FIVE YEARS LATER... but who's counting?' ...by H. Candace Gorman, Esq.

I know Mr. Al-Ghizzawi is counting, as are the 400 other men sitting in the wretched heat at Guantanamo bay Cuba. The expression “time flies” has no meaning to these men. At Guantanamo Bay time does not fly, it drags on, in a dry, cruel and sadistic way.

The first time I went to the base my client had already been there more than four years. The first part of his detention was spent in a cage with a strip of concrete around the sand floor. It was open to the elements: be it sun, rain, cold, or the occasional hurricane. The hovel erected by our government to house human beings looked like the animal shelter where we picked out a dog some years back, only our dog had a little covered corner where she could get away from the weather.

Mr. Al-Ghizzawi and the other men were eventually “upgraded” to the facilities they are currently living in. Now they have walls, a roof and barred windows. They have air conditioning and concrete floors. Everyday the air conditioning is blasting cold air on poor frail Mr. Al-Ghizzawi. He has no blanket (blankets are not allowed). Instead he has a plastic “thing” to cover himself with. This plastic “thing” is cold when it is cold and hot when it is hot. It is never washed and it stinks.

But the floors are washed. Everyday gallons of a pine sol like substance are thrown on the floors and the men are forced to breath in the fumes for hours until someone gets around to hosing the solvent off the door. Mr. Al-Ghizzawi described how his eyes and throat burn and how he coughs and gags, every day. Unfortunately, some of the guards laugh at the discomfort that this causes the men. Some even leave buckets with the solvent under the open windows so that Mr. Al-Ghizzawi and the other men are forced to continue breathing in the fumes all day and/or night. These men sit in their tiny cell: day after day, week after week, year after year. They have nothing to occupy their time.

As Mr. Al-Ghizzawi was telling me this, I was looking around at the tiny cell where we were meeting. We were at Camp Echo. Camp Echo is made up of several one-story buildings divided into two rooms by mesh grates. The eight feet by ten feet concrete buildings have no windows, but are somewhat air-conditioned (it’s not quite as hot as being out in the sun). The cell side contains a toilet/sink combination and a metal cot. The visitor side contains a table and chairs. The lawyers meet with their clients on the visitor side of this tiny cell. The client’s feet are shackled to the floor.

This same Camp Echo is where the interrogations take place. This fact is not lost on the detainees. On another day, an interrogator could be sitting in my very same chair asking Mr. Al-Ghizzawi or some other detainee whatever question it is that they think is relevant after five years of detention. The interrogations clearly focus on important issues. For example, in Mr. Al-Ghizzawi’s last interrogation (a few months ago) he was questioned at length about the type of perfume his wife wears. The answer, of course, was none. They were poor shopkeepers; they could not afford such a luxury. Mr. Al-Ghizzawi asked me why they ask him such stupid questions. I explained to him that he is probably being used for training purposes (for training the interrogators). In fact Rumsfeld said as much a few years back, that Guantanamo was a wonderful training ground for the interrogators. We know now that techniques developed at Guantánamo were applied expertly in Abu Ghraib. There is no other explanation for Mr. Al-Ghizzawi to be here. The military found Mr. Al-Ghizzawi to not be an enemy combatant when they were classifying the detainees. Unfortunately Washington overruled that determination, claiming five weeks later that they had new evidence. It was a crock. Mr. Al-Ghizzawi is truly an innocent man trapped in a living hell.

As we sat in Camp Echo and talked about his health problems and his family, I could feel the sweat pouring down my back. Each night after our meetings I would go back to my hotel room and wash my dripping wet clothes and think about the fact that Mr. Al-Ghizzawi does not have this, or any other, luxury. I wonder how Mr. Al-Ghizzawi can keep going, not charged with anything and with no end in sight. Amazingly, he even shows a sense of humor at times. How can he sit here and discuss with me notions about justice and civil rights and then go back to that cell with its wretched smell of pine oil, not knowing if he will ever get out of here?

Now that the men are in their “upgraded” facilities, they get very little time outside. Of course there are no trees or shade when they are outside, so it is a double edged sword to ask for time outside. (I can hear Rumsfeld saying “ok you want fresh air, stand out here for 10 hours.”) When they are led into the open pen area for their few minutes of “recreation” time, Mr. Al-Ghizzawi tells me the first thing he looks to see is which guards are on duty. If he is lucky, he might see the little cat that sometimes comes to the area. He says it is a nice little cat and the detainees try to bring it scraps of food when they can. He said the cat is very smart, it knows that certain of the uniformed men are very cruel and it does not come around when those particular guards are present. Mr. Al-Ghizzawi envies the luck of the cat, it can pick and choose when to show up.

