Saturday, October 13, 2018

From our Friends down under at Justinian.....

An illegitimate SCOTUS

The US Supreme Court has been bought ... Long campaign to stack the court with judges favourable to corporate interests ... Huge lobbying and spending to secure Kavanaugh's confirmation ... Guns, God and presidential power ... The mid-terms and intensified voter purging ... From Our Man in Washington, Roger Fitch
"With Anthony Kennedy's retirement, there is no discriminatory voting restriction the justices will be unable to sanction, no immigration law born in animus they will be unable to approve, no expansion of corporate power they will be unable to accept, no grant of presidential immunity they will be unable to uphold, no financial or environmental regulation they will be unable to strike down, no religious objection to an antidiscrimination law they will be unable to recognize, no worker protection they will be unable to repeal, no limitation on abortion they will be unable to allow, and no abuse of power by law enforcement they will feel compelled to restrict" - The Atlantic.
The inevitable has happened. The US senate, unmoved by sexual assault allegations, the nominee's surly demeanour, and an open letter of opposition signed by over 2400 law professors, conferred a lifetime supreme court appointment on DC Circuit Judge Brett Kavanaugh.
A "movement conservative", Judge Kavanaugh is a Republican stalwart and former player in distasteful and highly partisan political operations. The party clearly believes he can be relied upon to bat away legal precedents standing in the way of party policy or the Republicans' hold on office (e.g, the coming troubles of Mr Trump), and his first case may offer him a chance to, uh, make a difference
At the supplementary senate hearings held following new accusations of youthful sexual assaults, Kavanaugh showed a palpable sense of self-entitlement, revealing an injudicious temperament, yet another cause for concern, including to the American Bar Association, who wanted to reopen its review of his qualifications.  
A snarling Kavanaugh lashed out at "the Clintons" and "left-wingers", ominously adding, "what's goes around, comes around". As it turns out, Kavanaugh's bad-boy drinking, woman troubles, and (perhaps calculated) senate counterattack have all been red meat for Trump's white male base in the lead-up to the November 6 elections.
Earlier hearings followed extensive legal blogging on Kavanaugh's judicial record and the likely consequences of his appointment; the senate focussed on his legal philosophy and attachment to precedent.
Conservative donors outspent liberals to influence the confirmation vote; corporate front groups keen to seat Kavanaugh spent $15 million. This was unsurprising; the nominee's double standard for corporations has already been the subject of a report by Public Citizen - more here.
By a happy coincidence, Judge Kavanaugh has a very broad view of campaign contributions, including those employed to place judges like him on state and federal courts.  
The supreme court was already lurching right, particularly after Trump's addition of the radical Neil Gorsuch, and Justice Kennedy's occasional departures from Republican party script usually involved social issues such as criminal justice or gay rights. Even if Kavanaugh had not succeeded, an equally odious justice would have been confirmed by the immoderate Republican senate.   
Although there is some suggestion that CJ John Roberts will provide a "swing vote", it seems more likely that an extreme far-right faction (comprising the CJ, Clarence Thomas, Joseph Alito, Gorsuch and Kavanaugh) will be in control for the first time since the early days of Franklin Roosevelt. All five of them lack legitimacy, in the view of the eminent law dean Erwin Chemerinsky. 
The Atlantic's Adam Serwer fears a return to the days of the 19th century "Redemption" supreme court; others worry that the court could be headed for the lawless laissez faire of the Lochner era, a business paradise where most social and economic regulation was constitutionally circumscribed. 
Some Democrats have threatened to impeach Justice Kavanaugh, and certainly a newly Democrat house of reps could investigate his misstatements to congress (and a lot more: Republicans are circulating a spreadsheet of potential unwelcome investigations if the Democrats "flip" the house in November). 
In the long run, there remains the option of "court-packing": FDR's proposed Judicial Procedures Reform Act of 1937, though never adopted, precipitated a salutary left turn on the court, enabling him to have his legislation upheld.
It's a big choice, but there's nothing to prevent the number of justices being increased under a Democrat administration; nine justices are really too few for the proper supervision of a vast judicial system with thirteen circuit courts of appeal.  
Law prof Michael Dorf thinks that two additional judges would be about right, and the best revenge for the Republicans' 2016 theft of Antonin Scalia's seat; there may also be a need for new court of appeals positions, to offset the Republicans' ongoing judicial sabotage in the lower courts. 
The supreme court's new term has meanwhile begun. Marjorie Cohn looks at the pending big cases that explain the Republicans' rush to get Brett Kavanaugh on the court.  On his first day on the bench, Justice Kavanaugh heard oral arguments in two of the cases making this term a "criminal law professor's dream".


