court of Appeals, in a case involving a US-held detainee.

In Rahmatullah, the British court went where the DC circuit refused to go in Maqaleh.  

In nearly-identical Bagram detention cases, the UK court granted habeas to secure the release of a prisoner rendered to the prison from outside the Afghan theatre of war, a man who could easily have been one of the petitioners who won in DC district court but lost on appeal.  

British forces in Iraq had handed Yunus Rahmatullah over to the US, who shipped him to Afghanistan. 

The UK government has now demanded that the Americans release Rahmatullah.

As Harper's Scott Horton noted, the UK court implicitly rejected an opinion by Jack Goldsmith, then head of DoJ's Office of Legal Counsel and now teaching at Harvard and blogging at Lawfare.

Opinio Juris has more.

Goldsmith: ruled out Geneva protections for terror suspectsGoldsmith had opined that "operatives of international terrorist organizations" were not "protected persons" for purposes of Article 49 of the Fourth Geneva Convention, which provides that ...

"individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of motive." 

It would be nice if Article 49 provided some protections to the Gitmo deportees, but it only applies to "occupied territory", a status which was recognised in Iraq but not apparently in Afghanistan.

*   *   *

Amnesty International's new report Guantánamo: A Decade Of Damage To Human Rights lists "10 Anti-Human Rights Messages Guantánamo Still Sends".   

One of the messages is that victims of human rights violations can be left without a remedy, and that's exactly what happened to Abdul Rahim Al-Janko. 

Leon: Republicans' favourite DC judgeDC judge and Republican stalwart Richard Leon recently ruledthat Al-Janko, though innocent and found not to be an "enemy combatant" - by Leon himself - has no civil remedy for his years of lawless detention. 

More here.

Leon primly announced: 

"War, by its very nature, victimizes many of those caught in its wake. Innocent civilians are invariably killed, and sometimes even mistakenly imprisoned. Our legal system was never designed to provide a remedy in our courts for these inevitable tragedies."

How very convenient.

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FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER

The Republican dream

ROGER FITCH ESQ • THURSDAY, DECEMBER 22, 2011

Congressional fat cats ... Corporate crime and financial defalcation ... Constitutional violations ... Gridlock on judicial and ambassadorial nominations ... Roger Fitch surveys the Washington landscape 

Roll Call has a list of the 50 richest members of Congress, and the poorest is worth $6 million.

By co-incidence, Citizens for Responsibility and Ethics in Washington has a new 2011 "Most Corrupt" list for Congress and a "Funds for Favours" report.

For legislators still unsure how to vote, there are plenty of lobbyists to assist and reward them.   

In fact, 5,400 former Congressional staffers have taken the revolving door to become lobbyists since 2001.

*   *   *

Outside Congress, it's still welfare for the truly rich.

Wall Street bankers, having already received, by some estimates, $29.5 trillion in government benefits, are now as well-looked after by Democrats as by Republicans.

Take Obama's Securities and Exchange Commission.

The SEC is racing around the courts burying evidence and covering up crimes with consent decrees lacking any admissions of guilt by the recidivist banks.

The deals being offered smell so bad even federal judges are resisting the settlements.

We've seen nothing like it since 2006 (see my post), when Bush's Justice Department fixer Robert McCallum -  later ambassador to Australia - reduced the penalty in the Big Tobacco litigation from $130 billion to $10 billion.

Now, Manhattan Federal Court Judge Jed Rakoff has rejected the SEC's sweetheart settlement with Citigroup, giving heart to investors everywhere who have suffered from bank fraud during the Global Financial Crisis.

There is more here and here.

*   *   *

Heedless of all this corporate crime and financial defalcation, Congress is busy stripping law courts of jurisdiction over citizens and others the government calls "enemy combatants" due to their "terrorism", although terrorism, like banking, is hardly a military matter. 

It's hard to count the ways the National Defense Authorization Act violates the Constitution, but one might start with Article III, Section 2:

"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

That might permit a civilian trial at Guantánamo, except for the Sixth Amendment to the Constitution: 

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..." 

Anyway, military jurisdiction over civilians isn't a given, according to law prof Steve Vladeck.

This latest Pentagon pre-emption of civilian justice is opposed - by the Pentagon, the Director of National Intelligence, the CIA, the FBI and the Justice Department.

Japanese-Americans don't think much of it, either, but nothing seems likely to stop Congressshort of a presidential veto. 

Senator Ayotte: more tortureOne senator wants to bring back torture.

