From Roger Fitch and our Friends Down Under at Justinian

 

Ominous agenda of SCOTUS' supermajority

ROGER FITCH ESQ • WEDNESDAY, OCTOBER 13, 2021

Stonewalling the January 6 investigation ... Obstruction of justice is flavour of the season ... Midterm dangers ... Huge report on attempted subversion of the DoJ ... Supreme Court docket ... "State secrets" ... Legal theory in support of election heist ... From Washington Roger Fitch reports 

"[T]he reprieve that we experienced when Trump did in fact leave office ... will be quite brief. By 2022, or 2024 at the latest, we will see that the American political system has been hopelessly corrupted, with Republicans having successfully ended any serious prospect of honest political competition ... it seems that we are merely waiting for the end ... We were never by any means a perfect constitutional democracy (having only had something roughly resembling widespread voting rights for about the last fifty-six years, among other obvious flaws) ..." - Neil Buchanan

The rising tide of Republican lawlessness has become a Tsunami, and doomsday predictions of America's future are now common. F

Briefly, Republicans seem prepared to destroy America in order to save it from Democrats. 

One example: stonewalling house Republicans are resorting to extortion to prevent disclosure of their telephone records to the house committee investigating the January 6 Capitol invasion, while their former president, fresh from his campaign to steal the 2020 election, openly backs party candidates he believes will support his plans to steal the 2024 election. 

The Republican caucus in the House of Representatives is bad enough already: two-thirds of members attempted to prevent the routine confirmation of the 2020 election results, and are resisting both house and senate investigations of some of the serial crimes and personal corruption of the last president.

One example: abuse of his government lease for Washington's Old Post Office, fitted-out as a luxury Trump hostelry.

According to documents released by the House Oversight Committee, the Trump International Hotel actually lost $70 million while its eponymous lessee was president: that's despite millions in foreign government backhanders disguised as bookings. 

Trump's loss leading hotel

The House Judiciary Committee is currently investigating the January 6 insurrection, including the former president's brazen plot to steal the election (more here), and has issued subpoenas for testimony by former Trump associates. 

The litigation-entangled Trump responded by "ordering" former aides to flout their subpoenas, a textbook obstruction of  justice; in any case, President Biden overruled Trumped-up claims of executive privilege. 

Yet sadly, time is on Trump's side: Republicans, armed with fresh decennial gerrymanders and reliant on the gullibility of voters, will likely retake the house of reps next year and close down inquiries. What's really needed is a special prosecutor, as proposed in a 1987 Chapel Hill law review article by JR Biden Jr. 

The many criminal investigations of Trump (including in Georgia) are another matter. Prosecutors retain a measure of independence, and there is hope that a successful prosecution of the former president for one or another of his many criminal defalcations and abuses of power will in future modestly deter the Republican Party. 

Just Security argued for a Justice Department investigation of Trump's White House Chief of Staff Mark Meadows, as well as the president's DoJ mole Jeffrey Clark, now the subject of a DC Bar Association complaint. 

Emptywheel's Marcy Wheeler speculated on how the Justice Department might bring charges against Donald Trump himself for his participation in January 6th.

Meanwhile, there's a 394-page interim Senate Judiciary Committee report on Trump's efforts to alter the election results through DoJ subversion. Lawfare comments.

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Blowback from the "war on terror" of the early 2000s still affects the supreme court docket: one of the first cases argued in the court's new October term was that of Abu Zubaydah, the long-suffering, much-abused Guantánamo internee. 

Zubaydah's detention and mistreatment was one of the earliest emanations of that time when George Bush, aided and abetted by congress, effectively blew up the rule of law, and consequently, federal criminal (and sometimes civil) justice: not just through torture, but in the torture cover-up, repeatedly claiming, in shameless bad faith, the so-called state secrets privilege. 

The Zubaydah case, now in the supreme court, directly confronts the question, how does the privilege apply when the "state secret" - the fact that Poland assisted CIA torture - is not a secret at all. 

The Poles themselves have already acknowledged their participation and even paid damages to Zubaydah, in the European Court of Human Rights; however, they haven't gone so far as to give tours of the former US torture facilities, as the Taliban are doing in Afghanistan.