So now we start year five. Mr. Al-Ghizzawi’s health is rapidly deteriorating from the effects of untreated hepatitis B and tuberculosis. His daughter, who was just a few months old when he was turned in for a bounty and whisked off to Guantanamo, will turn six soon. His wife and daughter live on the kindness of family. The bread and spice shop owned and operated by Mr. Al-Ghizzawi and his wife has been long since closed down (she cannot run the shop without him). Our courts and politicians have forsaken Mr. Al-Ghizzawi. The diplomats look the other way. Countries that understand just how awful the US has become refuse to take Guantanamo refugees, not because they are afraid the men are terrorist, but because they don’t want to be seen doing anything to help the US out of this awful mess we made for ourselves. Time will not look favorably to anything our country has done to the men of Guantánamo, but that is a bitter-sweet pill for the men we have caused to suffer so greatly.

When Mr. Al-Ghizzawi was explaining to me his early years at Guantanamo, he told me about a flower that had appeared outside his cage in the spring of 2002. Just one little flower poking its beautiful leaves and petals out of the sand. He was describing the flower to me, but I couldn’t quite figure out what kind of flower it was. He called it a primrose and maybe it was. He said to me “I am like that little flower. It didn’t belong there…. I don’t belong here either.”

H. Candace Gorman is a civil rights attorney in Chicago. Visit her blog at http://www.gtmoblog.blogspot.com/

Yes I am Pissed Off....

YES, I AM PISSED OFF

I often give speeches to groups that are interested in hearing about my experiences representing two men at Guantanamo. Last week I spoke to a group of high school students in the Chicago area. I had spoken to students from this same school a few years ago and now some of the students were getting ready to graduate and they wanted an update. Unfortunately I did not have anything heartening to say. My clients, who should have been released years ago, are still there. After one year of the Obama administration the Justice Department is still in a shambles and showing no signs of improving. But I was at least glad for the opportunity to remind these students, before they headed off to college or wherever else they are going, that there is still much that needs to be done if our country is going to remain a constitutional republic.

I started out my talk explaining to the students the driving force that led me in 2005 to agree to represent two men at Guantanamo. You see, I wasn’t planning on taking on the representation of someone at Guantanamo when I signed up to attend a bar association luncheon in 2005. I just thought it would be interesting to hear about the legal battles involved in the Guantanamo litigation. Anyway, it doesn’t really matter because I actually missed the luncheon. I was home sick and when the luncheon reminder popped up on my laptop that morning I just deleted it, thinking I will learn about Guantanamo some other day. Little did I know that that day would come so soon.  A few days after the missed luncheon I received an email thanking me for my attendance (!) and reminding me that there were still several hundred men without attorneys at Guantanamo. A few weeks after that email I volunteered to represent first one man at Guantanamo and later a second man. As they say, the rest is history.

However, the history has not been a pleasant one. I of course knew when I saw that email that I had no choice; I had to represent a Guantanamo prisoner. As I explained to the students, I took an oath when I became a lawyer (the same oath all lawyers must take) promising to defend the Constitution of the United States. I and the other attorneys representing men at Guantanamo take that oath very seriously (unlike attorneys Yoo, Bradbury and Bybee to name but a few). Our Constitution is more than an important document; it has been our country’s roadmap for a somewhat free and just society.  When we start to veer off the road it is incumbent on lawyers (and judges) to step in and try to uphold our system of law, because if we do not, no one will. So I proudly volunteered to do my part to maintain the rule of law and I took on the representation of a man at Guantanamo.

As I reminded the students, I did not pick which clients would be mine.  I volunteered to represent a man at Guantanamo that wanted an attorney. For all I knew my client could have turned out to be the “worst of the worst.” But that did not matter to me because this is not about guilt or innocence. You do not even get to guilt or innocence until you have been charged with something and none of the men at Guantanamo have been charged with anything. What I volunteered to do was to get a habeas hearing for my clients. Habeas Corpus literally means “you have the body.” A quaint phrase that perhaps can best be described as a summons to the jail keeper (in this case the pentagon) ordering the jail keeper to bring the person being held before a judge and explain to the judge why the person is being held. The judge then determines whether or not the jailer has the lawful authority to hold that person. If the judge determines that the jailer does have the legal authority the person will remain in custody and be tried in a court of law. If the Judge determines that there is no legal basis for holding the person then the person must be released from custody. The whole purpose of habeas corpus is to make sure that people are not rounded up arbitrarily and held indefinitely without charges filed against them. So when you hear habeas corpus described as the cornerstone of our judicial system you should think of it as the bracing wall for our judicial system: without habeas corpus our legal structure will fall apart.

I spent the next 20 minutes or so of my speech discussing my clients: men who were swept up following an unconscionable policy of offering “bounties” to anyone who turned over “terrorists and murderers,” no questions asked and no proof required. Men who have been held in the cruel confines of Guantanamo year after year for more than eight years with no charges filed against them. Men who have not seen or spoken to their wives and children all these years. Men, who despite the torture and humiliation still hold no ill will toward the American people.