An amendment by Kelly Ayotte (R-NH) would have repealed the president's executive order banning torture, even as some observers worry about a torture return.

This badly-timed proposal came as the Senate Intelligence Committee was wrapping up its highly critical report on the CIA torture program.

Tea-Partiers are beginning to wake-up and former Bush officials are also opposed to the NDAA provisions. 

*   *   *

In Washington, the habeas hearings of Guantánamo prisoners, first required by appeals courts in 2003 and mandated by the Supreme Court in 2004 and 2008, are all but dead. 

The latest scorecard doesn't include the unsuccessful case of Fayiz Al-Kandari. He's the last of the Rasul petitioners to be considered by the DC Circuit.

Al-Kandari and Fawzi al-Odah  are the only two (of 16) still held from the landmark Rasul–Al Odah case (2004), the case that included the Australians Mamdouh Habib and David Hicks. 

Al-Kandari was an unpublished opinion by a CA panel composed of Brett Kavanaugh, Laurence Silberman and Douglas Ginsburg. 

It was no surprise, with an all-Republican panel and no oral argument.

Professor Vladeck has published a law review article on the four judges actively undermining the Supreme Court's Boumediene decision.

These include, in addition to Kavanaugh and Silberman, Judges Janice Rogers Brown and A. Raymond Randolph. 

*   *   *

Justia's John Dean thinks the Republican dream is post-2012 control of the Supreme Court.

In the meantime, Republicans are content to use parliamentary tactics - eg, the threat of filibuster - to prevent appointments to courts of appeal.

DuMont: appointment obstructedRepublicans have reason to delay: Obama's appointments have already caused the once reliably right-wing 4^th circuit to "turn left".  

Any reason will do to block an appointment. One of Obama's nominees to the Federal Circuit, Edward DuMont, has withdrawn after months of mean-spirited Republican obstruction of his appointment. 

His offence? He's openly gay, enough for some minority members of the Judiciary Committee to indefinitely block his appointment.

Another (successful) Federal Circuit nominee didn't have an easy time of it.

It took two-and-a-half years for Evan Wallach to get on the court.

Luckily, Senate Republicans didn't know about Wallach's devastating study of water torture (see my post of 2006).

In another high profile appointment, that of Caitlin Halligan to the DC Circuit, Senate Republicans have blocked Obama's nominee.   

Why? Because as New York's solicitor-general, she argued gun manufacturers were a public nuisance. 

The seat has been vacant since Chief Justice John Roberts was elevated to the Supreme Court in 2005.

Halligan: shot down over gun nuisance suitIt's not just judicial appointments. Sen. Jim DeMint (R-SC) has blocked the confirmation of an Obama appointee who received a recess appointment as ambassador to El Salvador.

The aptly-named DeMint objected to the ambassador's boyfriendof 20 years ago.

In the past, Obama had several opportunities to make recess appointments - those that the constitution provides can be made without Senate assent, during a Congressional recess.

Now the Republicans stay in continuous session to prevent such appointments.

There's a way out, if Obama has the cojónes to take it, but these he seems to have lost en route to the White House. 

From Roger Fitch and our friends down under...

Land of the brave

Monday, November 21, 2011
Justinian in Roger Fitch Esq

Former general counsel of the CIA under investigation over drone attack "murder" remark ... War crimes don't need a war (apparently) ... Novel offences likely to remain on the books ... Ideological Republican circuit judges flout the Supreme Court ... Our Man in Washington reports  

"Aside from the humanitarian aspects, it is well known that, under excruciating torture, a prisoner will admit almost any suggested crime. Such confessions are, of course, not admissible in trials in civilized nations... Some of our leaders have found that it is easy to forgo human rights for those who are considered to be subhuman, or 'enemy combatants'." 

  Jimmy Carter, the last American president moderately attached to human rights

It's all go in Washington.

The Supreme Court is back in action and has granted certiorari in the cases testing Mr Obama's health care legislation.

In Congress, Democrats doubtful about Democracy have joined Republicans rejecting the Republic and support language in the National Defence Authorization Bill that requires indefinite military detention.

Anyone claimed to have some connection with the Taliban, Al-Qaida or "associated forces" is at risk, even a citizen living in the US.

Over at Langley, the CIA is investigating its former general counsel John Rizzo for his remarks in a Newsweek article. 

In my March 21 post I reported how Mr Rizzo openly talked about the "murder" being carried out by CIA drone attacks. Now he's in trouble, not for running a murder program, but talking about it. 