An amicus brief filed by the Bureau of Investigative Journalism demonstrates why the case does not in fact involve state secrets, more here, oral argument here. 

Although the justices appeared unlikely to rule in Zubaydah's favour on the state secrets issue, they seemed genuinely astonished that the prisoner's habeas petition had not been acted upon since 2008. 

The court will also hear another "state secrets" case this term, involving FBI surveillance.

Nine important cases are already on the supreme court's docket for the October term, including a case in which, surprisingly, public defenders joined the enemy gun camp in opposing New York's concealed-gun regulations. 

Berkeley law dean Erwin Chemerinsky has a preview of the supreme court's term, and a new book warning of the right-wing court's ominous agenda; the Nation's Ely Mystal, a Harvard lawyer, also paints a bleak view of the likely regressive direction of the court's new conservative supermajority. 

Berkeley's Chemerinsky: court's ominous agenda

In its recent recess orders overturning Biden administration executive orders, so at variance with the court's deferential treatment of Trump's orders, the majority seems to be siding with Republican party policy, issuing transparently partisan decisions; so far, the court has favoured Trump executive orders 28 times compared to zero for Biden. More here. 

If these shadow docket decisions are any indication, Donald Trump's ideological judicial appointments portend a partisan court that will be anti-progressive, anti-regulatory and pro-corporate, a rubber stamp for Republican causes and initiatives that will last for years.

The court has also weaponised lower court orders of Trump-appointed judges, as in the case of states' meddling in immigration, here and here. The district court judges, both sitting in Texas, ruled in response to red border states who oppose the Biden administration's immigration policies, policies heretofore considered exclusively within the purview of the federal government.

This latest supreme court mischief has only increased calls for judicial reforms, including additional members for the court.

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Eastman with troubled comrade Giuliani

Lawyers may enjoy the improbable saga of the opportunistic hack John Eastman who, courtesy of Fox News, rose from legal obscurity to advance legal theories threatening the republic itself.

The New Republic reported on ex-law dean Eastman's seditious (though initially underreported) memos to Vice-President Pence. The Atlantic considered the overall scheme. More here. 

Many lawyers have urged the California Bar Association to take disciplinary action against Eastman, something the bar failed to do with the notorious Berkeley law prof John Yoo.

At least Eastman's advice - unlike Yoo's public-service torture memos - wasn't cooked-up at taxpayer expense. 

From Roger Fitch and our friends down under at Justinian

 

The tail end of the American century

ROGER FITCH ESQ • TUESDAY, SEPTEMBER 14, 2021

Decline and fall following 9/11 ... Damage wrought by the "war on terror" ... Democracy looks wobbly ... Brigade of unscrupulous lawyers shredded the law ... Nacht und Nebel ... Guantánamo detainees now in the Taliban government ... Roger Fitch files from Washington 

Much has been written about the September 11, 2001 terrorist attacks on their 20th anniversary, mostly about how "9/11 changed the world". In hindsight, it was America's reaction that altered everything. One headline summed that up: The Most Terrifying Thing About 9/11 Was America's Response.

2021 also brought an end to the immensely counter-productive war in Afghanistan launched by George Bush and acquiesced in or joined by western nations. 

Osama bin Ladin, the ostensible target of the US invasion, left Afghanistan in the first year of the war. He was eventually captured in Pakistan, where summary judgment was rendered: quite unnecessary, with an open indictment in Manhattan. 

Ironically, it was a good man, Jimmy Carter, who in 1979 began the ill-advised Afghan involvement, largely at the urging of his national security adviser, Zbigniew Brzeziński (seen here). "Zbig" wanted to draw the Russians into Afghanistan and hasten the collapse of the Soviet Union. 

Many believe that ploy was successfully emulated by bin Laden when he drew the US into Afghanistan: the US suffered great internal stress and loss of its position in the world, and is currently threatened with the collapse of its democracy.

The failure of the Afghanistan intervention, coinciding with the 9/11 anniversary, caused Americans and foreign observers to stop and reflect on how the US government got everything wrong in the 20-year "Global War on Terror" that followed 9/11, beginning with George Bush's rejection of Taliban peace overtures. 