I ended my talk discussing the irony of the Bush administration realizing early on that it was holding men who were wrongly picked up and over time they released more than two-thirds of the men quietly to their home countries, usually in the middle of the night. These men, who had been physically and psychologically tortured because we mistakenly thought they were terrorists, were sent home to try to rebuild their lives with no apology from us, and no help, financial or otherwise. By the time Obama became president the Bush administration had released more than 500 of the men that had been held at Guantanamo.  Of the approximately 240 men remaining at Guantanamo when Obama took office the Obama administration slowly determined that most of those men should also be released, without further ado. Unfortunately, and also without further ado, most of these men, including my clients, continue to languish at Guantanamo, while our ignorant politicians do their best to frighten and confuse the American people and most of our judges continue to refuse to give these men their habeas hearings.

 I always try to leave time for questions.  Like so many of my audiences the students had quietly listened to my talk with looks of concern on their young faces. It took a minute but then the questions started. In the back of the auditorium there was a young man who started to raise his hand a few times but each time put it down before I could call on him. Finally, he held his hand up high to get my attention and when I pointed to him he stood up, looked at me with an anguished expression on his face, and he asked: “Doesn’t this just piss you off? I mean, I am listening to you and I am getting really pissed off? …Are you pissed off?”

Although there were a few chuckles everyone knew this was a serious question. And then the bell rang and it was time for the students to go on to their classes. But no one moved. I looked at the young man and then at the other students and I answered slowly, “Yes……Yes, I am pissed off…. In fact, I am more pissed off than you could ever imagine.”

If there had been more time I would have explained to the students that I am not pissed off just because my two innocent clients are still sitting in that hellhole we call Guantanamo. I am pissed off because  my country continues to think it is ok to torture people; that my country thinks it is ok to round up people and put them in prison without ever charging them with wrongdoing; I am pissed off that Karl Rove has been replaced by Rahm Emanuel; that our country does not care if we abandon our civil law system for military law; that lawyers who fight to maintain our Constitution are branded terrorists; that my country is not bringing our war criminals to justice because we need to “look forward;”that we are spending our country’s hard earned money bailing out banks and making wars. I am pissed off that Obama did not tell us his whole slogan: “Yes we can… but we won’t.” I am pissed off every day when I get an email from the Pentagon announcing our latest casualties. I am pissed off at our feckless judges (but not 5/9s of our Supreme Court) who are afraid of the Guantanamo cases. I am pissed off at the American people who continue to allow themselves to be whipped into a frenzy of fear. I am pissed off that my country is falling apart and the American people only seem to care about stupid television shows.  Yes, I am pissed off and you should be too.

In fact, if you are not pissed off you are not paying attention….and that pisses me off too.

The torture chronicles

ROGER FITCH ESQ • FRIDAY, JANUARY 23, 2015

Splendid properties and the good life for the CIA's leading torturers ... Rectal rehydration deemed a normal medical procedure ... Feinstein report conveniently colour coded countries that hosted torture camps ... Blue, Black, Violet and Green ... Life at the Salt Pit ... Roger Fitch files from Washington  

A NEW year brings new challenges to the justice system in the US.

At Just Security blog, Jennifer Daskal has a list of the most important "national security" cases to watch in 2015, while Steve Vladeck gives his picks for 2014's "national security heroes," i.e. human rights upholders, national security having rather a bad name at the moment. 

Indeed, some things are looking up. There's even talk of observing the Geneva Conventions, with an end to military detentions linked to the Afghan war, now officially over.  

Significantly, the Supreme Court has never ruled that Congress's 2001 "Authorisation to Use Military Force" (AUMF) applies outside the Afghan adventure. 

In the court's 2004 Hamdi decision, Justice Sandra Day O'Connor said: 

"The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who 'engaged in an armed conflict against the United States.' If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of 'necessary and appropriate force', and therefore are authorized by the AUMF."

It may not be easy to dispose of the remaining Guantanameros, some held over 13 years. Will Obama release them? Even his most liberal supporters continue to prattle about men "too dangerous to release" - history and Geneva be damned.

*   *   *

Chez Zirbel: from black site to lush site

Meanwhile, life is good, if sometimes embarrassing, for former jailers and torturers: Matt Zirbel, for instance, who supervised the CIA torture station in Afghanistan known as "the Salt Pit" (see below).

Thanks to those ubiquitous internet ads for real estate, we can now admire the new digs of Mr Zirbel, who has suffered no known consequences for the hypothermia death of one of his off-the-books prisoners. 

As for the other actors and spectators in the torture drama that followed release of the Senate's Feinstein Report (see previous post), all are behaving pretty much as expected. 

In the case of George Bush's vice president, one headline said it all: Cheney's Depraved Defence of Torture.

Republican Senators can't see what the fuss is about, except the one who's been tortured, John McCain. 