Friday, October 5, 2018

And for those of us who tried....

Dedicated to Kavanaugh and the senators who are supporting him....

It looks like a done deal...

Kavanaugh will sit on our highest court.

A man who lied to the senate and sexually assaulted a young woman while in high school... and who knows what else he has done because we did not get a full and fair investigation.

Shame on all of those senators who vote yes.

Sunday, September 30, 2018

The innocence of Abu Zubaydah

I have written alot about this man over the years. His saga overlaps with my remaining client's saga and so I have paid special attention to his plight. I believe that he is wrongly being held -- I can't say wrongly convicted because of course he has not been charged or convicted. Like my client he languishes at Guantanamo.

His attorney has written about his innocence. Read his story here.

Sunday, September 23, 2018


My friend, the talking dog, celebrated the 17th anniversary of his blog last week. I first met the dog when he was doing interviews of lawyers who represented men at Guantanamo. You can read his interview of me here. If you look on the left hand side of his blog you will see the complete roster of all the individuals that the dog has interviewed-- not just the gitmo lawyers but others involved in Gitmo related happenings.

My interview was in 2007. Since that time the dog and I have been friends. The dog has helped with my various supreme court petitions, appellate briefs and lots of other things inbetween. 

As the dog points out in his anniversary post...these have not been fun times... but hard times are easier with friends. And hope does die last.
Read the dog's anniversary post here .

Wednesday, September 12, 2018

Lest we forget...9-12-1977

Tuesday, September 11, 2018


As I do every 9-11 I turn this post over to my friend the talking dog who was actually in New York City on that day.
Because of technical problems you will need to click on the link below.
Perhaps tomorrow this will be fixed.
Perhaps not.

Friday, September 7, 2018

Kavanaugh (Continued...)

My concerns about Kavanaugh go beyond what I have read about him -- I have appeared before him. It was not a pleasant experience.

After losing my client's habeas case -- following a "hearing" that was not only a farce but also a shameful display of shenanigans by the attorneys handling the case from the department of "justice." As I have mentioned more than once, having been an attorney for 35 years I have gone up against the best lawyers and the worst. The attorneys that I was up against in Razak Ali's case were amongst the worst I ever dealt with.... but I digress.

I filed the appeal and had some battles early on with the panel assigned to Mr. Ali's case which were disturbing. One of those battles involved  exculpatory documents (those are documents that are helpful to my client) that were withheld by the "justice" department until after the hearing was over. These were not just exculpatory.. they went to the very heart of my client's right to have habeas granted. The government claimed, disingenuously I might add, that they forgot to provide the document -- that the document was classified at the highest secret classification level -- and they therefore did not think that I should be able to see the document anyway... The government attorneys finally remembered this important document right about the time the judge was ready to enter his order (denying habeas). Unbeknownst to me the government attorneys and the judge met and talked about this issue several times after one of the attorneys privately told the judge about the mishap.  When the judge and the government figured out how they would proceed I was informed of all of this. (Kafka would have been proud.)

The judge announced that the government would still not agree to let me see the document and so the judge decided he would not look at the document either.The document was in regards to the government's main "witness" against my client (a fellow detaineed who had been brutally tortured by my government and in statements made by him under torture identified my client as having been in Afghanistan-- a place my client had never been until taken there by the military -- I guess I should also mention that the photo used by the military to get this tortured individual to identify my client was not actually a photo of my client...sigh.)  The judge, who didn't care that the government could come up with an accurate photo of my client, said he would disregard any evidence that came from that particular"witness."