There's more in The Intercept and the New Republic on the Afghan fiasco.

Historians will rightly blame George Bush for many domestic effects that remained, e.g, an armaments industry in overdrive and a security state. 

Above all, there is a re-jigged justice system that has sanctioned the prosecution of combatants and militarised civilian crimes, epitomised by the extrajudicial detention at Guantánamo and "trials" in its kangaroo courts. 

Astonishingly, liberal democracies like Australia and Canada (and briefly, Britain and Germany) allowed their citizens to be caught up in proceedings that violated their own laws as well as American and international law. 

Zbigniew Brzezinski: father of the Afghan folly

Opportunistic, malleable, incompetent or merely dishonest, bad lawyers were at the heart of the Bush Administration's derailment of law. John Yoo, Jay Bybee, Patrick Philbin, Robert Delahunty, Timothy Flanigan, Daniel Levin, Steven Bradbury, Jim Haynes and Alberto Gonzales joined in memos that ignored the Torture and Geneva Conventions, "authorising" practices that first-year law students would recognise as illegal. 

"National Security" brought such things before. Although it's disputed, the law professor Scott Horton believes Bush's lawyers were as culpable as Hitler's Night and Fog lawyers, tried at Nuremberg in the Altstoetter case:

"Justice Department lawyers were ... charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht-und-Nebel [decree]. The United States charged that as lawyers ... they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were 'recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war' ... the two principal Justice Department lawyers ... were convicted and sentenced to ten years' imprisonment ...This judgment clearly established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom."  

*   *   *

While Karen Greenberg has lamented the overall damage to America's rule of law caused by the 20-year "War on Terror", others are turning their attention to righting particular terror-war wrongs, e.g, Guantánamo, its inmates and former inhabitants, and the treatment of Detainee 001, John Walker Lindt.  

Among those speaking out have been human rights lawyers, prisoner advocates and members of the Guantanamo Bar. They point out that, following the end of hostilities in Afghanistan, there's little legal basis for military detention of "law of war" prisoners, not charged with war crimes. 

Many were non-combatants, seized outside Afghanistan, and only five percent were captured by US soldiers on the battlefield. All were presumed by George Bush to be unlawful fighters, fictional "enemy combatants".

Those who were in fact belligerents were often lawful ones, e.g, the five Taliban (see below) freed by Obama in a prisoner swap in 2014. 

They were fully entitled to the protections of the Geneva Conventions that the Pentagon had scrupulously provided in previous wars, e.g, PoW status hearings required under the Geneva Conventions and the US Code of Military Justice. The Vietcong received these, why not the Taliban? 

Instead, officials trying to follow the law were bullied, sacked or re-assigned (see Fitch here). 

Al Jazeera and the Times have more on the sordid history and present state of the Guantánamo project.

*   *   *

Gholam Ruhani: eight years at Guantánamo (pic: AP)

Guantánamo grad Gholam Ruhani turned up at the first Taliban appearance in the presidential palace in Kabul. He was Detainee 003, and like Detainee 002 (David Hicks) was released in 2007. 

Several Gitmo alumni were in the new Afghan government, e.g, Abdul Qayyum Zakir, the acting defence minister. 

Zakir was also one of the first Gitmo prisoners (Detainee 008). Though an Afghan military official, he was detained for years while successive US governments denied him a PoW status hearing in flagrant disregard of the Geneva Conventions and the US Code of Military Justice.

Another government minister, Khairullah Khairkhwa, was also a military official in the 2001 Taliban government, and one of those detained at Guantánamo in violation of Geneva; he was released under the Obama administration as part of a prisoner exchange for the captured US soldier Bowe Bergdahl. 

Both men had been held in conditions violating the Geneva Conventions.

*   *   *

At Guantánamo, military commission charges were finally approved against Riduan Isamuddin (Hambali) for the Bali bombings. The charges were laid by an outgoing Trump appointee, on Biden's first full day in office. The case was previously refused clearance to proceed, perhaps due to torture, the reason in Mohammed al-Qahtani's case. More here.

Pending Guantánamo proceedings suggest the US is still failing to recognise its anti-torture obligations, especially in the military commission proceedings, where torture-derived evidence remains on the table.