James Mitchell, the horridly unethical psychologist identified as "architect" of the CIA's torture program, feels he's been hard done by and his life is in danger - it's all the Senate's fault for publicising his crimes.

Mitchell: CIA's torture guru

Mitchell cheerfully acknowledges he waterboarded men and watched and measured their reactions, artlessly admitting he conducted unlawful medical experiments in apparent violation of the Nuremberg Code. 

More here on the ghastly experiments at Gitmo that made it into a "battle lab" to study the limits of mistreated prisoners.

Others at the CIA are running around claiming everything they did was legal, and the agency's former director, the odious Michael Hayden, says "rectal rehydration", aka anal rape, is just a normal medical procedure.

Doctors not in the employ of the CIA beg to differ.

One person not heard from was Alfreda Bikowsky. The Intercept has an update on the CIA's "queen of torture". 

Bikowsky still holds a high position in the CIA. That could be the reason the CIA demanded her name be redacted three dozen times from the executive summary of CIA crimes that forms the Feinstein Report.  

Alfreda Bikowsky: torture queen. It is believed Bikowsky is the small woman at the back under the red star

Most likely, Alfreda is in hiding, after the disclosure of her home address in leafy northern Virginia. 

The European Centre for Constitutional and Human Rights has a special report on all the investigations and charges brought or pending against the CIA and US military jailers.  

The ECCHR has also filed a fresh complaint in Berlin against some of the more notorious Bush Gang members. 

The Feinstein Report identifies by colour-code the countries that harboured CIA torture camps, sorry, "black sites", giving new meaning to the phrase "beaten black and blue". Poland is "Blue", Romania "Black", Lithuania "Violet" and Thailand "Green". 

Following the report's release, officials of Country Blue finally admitted their country'smoney-motivated  participation in the CIA program.   

Country Black promised to have another look at its role in the CIA's Bucharest dungeon. Called "Bright Light", it was a stopover on Abd al-Rahim al-Nashiri's three or four-stop torture odyssey on the way to a military show trial now being presented at Gitmo.

The Romanian jail was found and photographed by the AP in 2008.  

Country Violet continues to stonewall, although Lithuanian flight plans and invoices have been gleaned from aviation contracts and submitted to the state prosecutor by the English human rights law firm Reprieve.

*   *   *

Salt Pit Afghanistan (© Space Imaging)

The creepy adherence to administrative practices in government outsourcing of patently criminal activity also extended to the CIA's in-house projects, i.e. Konzentrationslager in Afghanistan.

The most infamous of these was the Salt Pit, "Camp Cobalt" in the Feinstein Report.  

In a horrifying example of the attention to bureaucratic detail Hannah Arendt called "the banality of evil", the CIA brought civilian employees of the US Bureau of Prisons to Afghanistan to sign off on design standards for a secret facility specifically set up to torment and mistreat unlawfully-held prisoners.

The BOP found the prison was fine, in the very week an inmate froze to death on Matt Zirbel's watch.

The ACLU is now investigating BOP's participation through an FOI request.

As for the CIA's newly-confirmed torture site at Guantánamo, it's once again in the frame as a crime scene in the suspicious "triple suicide" of 2006, first reported by Harper's Scott Horton in 2010, and since studied by Seton Hall Law School in several reports.

Other reactions to the Feinstein Report are here and here.

Coincidentally, the opinion that Harry Truman eventually held of his diabolical creation has come to light. Al Jazeera has more. 

Torture by the US military abroad is yet to be addressed, but one of the three "enemy combatants" wrongly detained and mistreated by the Pentagon on US soil, Ali al-Marri, isabout to be released, having served a valid civil sentence in the US.

*   *   *

Finally, finding his cojones, Mr Obama induced the outgoing Democrat-controlled US Senate to confirm enough judges to put the president ahead of predecessors at this point in their tenures.

Confirmations in the new Congress will be another matter.  

Already, foxes are being installed in each Congressional henhouse, e.g. the running of the House Intelligence Committee will be entrusted to a Blackwater lobbyist.    

Whatever the 114th Congress does - or doesn't - do, the real action will be in those states whose citizens awoke November 5^th to Republican supermajorities in their legislatures. 

0 Comm

From Our Friends Down Under At Justinian

Law in the Age of Terror

ROGER FITCH ESQ • MONDAY, SEPTEMBER 29, 2014

Alien Tort law gives a leg-up to Abu Ghraib victims ... Preview of new Supreme Court term ... DoJ's misuse of state secrets privilege ... US ranking of billionaires according to their political influence ... Latest report on judicial corruption ... Roger Fitch, Our Man in Washington, reports 

Alien Tort cases reinstated by 4th Circuit

HURRAH, the Alien Tort Statute lives again!  