Rizzo has other problems as well. 

Out on the 2012 presidential hustings, Republican aspirants naturally support assassinations, but several nostalgically cling to torture.

Republicans already in office around the country are busy passing new voting laws making it harder for five million suspected Democrats to vote in 2012 - that's more than the margin in two of the last three presidential elections. 

*   *   *

Rizzo: in strife for talking about drone "murder program"Torture and terrorists are also in the news at Guantánamo, where an arraignment has just been held in the first death penalty military commission brought by the US. 

Incredibly, the Obama administration chose a severely tortured prisoner for the guinea pig.

Now portrayed as the mastermind of the bombing of the USS Cole in Yemen in 2000, Abd al-Rahim al-Nashiri was merely an "unindicted co-conspirator" when two other USS Cole bombers were indicted in New York in May 2003. 

Although Nashiri was in US custody in 2003, he wasn't produced in New York as the CIA was busy torturing him in Thailand and/or Poland, perhaps to learn the whereabouts of the others - and get a confession. 

Polish prosecutors began an investigation of Nashiri's detention in Poland and accorded him "victim" status, but someone has nobbled the case. 

Allegedly, there's a document signed by Poland's former prime minister regulating the CIA prison and describing what to do "if a dead body of one of the persons held there should appear". 

Remote telecasts of the Guantánamo proceedings were allowed, with a 40-second delay to shield "sensitive information."

al-Nashiri: first death penalty commission adjournedThis might include embarrassing or criminal activity, such as the use of private contractors like the Boeing subsidiary Jeppesen Dataplan to abduct and render prisoners, and outright torture by the CIA, its contractors, and intelligence agencies in cooperating countries.

Nashiri is charged with various offences, none of them nice, but all save one unknown to the law of war. 

As I reported on May 21, these "war crimes" didn't even occur during a war, and the charges describe only one actual war crime, perfidy: 

"Abd al Rahim Hussayn Muhammad al Nashiri, an alien unprivileged enemy belligerent subject to trial by military commission, did, in or around Aden, Yemen, on or about 12 October 2000, in the context of and associated with hostilities, in violation of the law of war, to wit: by committing an act of perfidy, said act of perfidy being two men dressing in civilian clothing, waving at the crewmembers onboard USS COLE (DDG 67), and operating and detonating an explosives-laden civilian boat alongside a United States naval vessel, intentionally and unlawfully kill ... 17 persons." 

It's hard to see how Nashiri can be a belligerent, unprivileged or otherwise; there were no hostilities in Yemen in 2000 that would make his deeds a violation of the law of war. And perfidy, though a war crime, requires more than waving.

Nashiri's case has been adjourned, with the defendant sagely selecting a trial date after the US elections.

*   *   *

Judge Brown: partisan Republican ideologueShould he somehow be acquitted, Nashiri could still be held forever as an "enemy combatant".

That will be far easier now, thanks to a new opinion by Janice Rogers Brown that aggressively flouts the Supreme Court and Boumediene. 

Judge Brown is a partisan Republican ideologue whose appointment to the DC Circuit was battled by Democrats for two years. 

Her latest decision in the Latif case requires that district court judges hearing Guantánamo habeas cases always accord a presumption of regularity to government intelligence reports.

The decision worried Lawfare and the Times, while Emptywheel was alarmed at Latif's implications for Congressional military detentions.

Not satisfied with ignoring the Boumediene case in every Guantánamo habeas appeal, DC Circuit panels with right-wing majorities are cancelling oral arguments altogether.

No need to confuse them with facts and arguments. 

It demonstrates the surprising capacity of lower courts to circumvent and subvert Supreme Court precedent. 

*   *   *

The military commission of Salim Hamdan is on appeal in the DC Circuit, where Hamdan - now back in Yemen -is appealing his conviction for "material Support", recently upheld by the Court of Military Commission Review (see my June post). 

Mr Obama hasn't succeeded in filling the three vacancies on the DC Circuit, so there's a good chance Hamdan's  appeal will be assigned to Republican activists.

They're still a majority on the circuit and strongly attached to presidential power during real or rhetorical (terror) wars.

Unfortunately, the other CMCR decision upholding a novel war crime, that of Ali Hamza Al-Bahlul for "conspiracy" (see my October post), could escape judicial scrutiny because Al Bahlul is refusing to authorise an appeal.

That would leave conspiracy on the books as a war crime even though a plurality of the Supreme Court specifically rejected it in Hamdan.