One such proceeding is that of Abd Al-Rahim al-Nashiri. Torture-derived evidence is the subject of his mandamus petition in the (cosmetic) Court of Military Commission Review; interestingly, Nashiri's torture was supervised by Gina Haspel, afterwards Trump's CIA director. The NYT has more. 

Even as al-Nashiri's lawyers argue against the use of evidence gained through torture, the DoJ is remaining silent on the right to due process in the al-Hela case now before the full DC Circuit. The supreme court is meanwhile considering the "state secrets" appeal of Abu Zubaydah (CCR has an amicus brief). 

 Conveniently, the CIA destroyed its most notorious torture facility, the Salt Pit, before leaving Afghanistan. 

From Roger Fitch and our Friends Down Under at Justinian

 

Struggling out of the quagmire

ROGER FITCH ESQ • THURSDAY, AUGUST 12, 2021

The Roberts Supreme Court Court and its obstructions ... Gerrymanders could see the Republicans take back the House ... Members of the "sedition caucus" to testify before January 6 committee ... Big money behind the claims of election fraud ... Trouble ahead for Trump lawyers ... Roger Fitch, Our Man in Washington, reports 

An "impulsive, mentally unstable and unbalanced individual who suffers from an inferiority complex" -  psychological assessment of Donald Trump provided to Vladimir Putin in January 2015.

"Rating Outlook is Negative ... The failure of the former president to concede the election and the events surrounding the certification of the results of the presidential election in Congress in January, have no recent parallels in other very highly rated sovereigns. The redrafting of election laws in some states could weaken the political system, increasing divergence between votes cast and party representation. These developments underline an ongoing risk of … difficulty in formulating policy and passing laws in Congress…" - Fitch Ratings, July 2021.

Perhaps the potential loss of America's treasured Triple-A sovereign Issuer Default Rating could make the country's seditious insurgents reconsider their goal of permanent, one-party government. 

Or maybe not. The Democrats seem too compromised and supine to either stop the new Jim Crow voting rights restrictions sweeping Trumpland, or - before there's another Putsch - invoke the 14th Amendment and exclude Trump from public office based on, e.g, his traitorous interference in the Justice Department.  

Perhaps the pending January 6 hearings will uncover sufficient treachery to justify such disqualification of Trump by states and congress. 

*   *   *

As expected, senate Republicans filibustered the Democrats' signature voting rights act for the usual (racist) reasons, and because of their well-founded expectation that stonewalling reforms will produce enduring one-party government at the next election.

If only the Democrats could carve out an exception for the filibuster, limited to constitutional issues, but that's difficult, due to rats in Democrat ranks. 

Filibusters aside, Biden and his party - with the vice-president's vote - have a working majority in the upper house, but they suffer from two backsliders, West Virginia's plutocrat senator Joe Manchin, and the slippery Kyrsten Sinema of Arizona. Sinema is so conservative that an Arizona Republic writer queried why she hasn't joined the Republican Party.

Senate Democrats have additional ideas for getting voting laws through the upper house, but a determined and mischievous conservative majority on the supreme court might still strike down new voting rights laws. 

Since the ascension of Chief Justice John Roberts, the decisions of the court's right-wing majority have increasingly aligned with the agenda of the Republicans who appointed them, in "total war" on congress, evident in Brnovich v DNC, the latest judicial attack on voting rights in the supreme court. 

There's a new book out on the groundwork that the Roberts Court laid for the current Republican assault on voting rights - obstructed throughout American history by the  court - and a vast suite of civil rights laws. A Progressive writer has a damning list of the worst decisions of the Roberts Court since the chief justice's appointment in 2005. 

The supreme court has been blessing gerrymanders since at least the notorious "second" decennial Texas redistricting of 2003 (heard and decided by the court in 2006). 

That was preceded by a Texas Democrat walkout, a tactic deployed again this year. It's a shame Obama didn't act in January 2009 - the last time  Democrats had a filibuster-proof congress - to pass laws preventing such shocking gerrymanders as that of Texas in 2003. 