This 1789 Act of the young American republic was used to hold US-based corporations to account for their foreign depredations, until the Supreme Court in its 2012 Kiobel decision ruled that overseas conduct must "touch and concern" the US with "sufficient force" to overcome a presumption against extraterritorial application of the statute.

As recently as July, the reliably-conservative 11^th Circuit ruled, in the Chiquita case, that there was no ATS jurisdiction over a US corporation for its admitted misdeeds in Columbia.

Now, following Mr Obama's judicial appointments, the formerly conservative 4^th Circuit has reinstated, en banc, ATS cases brought by former Abu Ghraib prisoners against the mercenary torturers, sorry, contract interrogators, hired by the US to provide "services" at the infamous Iraqi jail.  

Here's the latest twist in Al Shimari v CACI.  

It's hoped that the 4th Circuit's change of heart will spread across the Potomac to the DC Circuit, where there's been a request for en banc reconsideration of the civil case of Allaithi v Rumsfeld.

That case notoriously found that military wrongdoers acted within the scope of their employment, and anyway, Guantánamo internees weren't "persons" under the Religious Freedom Restoration Act.

Another DC case where en banc will be sought - now that Obama's four appointments have broken a right-wing Republican stranglehold on the circuit - is the Guantánamo counsel access case, Hatim.  

Yet there's a problem: the panel decision being appealed included a Democrat, Chief Judge Merrick Garland. 

Steve Vladeck has more.  

After his en banc partial win, the Guantanamero Ali Hamza Al-Bahlul is making another attempt before a DC Circuit panel to have his "conspiracy" conviction(s) thrown out.  

Here's the supporting amicus brief of the National Institute of Military Justice. Steve Vladeck comments.  

David Glazier also has a brief. Others are here, and none of them support the government.  

*   *   *

Georgetown Law has a preview of the Supreme Court term starting in October.

The court will be asked to consider a serious anomaly in federal court sentencing where, following conviction, a judge can impose "terrorist enhancements" in light of alleged conduct on which the jury acquitted. 

Tarek Mehanna: 17 years for translating terrorist material

The court may hear the contentious case of Tarek Mehanna, given 17 years jail, mainly for translating terrorist articles. Before the Age of Terror, the First Amendment protected free speech, no matter how repellent.

One of the most notorious foreign detention cases of the Bush-Obama era, Al Maqaleh, was poised for Supreme Court review, but as often happens, the matter may have been resolved through a familiar technique: releasing prisoners just as they file their petition forcertiorari.

The ploy fooled no one.  

The Washington Post and Just Security have more. 

Al Maqaleh concerned non-Afghan detainees held in Bagram prison who, despite their initial success in John Bates' district court, were denied habeas by the DC Circuit. 

Joining the released Yemeni petitioners Fadi Al Maqaleh and Amin Al Bakri were two Pakistanis, Hamidullah Khan (already released by the US last November) and Amanatullah Ali.  

Amanatullah was one of two Pakistanis (the other, Yunus Rahmatullah, was released by the US in May of this year) who were removed by the US from occupied Iraq to Afghanistan, conduct a UK court assumed was a war crime under the Geneva Conventions. 

The argument of the petitioners has been simple: the Pentagon moved them to a war zone, Afghanistan, with the effect and perhaps purpose of denying them habeas, and "theMilitary Commissions Act of 2006 ... violates the Suspension Clause in its application to citizens of countries other than the United States or Afghanistan whom the Executive captured outside of either country, far from any recognized battlefield".

Rahmatullah's civil suit for damages is underway in the UK, more here. 

More Pakistanis have now been released, perhaps including Amanatullah.

*   *   *

Dean: knows a lot about government abuse of state secrets privilege

The Justice Department recently claimed that judges couldn't look at documents the government claims are subject to the "state secrets" privilege. Such review would be "inappropriate". The judge disagreed. John Dean comments on the increased misuse of the privilege. 

The Bush-Obama DoJ has meanwhile had a win in its punishment agenda, with a federal district court reluctantly extending the prison term of the long-suffering, Pentagon-tortured José Padilla.  

An outraged Andy Worthington has more. 

Steve Vladeck has a timely reflection on the tenth anniversary of the Supreme Court's decisions in Padilla, Hamdi and Rasul, David Hicks' case.   

As for Hicks, his fresh appeal to the Pentagon's drumhead Court of Military Commission Review has been renewed in light of July's en banc DC Circuit ruling (in Al-Bahlul) that Material Support for Terrorism was not in fact a war crime at the time he (and all the others) were convicted of it.  

More here and here.

*   *   *

Rupert is number six

The Brookings Institution's resident bush-lawyer and terror-savant, Ben Wittes, is cock-a-hoop that the DoJ found an internal memorandum from 1944 alluding to the possibleexistence of Justice's recently-minted common law of war, as a basis for America's unique"conspiracy" war crime.

Curiously, Brookings is one of three organisations profiled by the NY Times in a report on "think tank" influence-peddling on behalf of foreign governments.  