The problem was the whole 5 day "hearing" was about the credibility of this one witness. The judge never did get a handle on that fact and I had to file 3 or 4 post hearing motions to get evidence that came from this individual out of the judge's opinion-- leaving my client's habeas denial down to the only "evidence" against my client -- that he was in a guesthouse where another guest was staying who was wanted by my government.

My appellate panel announced that they wanted to review that document and I fought like hell to keep them from reviewing a document on appeal that neither the judge below nor I had ever seen. They finally relented. I am guessing it was at that time that I learned that I had Kavanaugh on my panel. The only thing that I knew about Kavanaugh at the time was that he probably had lied to the Senate at his confirmation hearing about his role in Guantanao issues while at the white house. So I did what any rightous and hard working attorney would do -- I moved to recuse him. Less than 24 hours later my motion was denied without comment.

At the oral argument I watched this smug judge sit there and glare at me knowing that nothing I said about this case would matter. He is and was a rubberstamp to the Bush administration and that is what he will be to the republican agenda if he makes it to our highest court. I wrote to the judiciary committee this week and sent copies of everything to that committee. Since Mr. Ali's case is again working its way up to the Supreme Court I feel pretty confident that even this judge would have to recuse himself from hearing his case should we be so unfortunate as to have him sitting on that Court but regardless -- he should not sit on that court.

There is alot more I could say about this but that will have to wait for another day.

My good friend the talking dog has posted my letter to the judiciary committe (and the motion to recuse) on his website and you  can read it here.

Thursday, September 6, 2018

The Nightmare Nominee to the Supreme Court (UPDATED)

By a nightmare president:

I dont know if we will get to the bottom of this in time to stop Kavanaugh from winning confirmation to the supreme court but it is starting to look like he was more involved in torture than we prevously understood. This from emptywheel.

More emails from Kavanaugh have been released by Senator Booker. The senator is refusing to abide by the republican's designation of these email as "confidential." The emails show that the day after John Yoo wrote his torture memos Kavanaugh was pushing to have Yoo appointed to the 9th Circuit Court of appeals. Yoo however wanted to be made counsel to the CIA. Kavanaugh's fallback was to suggest Yoo be named counsel to the CIA for about a year and then moved to the 9th Circuit.

Read more about these released emails here.

Monday, September 3, 2018

musical interlude....

Because we need one about now.

Friday, August 31, 2018


So it seems that Trump is considering sending a few of the ISIS prisoners to Guantanamo. Sigh.
Read about it here.

Thursday, August 30, 2018

One of the many reasons to OPPOSE Kavanaugh

If you have not made calls or sent emails or letters to your senators opposing Kavanaugh's ascension  to the Supreme Court please do so NOW. And of course when it comes to Guantanamo he would be a disaster. Click here to read more.

h/o to Michigan Don.

Saturday, August 18, 2018

A stunning development

It is always a pleasant surprise when a judge hearing Guantanamo issues actually follows the rules of law:
Judge Bars Statements Made by Guantánamo Detainees During F.B.I. Interrogations

h/o to David R.

From Roger Fitch and Our Freinds Down Below at Justinian

Controversy continues at Guantánamo, with the political firing of the commissions' Convening Authority; the sudden retirement of the judge in the Cole bombing case; fresh revelations in declassified prosecution documents; and new disclosures of top-secret CIA cables from Thailand detailing al-Nashiri's torture at the time Gina Haspel (now CIA director) was in charge.  
The group habeas previously reported in Fitch, al-Bihani, has now been argued in Washington DC, with the Trump administration claiming it can hold the men (including this man) for "100 years", more here
It's not very different from the government's justification in 2003 before the 9th Circuit. There, in the Gherebi case, the Justice Department lawyers - led by Robert McCallam, afterwards ambassador to Australia - presented arguments the court characterised as follows:
"Under the government's theory, it is free to imprison Gherebi indefinitely along with hundreds of other citizens of foreign countries, friendly nations among them, and to do with Gherebi and those detainees as it will, when it pleases, without any compliance with any rule of law of any kind, without permitting him to consult counsel, and without acknowledging any judicial forum in which its actions may be challenged. Indeed, at oral argument, the government advised us that its position would be the same even if the claims were that it was engaging in acts of torture and that it was summarily executing the detainees."