Now Republicans are on the brink of retaking the house of representatives through gerrymanders that the supreme court effectively approved. Only four Republican-controlled southern states are needed to do it. One hopes that Biden's AG will meanwhile vigorously enforce existing laws abandoned by Trump's AG.

The only place safe for voting rights legislation now is in the state houses, where a newly-blue Virginia has gone from nearly worst, to one of the best.

*   *   *

In the lead up to the House of Representatives inquiry into the January 6th Capitol riot and insurrection, Just Security has created a "January 6 clearinghouse" site coordinating information relating to the event.

We already know that forewarnings of the insurrection were missed or ignored, and Jane Mayer, one of America's best investigative journalists, has a long read in the New Yorker on the big money behind Trump's ludicrous post-election fraud claims that culminated in the Capitol attack.

Justice Department leaks had already revealed the efforts of Trump to have DoJ assist in the overthrow of the election results. Now, career Justice Department officials are testifying to the machinations of Trump and his acolyte Jeffrey Clark (see below). 

The committee's subpoenas can't be resisted: the Attorney General has decided there will be no DoJ interference with subpoenas to former officials of the Trump administration. 

Trump's man Brooks: sued for incitement to violence

Nor will DoJ intervene to defend individual Republican congressmen who abetted the insurrection, e.g. Rep "Mo" Brooks who is being sued by Democrat Rep Eric Stalwell for his incitements to violence at the rally preceding the mob attack. 

As DoJ opined, "Inciting or conspiring to foment a violent attack on the United States Congress is not within the scope of employment of a Representative - or any federal employee".

Eventually, members of the Republican "sedition caucus" will be called to testify before the January 6 committee, and there's a precedent for that: the demands of Jefferson Davis, the future president of the Confederacy, when he was in the Senate. 

Attorney General Garland had already released the astounding draft brief that the Trump White House wanted the Justice Department to file in the supreme court, seeking to reverse the election. 

Garland has since issued restraints on communications between DoJ and the White House.  That's important in the light of the improper actions of Jeffrey Clark, the Justice underling who openly assisted Trump's efforts; notes exist attesting to their conspiratorial conversations.  

*   *   *

Trump administration lawyers are struggling to find jobs in Big Law, which is now accused of being left-wing by conservative groups like the Koch-funded right-wing New Civil Liberties Alliance.

Some of the tainted attorneys have been parachuted into conservative sinecures and "think tanks" (there's a new Trump-Tank in California). Clark himself landed on his feet in a Republican safe house: a rightwing law shop fighting mandatory Covid injections at Indiana University despite 7th circuit and supreme court decisions upholding compulsory vaccinations.

On the civil side, Trump's lying lawyers are in well-deserved disrepute and professional strife, in New York, Michigan (more here) and Colorado.

Commercially, times are tough for Trump himself, and it's not just litigation. Party baksheesh and backhanders are in steep decline at the various enterprises he  owns or promotes. Perhaps that's why America's crassest president is now reduced to using the presidential seal at his golf courses. There must be some intellectual property transgression there.

Meanwhile, presidential historians have been asked to rank America's presidents, again. Incredibly, there have been three worse than Donald Trump. 

The mind boggles. 

FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER AT JUSTINIAN

 

Mixed bag from SCOTUS

ROGER FITCH ESQ • MONDAY, JULY 5, 2021

Supreme Court wraps up its latest term with some notable shockers ... Another stick of gelignite to blow up the Voting Rights Act ... Secrecy for rich donors to political causes ... But freedom for profane speech ... Department of Justice going slow on prosecuting Capitol insurrectionists ... War criminal and former defence secretary dead at 88 ... Roger Fitch files from Washington 

The supreme court has concluded its October 2020 term. Decisions were mixed, but in the most important case, Obamacare was upheld for the third time against the baffling efforts of Republicans to destroy it. 

In other matters, the court's conservative Catholic faction, joined by liberals, was able to retrieve the fortunes of the Philadelphia diocese, who claimed a continued right to participate in foster care referrals despite their policy of non-referral to same-sex foster parents. More here on the 9-0 decision and it's likely aftermath. 

The decision of the court in the Nestlé and Cargill cases, respecting applicability of the Alien Tort Statute to corporate human rights abuses overseas, was expected - but provided a disappointing and alarmingly broad immunity for corporations. Only Justice Alito dissented.