Without irony, Brookings just published its own research into the ranking of US billionaires based on the amount of political influence they exert. 

*   *   *

A law prohibiting same-sex marriage has been upheld by a New Orleans federal district court, apparently the first, since the Supreme Court handed down US v Windsor in 2013. A state judge in Louisiana promptly ruled the other way.  

Scotusblog has more on the marriage equality cases.    

*   *   *

The latest report on judicial corruption, or rather, election spending, is out now at the Justice at Stake website.

In one state - Wisconsin - judicial behaviour has crossed an alarming threshold, with both an appointed (federal) and elected (state) judge conspicuously intervening to protect the controversial Republican governor from an election finance investigation. 

The 7^th Circuit reined in the federal judge, but the state supreme court remains a majorobstacle to election irregularity inquiries. 

*   *   *

Smart coppers not permitted

In recent years, the Supreme Court has had to deal with states determined to boost the IQ of death row inmates so they can legally execute them.  

There are occasions, however, when authorities prefer a lower IQ.  

Confirming something Fitch always suspected, the 2^nd Circuit has ruled that prospective police can be refused employment if their IQs are too high. Really.  

From Roger Fitch and our Friends down under at Justinian.

End of term

Wednesday, July 2, 2014
Justinian in Guantanamo, Law of war, Military Commissions, Roger Fitch Esq, Same-sex marriage, US Supreme Court

Supreme Court lets God into the Affordable Care Act ... And strikes down certain compulsory union dues ... At last - a Guantánamo detainee charged with a genuine war crime ... Obama's Taliban prisoner swap ... Whatever you do, don't shoot at an American in a war ... From Our Man in Washington, Roger Fitch 

THE Supreme Court ended its term with a bomb.  

In Burrell v Hobby Lobby, a new class of God-fearing corporations has been allowed to evade – on religious grounds – the contraception coverage that the Affordable Care Act requires in employee health insurance. 

This new-found piety in closely-held corporations is based on the First Amendment's personal religious freedom, but the all-Catholic-male majority put its faith in the Religious Freedom Restoration Act. 

It's the same RFRA whose protections were denied to Muslims in Guantánamo by the DC Circuit in Rasul v Myers on the basis that Gitmo detainees were not persons in the meaning of the Act (see Fitch of January 22, 2008). 

Thus, some corporations now have personal religious freedoms, while other, flesh-and-blood persons don't.  

Scotusblog has more on Hobby Lobby here. 

The end of term also brought bad news for unions.

In Harris v Quinn, the court struck down certain compulsory union dues. 

NLRB v Noel Canning, another big decision in the term's final weeks, concerned the presidential power to make recess appointments; the president lost, but in defining "recess", the court rejected the partisan DC Circuit's "originalist" reasoning.

Warrants will be required for mobile phone searches.     

The Court refused to consider the journalist privilege case of NY Times reporter James Risen.

In Hall v Florida, Justice Anthony Kennedy did the right thing on mental disability death penalty cases.  

It's been a year since the Supreme Court decided the marriage equality case US v Windsor, and all 50 states have now had challenges filed to laws that restrict marriage to opposite sex partners.  None of the appeals (by states, thus far) reached the Supreme Court this term.

Here's a review of the federal appeals stage; only the conservative 5^th Circuit (Texas, Louisiana, Mississippi) seems likely to sustain same-sex restrictions.

Marshall: led the same-sex marriage tide on state appeal courts

As the tally of jurisdictions allowing same-sex marriages stood at 19 states, DC, and several Indian Nations, the Washington Post interviewed Margaret H. Marshall, former Chief Justice of the Massachusetts Supreme Judicial Court.  

Marshall presided when the SJC - the oldest appellate court in the Americas – became the first in the US to recognise such marriages.  As in its 1783 abolition of slavery, the court made its 2003 decision based on a straightforward reading of the Massachusetts constitution.

The lower court consensus on marriage equality may influence the Supreme Court's jurisprudence on the subject. Perhaps the cases will not, in the end, run afoul of the Supreme Court and the goals of its "movement conservative" majority.

Nothing is certain, however.  Long-time Supreme Court observer Linda Greenhouse has reluctantly concluded that there is now an unmistakable ideological agenda among the Republican justices, one that includes surreptitiously dropping unnecessary dicta in current cases for future, more sinister, use.  

An example of recent majority law-making – extinguishing class actions through compulsory arbitration - has been written up in the current Washington Monthly.

It seemed the right time for revelations that the court retrospectively alters opinions.  John Dean comments. 

*   *   *

IN the latest chapter of America's long-running experiment in improvised justice, the Iraqi Abd al-Hadi has been arraigned at a Guantánamo military commission, charged with genuine war crimes. 

It's a first, aside from some previous charges that, sadly, didn't even occur during war (e.g. al-Nashiri, below).  The Miami Herald has more. 