The unanimous NCAA case, though fair to college athletes, represented a set-back for antitrust law. 

In the disturbing case of TransUnion v Ramirez, the Supreme Court held 5-4 that if plaintiffs cannot prove that their (incorrect) terrorist designation has actually been reported to third parties, they cannot sue because they lack a "concrete" injury under the court's (extremely-flexible) standing doctrine. 

As Michael Dorf explains, "That Congress had passed a law permitting individuals to sue credit agencies that fail to use reasonable procedures to ensure the accuracy of their credit reports did not matter".

There were "liberal" lst and 4th Amendment cases. The free speech case Mahanoy v B.L. affirmed a decision involving a school cheerleader's Snapchat profanity, while in Lange v California the supreme court narrowed police powers to enter a home without a warrant.

Property rights versus civil rights have been at the heart of constitutional conflict since the document was adopted, and a so-called employers' rights decision in the final days of the term was further proof. A powerful union-busting decision, Cedar Point Nursery v Hassid could be the biggest ideological stinker of the court's term, an important step in the conservatives' ambitious dismantling of Roosevelt's New Deal.

HollyFrontier Cheyenne Refining was another corporate victory. Without the help of the newest justice Amy Coney Barrett who joined the liberals, the conservatives made a free gift to polluting companies; ironically, the decision issued on the same day congress used its powers to disallow Trump's methane-boosting regulation. 

In two other cases, Collins v Yellen and Arthrex, the supreme court conservatives actually enhanced Biden's powers, increasing executive authority. 

The court's two deadliest decisions, however, were dead last.

Americans for Prosperity v Bonta will guarantee secrecy for rich donors to highly-political non-profits. The court accepted the non-profits' disingenuous claim that California's contribution disclosure rule violated their donors' First Amendment rights by deterring them from making contributions. 

Supreme Court prefers Republican voters

In the Brnovich case, the Democratic National Committee brought suit against new voting restrictions in Arizona under s.2 of the Voting Rights Act 1965, one of the few remnants left after the court gutted the VRA in the infamous Shelby County v Holder decision of 2013. 

Some Democrats feared that the DNC's stand against relatively minor voting restrictions would open the door to a broad-based supreme court decision, and so it transpired as a Republican supermajority greenlit Arizona's voting restrictions, essentially rewriting s.2 in the process.

Although s.2 of the VRA was not, as feared, annulled, the conservative majority seized upon the case to rule that disparate impacts on minority groups (what used to be called poll taxes) would "typically" not be enough to render voting rules illegal under the VRA. 

The majority then diabolically set out, among salient factors, "the degree to which a voting rule departs from what was standard practice when §2 was amended in 1982": carte blanche for banning postal voting, drop boxes, same day registration, extended hours and other voting innovations.

DoJ's first use of s.2 will be against Georgia's new state voting law; the charge is intentional discrimination.

*   *   *

Biden's AG Merrick Garland has adopted some Trump legal postures, such as defending "faith" as an acceptable ground for LGBTQ discrimination. The president, however, has ended an embarrassing Trump regulation that licensed gender discrimination in health care, based on one's claimed moral or religious views. 

In a pending appeal brought by Trump's DoJ, the Biden administration has argued for the reinstatement of the death penalty in the Boston Marathon Bombing case, even though the president personally opposes capital punishment. 

The attorney general has, however, paused Trump's deadly campaign of federal executions, and Biden is being urged to commute all outstanding sentences and, presumably, abandon the Boston bomber appeal. 

 

E. Jean Carroll is suing Trump over the former president's denial that he raped her ... Trump claims immunity

The Justice Department is also defending pending lawsuits against Trump, e.g. Jean Carroll's defamation action. Is there some tactical justification? As a Nation writer noted, "slandering alleged rape victims is not one of the official duties of the president". 

Some doubt moderate AG Merrick Garland's commitment to prosecuting "Trump's mob", i.e. the Capitol insurrectionists, but he has made a start on other Trump malefactions by e.g. disclosing compromising documents of the old regime that were found within the Justice Department. Thus, Garland released the outrageous draft brief that Trump wanted the DoJ to file in the supreme court, seeking to overthrow the election results. 