Naturally, the Pentagon threw in a fake charge for good measure, with pages of "overt acts" unrelated to the Afghan war and/or occurring as early as 1996, to support the invalid charge of conspiracy, recently dropped from the other commission prosecutions.

In some irrelevant allegations the Pentagon seemed about to extend the unique battlefield impunity that US soldiers enjoy to Canadians and other allies, but on closer inspection, all but one act injuring an ally seems to have involved the commission of a valid, recognised, war crime.  

It's complicated, but for now, only US soldiers can shoot at, but not be shot by, disfavoured belligerents.     

Nevertheless, the al-Hadi case represents real progress for the commissions, after years of claiming as war crimes, things that were ordinary acts of wartime hostilities or that occurred outside any armed conflict.

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Bergdahl: Taliban prisoner swap

AN exchange of US and Taliban prisoners has caused controversy in the States.  

Mr Obama, it's true, failed to give Congress 30 days' notice, but the exchange itself seems unremarkable.  

Sgt Bowe Bergdahl, a US soldier held unlawfully by the Taliban for five years, was released in exchange for five Taliban prisoners including high military officials who were unlawfully denied prisoner of war status by the US for 12 years at Guantánamo.  

It seems odd the administration has to defend its release of Taliban prisoners – real military prisoners, unlike most at Gitmo, and men, moreover, imprisoned for years in conditions violating the Geneva Conventions - in an exchange for a US soldier held captive in tough conditions by the Taliban.

Nevertheless, there were claims that the Taliban soldiers were "too dangerous" to be released, and much was made of the possibility that Sgt Bergdahl deserted.

House Republicans, unversed in the Geneva Conventions, were shocked, and with media help, described the Taliban generals and government officials as "terrorists", notwithstanding their capture in a war with the US in which they were lawful belligerents.  

It's come to this: anyone - military or civilian - opposing US soldiers is now a terrorist.  

Yet as law prof David Glazier points out,  "the law of war does not proscribe the routine killing of combatants, even by those with no right to participate in hostilities" (see post of September 13, 2010). 

To be sure, two of the prisoners may have committed acts of terrorism, indeed war crimes - before the US arrived in Afghanistan - but in the context of US involvement, the exchanged Taliban are simply prisoners from the US-Afghan war.  

Martins: chief Guantánamo prosecutor

In fact, the chief prosecutor at Guantánamo, Brig General Mark Martins, implied they couldn't face prosecution in a US military commission because their alleged war crimes occurred in 1998, before the US was involved, and the general suggested they might be prosecuted in other fora, e.g. international tribunals. 

Even so, Gen Martins is continuing his death penalty prosecution against Abd al-Rahim al-Nashiri for events occurring in 2000, before the US was at war. It's a classic case of Pentagon cognitive dissonance.

A Murdoch presenter thought execution should be considered for Sgt Bergdahl, but the soldier needn't worry:  only one American deserter has been executed since the Civil War, and desertion may not be a capital offence now. 

Whatever. With cries of "Benghazi and Bergdahl," the Republicans are ginning up their sham scandal machine for the 2014 election.   

It always works a treat with hapless Democrats and a confused electorate, and this year the Republicans will be aided by the deep pockets of the Koch Brothers (net worth: $100 billion) and, by some claims, 300 other billionaires.

It's all part of the rich tapestry of American political life, freed by the Supreme Court from onerous election finance laws.

From My Friends Down Under At Justinian....

More blockbusters coming to you

ROGER FITCH ESQ • MONDAY, SEPTEMBER 30, 2013

Israel given unfiltered NSA data ... All phone calls in the US are "relevant to terrorism" ... Defence contractor successfully sues torture victims for costs ... NY designates city mosques as "terrorism enterprises" ... US Supremes in need of a code of conduct ... Nixon on judicial appointments ... Roger Fitch files from the town in the process of shutting down  

David Miranda (right): dodgy detention at Heathrow

BEING "mirandised" took on a new meaning last month at Heathrow Airport. 

There's more here and here on the dodgy detention of Glenn Greenwald's Brazilian partner David Miranda and Brazil's response.

The British spy agency GCHQ even resorted to self-abasement before UK courts to get the right to look at the Miranda material, claiming its agents might be recruited by foreign enemies, if names were known.  

Section 7 of the UK Terrorism Act was used again at Gatwick Airport to detain another Obama critic. Isn't the UK-US relationship "special"?

Fresh from overseeing the smashing of computers at the Guardian, the British spooks next demanded the NY Times destroy its copy of Snowden's revelations; their alarm was understandable, if you look at GCHQ's training slides.

In the US, the scandal keeps spreading, with the news that the NSA has already hacked or stolen the encryption keys it needs to read most of the world's communications. Indeed, NSA supercomputers make encryption pointless.