More here and here on Biden's attorney general.

*   *   *

The long-expected criminal indictments of the Trump Organisation for tax fraud have finally been filed. So far, Trump hasn't been indicted, but one US newspaper (the Boston Globe), is calling for the criminal prosecution of the former president himself. At least his reputation as an egregious tax cheat has bolstered bipartisan support for more vigorous enforcement of federal tax laws. 

There's an updated litigation tracker for Trump. As for other members of the gang, new evidence of old crimes by his cabinet cronies is still emerging.

*   *   *

Rumsfeld: The Butcher of Baghdad

As Le Monde politely reported, "Donald Rumsfeld, ancien secrétaire à la défense américain et architecte des guerres d'Irak et d'Afghanistan, est mort". 

Or, as less respectful American opinion put it, "War Criminal Found Dead at 88"; "He Played a Leading Role in Mass Murder"; "Rumsfeld represented the very worst of American arrogance and violence toward the rest of the world"; "a tragedy that Rumsfeld died before he could be put on trial for crimes against humanity"; and "worst secretary of defence in American history". 

The Machiavellian Rumsfeld escaped the hangman's noose; under Nuremberg principles, he'd have gone to prison if not the gallows. Instead, the disgraced former secretary of defence outlasted the Abu Ghraib scandal, the ACLU's Ali v Rumsfeld, multiple European criminal proceedings, and dozens of cases involving Pentagon actions in Afghanistan, Iraq and Guantánamo.

He escaped thanks to the protection and stonewalling of successive US governments, including the repeated bad-faith invocation of the "state secrets" privilege. 

It's a sad chapter in American legal history.

From Roger Fitch and our friends down under at Justinian

 

Fitch's Washington

ROGER FITCH ESQ • TUESDAY, JUNE 1, 2021

Trump's defeat sees the Republican gerrymander in full swing ... Moving the electoral goalposts ... Filibuster won't be busted ... Lies of the past paved the way for the Big Lie of today ... Military trials and the flouting of law ... The taint of torture ... The failure of Guantánamo ... Roger Fitch files from Washington 

"[The Republican Party is] basically the Titanic….in the middle of this slow sink. We have a band playing on the deck, telling everybody it's fine, and meanwhile …Donald Trump is running around trying to find women's clothing to get on the first lifeboat." - Adam Kinzinger (R) 

"... Trumpism does not merely extol incompetence; it also elevates racist, misogynistic, and all-purpose brutality for its own sake. It's fascism but the trains still don't run on time." - Michael Dorf

"The country is finished. It's all over. But you know, with a new republic like this, if you missed being here at the beginning, the next best thing is to be here at the end." - Gore Vidal

Like the April aftermath of the Civil War, there are fires burning here and there throughout the country; regional pillaging and marauding (e.g, Arizona) continue, as the central government attempts to contain and put out the fires of rebellion. As in that war, jayhawks and banditti rove the countryside, looking for trouble, or find it back home.  

Republicans have lost both presidency and senate. They lost the house, too, receiving less than half the popular vote, but that's usual even when they gain a majority of the seats.

This year, however, 147 house Republicans supported or tolerated an anti-government riot bent on overthrowing the results of the election: two-thirds of the caucus.

Though less seditious, Republican senators have joined to defeat an investigation into the insurrection: the cult leader opposed it. Sometimes, the Trump rump even seems prepared to destroy America's (imperfect) democracy in order to save it, and some fear America could go full-blown authoritarian. More here. 

The lies of the past, never effectively countered by Democrats, have paved the way for 2020's Big Lie. Will Democrats finally confront Republicans when they present an existential threat to two-party democracy? It doesn't look good, based on past experience.

Indeed, the 30-odd states with Republican legislatures, new census figures in hand, will soon concoct barbarously-gerrymandered electoral districts in which they get to select their very own voters. The US supreme court has refused to intervene, and the only hope lies in state constitutions, which sometimes offer protections the federal constitution lacks, e.g, the right to vote.

Arizona, a state the Republicans lost, is the new battleground in the GOP's last-stand electoral terrorism, as state parties strive to move the electoral goal-posts. The Party won't risk open voting, even in states they won with existing cheating, e.g, Florida, Texas (developments here), and other states. Soon, states under Republican control may even refuse to certify Democrat victories. 

Developments in state legislation for good and ill are here.

The only federal agency charged with national election oversight, the FEC, will remain Trump-complicit until Mr Biden gets his new commissioners confirmed; meanwhile, house Democrats have comprehensive legislation to deal with voter suppression, the For the People Act and the John Lewis Voting Rights Act. 

In the evenly-divided senate, both Bills face the filibuster rule that requires 60 assents in the 100-member senate before legislation can be brought to vote. Although the Democrats now have a senate majority (with the vice-president's vote) sufficient to abolish the filibuster, two Democrat senators support the filibuster rule, Arizona's Kyrsten Sinema (a former member of the house coalition of backsliding Democrats known as Blue Dogs) and West Virginia's Joe Manchin, now being called America's de facto prime minister. 

Senator Sinema: defender of the filibuster

*   *   *

Donald Trump elevated and glorified the contempt of law throughout American life. Perhaps, as the influence of his political holdovers recedes and new hires arrive, the Justice Department will turn its attention to some of the country's now-entrenched contempts of law: e.g, the offences of white collar criminals, and those of state authorities, the Arizona senate with its clumsy and transparently lawless "audit" of last November's election ballots.      

Impunity for illegality is partly a consequence of the failure by Obama and his attorney general to investigate and prosecute crimes that occurred during the George Bush administration. Democrats have a poor record of standing up to Republicans, and when gaining office, they rarely prosecute their past offences.

*   *   *

Aside from Iraq, George Bush's most transgressive, flagrant flouting of law was establishing a scheme of indefinite detention and military trials at Guantánamo (history here); there the well-documented contempt for international and US domestic law has persisted for years, with a scaffold of purported legality cobbled from extrajudicial acts, political inaction and appellate court acquiescence. 

It's been mostly unlawful from the outset: the secret confinement and torture of invented "illegal enemy combatants" (many of them lawful belligerents); the treatment of men as "war prisoners" who were apprehended (rarely by Americans) for suspected civilian terrorism.

Compounding all that, the arbitrary denial of prisoner of war status hearings, in an "international" conflict that should have attracted full Geneva Convention protections. 

Even the protections of Common Article Three, applicable to "non-international" conflicts, were denied, and Pentagon officials who attempted to provide Geneva protections were sacked (Rick Baccus), bullied (Stuart Couch) and even jailed (Matthew Diaz). 

Lt Comdr Diaz: jailed for sending Guantánamo names to the Centre for Constitutional Rights

Internationally non-compliant military trials were set up, trials that, as law profs David Glazier and David Frakt argued, could themselves be classified as war crimes, and it was all done to avoid legal civilian trials, now rendered impossible because they are tainted by torture and cruelty in violation of the Convention Against Torture. 

Most "convictions" for non-crimes have been overturned on appeal, and perhaps only one charge has been validly pursued, the current one against Abd al-Hadi al-Iraq for killing civilians in a war zone, during a war.

Throughout, the US has denied the men the most basic protection of the US constitution and Anglo-American common law: the unfettered habeas corpus that would have resulted in the release of many of them years ago.

The prisoners' entitlement to full habeas and due process is still being contested by the government, in the Al-Hela case pending before an en banc DC Court of Appeals, a case destined for the supreme court. 

Also pending is the Abu Zubaydah appeal for a civil subpoena, where the state secrets doctrine is being shamefully employed to protect CIA torturers whose identity is a matter of public record. More here. 

Court observers Karen Greenberg and Linda Greenhouse comment on the current state of litigation. 

The Biden administration is meanwhile resolving another Bush-Obama miscarriage of justice, that of Majid Khan, by cutting a deal that will avoid discussion, at his sentencing, of CIA torture. 

Three other prisoners are to be released, including the oldest, Saifullah Paracha, another injustice righted. Still held are people like Mohammed Al-Qahtani: the Pentagon's own Convening Authority declined to refer him for trial, conceding he'd been tortured.