Obama has been even more "aggressive" in spying than George Bush, lifting restrictions on the collection of Americans' data imposed by the previous government.

The FISA court released a number of newly-declassified orders approving collections of data, but their reasoning seems at odds with Supreme Court decisions.  

It's not surprising, with no counter-advocacy.

In fact, the FISA court reports no US telecom has ever challenged its orders.

Industrial espionage by the US has now surfaced - in Brazil - and that country has considereddropping out of the Internet altogether. 

By contrast, Israel is on the receiving end of data, though the NY Times didn't consider it news fit to print. 

The US Memorandum of Understanding giving Israel raw unfiltered NSA data on Americans could be a model for agreements with other foreign "friends", e.g. Australia.  

The Justice Department is now asserting that all phone calls in the US are "relevant" to "terrorism".

If a Smartphone is used, a lot more is on tap.

According to Der Spiegel, the NSA finds Smartphones offer a data bonanza. 

Foreign companies are benefiting as a result. Deutsche Telekom is enjoying a boom in its email business.

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CONFLATING war with civilian terrorism in order to justify indefinite military detention is still a popular pastime of the US government.

A critical study of America's other Guantánamo - Bagram prison in Afghanistan, which holds non-Afghans - mainly Pakistanis - has been released by the human rights law firm Justice Project Pakistan.  

At the moment, non-Afghan Bagram prisoners have three habeas claims in court in the DC Circuit for the second time.  

There's more here on Maqaleh and other non-Afghans held in Afghanistan, some taken to a war zone for the express purpose of defeating their habeas claims. 

One of the petitioners, the Pakistani Amanatullah, was removed from occupied Iraq to Afghanistan.

According to British courts who heard the case of the similarly-situated Bagram prisonerRahmatullah that's a war crime.  

Scotusblog has more on the DC cases. 

Some prisoners of the US who remained in occupied Iraq - in accordance with the Geneva Conventions - were left to the tender mercy of mercenary interrogators at the Abu Ghraib prison.

A few brought civil suits in the US for their mistreatment. Recently, these plaintiffs unexpectedly lost their suit, based on the trial judge's contentious interpretation of the Supreme Court's recent Kiobel decision (see post of July 2013) on the scope of the Alien Tort Statute.

The triumphant defence contractor CACI International, who provided the contract "interrogation services" at Abu Ghraib, had the chutzpah to counter-sue the torture victims for costs, and they've been granted.

There's background here and here, plus earlier posts on the case here and here. 

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Mosques next to be frisked

THE New York Police Department was rebuffed by both the courts and city council for its racial-profile "stop and frisk" policy.  

Now NY's finest are in the news again, with a novel counter-terrorism policy: by merely designating the city's mosques "Terrorism Enterprises," NYPD investigations can proceed with a minimum of fuss.  

More here.  

If upheld, this interesting gloss on the First Amendment could supply a much-needed precedent for investigating turbulent priests and rabbis. 

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Ginsburg: dismayed by the Roberts court majority

DURING the summer recess, Supreme Court Justice Ruth Bader Ginsburg let loose on the Roberts Court for its blatant activism.

Now, as the October term of the Supreme Court approaches, proposals are being made for a code of ethics for the court.  

It's the only federal court without such a code, and it helps explain Bush v Gore, where at least three of the Bush-selectors had invested their family's future in the winning regime.

The court's first big case in the new term will be McCutcheon v Federal Election Commission,testing campaign contribution limits.  It has alarming implications for US elections. 

Another blockbuster case on its way to the court concerns the Texas vote-suppression laws. Faced with a permanent white minority in Texas, the Republican state has applied its new voter ID law.  

It's designed to knock the Hispanic plurality vote on the head, simultaneously disenfranchising poor blacks and university students. The latter wonder why they can't use student IDs, when concealed weapon owners are allowed to vote with their gun permits.  

The US Justice Department has sued Texas, and they've been joined by others.  

A case unlikely to be granted certiorari is that of Ali Saleh al-Marri, the Qatari who holds the distinction of being the only civilian - other than José Padilla - arrested on US soil and designated one of George Bush's imaginary "enemy combatants".  

Although he is now in prison after a lawful conviction in a civilian court, al-Marri preserved his right of appeal against one of the most infamous manoeuvres of the Bush Regime.

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Nixon and Haig: looking for the "meanest right wing" judges

MEANWHILE, the criteria for selecting US federal judges – Supreme Court included - have received fresh light.  After forty years, the Nixon Library has released the final batch of the former president's incriminating audio tapes.   

In a July 12, 1973, conversation with his chief of staff Al Haig, Nixon may be heard discussing future judicial nominations, urging Haig to find the "meanest right-wing" nominees. 

The newly-released tapes lay out the Republican strategy for judicial appointments, now successfully implemented, especially in DC, and in the three southern circuits with a generous supply of pertinently-skilled lawyers.