Roger Fitch Esq • July 5, 2007
Our Man in Washington (From Justinian)
It was the Supreme Court’s last orders list, on the last day of the 2006 term. After giving big business everything it wanted this term, Justice Anthony Kennedy had decided to come on board the Guantanamo detention cases. The brief order gave the detainees even more than they sought.
It takes five votes to grant a motion for a rehearing, so when Kennedy joined the four “liberals” on the Supreme Court to grant certiorari in Boumediene/Al Odah, it was an omen of a coming victory of some sort for the Guantanamo detainees. They’d previously had their hopes dashed by the April order of the court refusing certiorari.
Lawyers for the Guantanamo detainees had just filed a new motion in the District Court in Washington, seeking to forestall dismissal of the pending habeas petitions. Their notice summarises the current detainee cases in the federal courts. Now, with the grant of certiorari, all the pending cases should be safe until the October term, when the Supreme Court will take up the Boumediene/Al Odah appeal.
In April, Justices Kennedy and John Stevens left the door open in their opinion for a further cert petition if circumstances changed. Now it seems change has occurred, and many are suggesting it was the Abraham affidavit attached to the petition for rehearing in the Supreme Court.
An insider in the Combatant Status Review Tribunal process, Lt Col Stephen Abraham, filed a statement with the Supreme Court attesting to the institutional irregularity and inherent unfairness of the CSRTs conducted in Guantanamo.
The Abraham affidavit is included in the latest Supreme Court filing in the Al Odah appeal.
There are many things wrong with CSRTs, as we always knew. They were only set up to evade the 2004 Rasul decision, relying on a dictum of Justice Sandra Day O’Connor in the companion Hamdi case that some other tribunal might be able to provide the rights the Supreme Court was directing the Government to provide to detainees in DC District Court in the form of habeas. Scott Horton has described the whole “enemy combatant fraud” perfectly in Harper’s Magazine.
District Court Judge James Robertson largely ignored the CSRTs, while Joyce Hens Green of the District Court and DC Appeals Judge Judith Rogers openly scorned them. The Congress never explicitly authorised CSRTs, and the real regulations they displaced (eg: those implementing the Geneva Conventions’ Article 5 requirement of PoW hearings) are still on the Pentagon books, awaiting enforcement.
The CSRTs have been further discredited in the recent decisions of military commission judges in Guantanamo, especially the careful opinion of Judge Colonel Peter Brownback in denying reconsideration of the Khadr case.
Another blow to the new Military Commissions Act, and thus to the CSRTs, is the 4th Circuit’s decision in the al-Marri case. It seems that the president of the United States, can’t, after all, unilaterally declare anyone in the US without a US passport to be an “enemy combatant”, and throw him in a US Navy brig. And a CSRT isn’t going to help. A good rundown of the al-Marri case may be found at the National Security Advisors blog.
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An alternative ground for the Supreme Court’s decision to grant certiorari may have been the mala fides of the government, specifically the unseemly rush to forcefully deport Gitmo detainees to possible torture. Human rights organisations have been crying foul at the US government’s refoulement (the internationally forbidden practice of rendering to torture) of Gitmo sufferers to such bastions of human rights as Libya and Tunisia.
Some extralegal deportations have already occurred, without any advance notice to the lawyers, at times in violation of court orders, and always without the consent of the deportee. Where possible, they are carried out against detainees who have never seen lawyers.
Along with Tunisians, Libyans seem the preferred targets of the government’s zeal to send released detainees to possible torture or death.
Those of us who thought the sadistic mistreatment of detainees was likely rooted in George Bush’s west Texan childhood – never afterwards effaced by any amount of Andover, Harvard or Yale – have now learned that the real author of the torture policy may be the vice president.
The Washington Post has a new series on Cheney that sheds considerable light. According to the series, Cheney’s legal counsel David Addington actually wrote the offending “torture memo” signed by John Yoo:
“The vice president’s lawyer advocated what was considered the memo’s most radical claim: that the president may authorise any interrogation method, even if it crosses the line of torture. US and treaty laws forbidding any person to ‘commit torture’, that passage stated, ‘do not apply’ to the commander-in-chief, because Congress “may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”
Also interesting was this revelation of where Cheney draws the line:
“That same day, Aug. 1, 2002, Yoo signed off on a second secret opinion, the contents of which have never been made public. According to a source with direct knowledge, that opinion approved as lawful a long list of specific interrogation techniques proposed by the CIA including waterboarding, a form of near-drowning that the US government classified as a war crime in 1947. The opinion drew the line against one request: threatening to bury a prisoner alive.
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Just lately, several of the Bush regime’s more conspicuous miscarriages of justice have been back in the news. As noted, the al-Marri experiment has been defeated in the DC Court of Appeals. In Miami, the Padilla case is going badly, with the FBI’s own witness exculpating Padilla. Even the case of John Walker Lindh is being reappraised.
And yet another stateside “enemy combatant” is back in court. The American Abu Ali, who was persuaded by Saudi police to confess a desire to kill George Bush, has been serving a 30-year sentence. His appeal is being considered by the 4th Court of Appeals, where it was argued by David Hicks’ civilian lawyer, Josh Dratel.
Ominously for the government, the Munaf case seems headed for the Supreme Court.
Even the help of DC Appeals Court Judge David Sentelle couldn’t save Lewis “Scooter” Libby, the vice president’s chief of staff and all-purpose flunkey, from fronting jail for perjury and other offences.
As mentioned in my article of June 4, it would not have been the first time Judge Sentelle had a shot at ameliorating Republican convictions; in fact he is an old hand at this sort of thing. But when he declined to keep Scooter out of jail pending his appeals, George Bush did what Sentelle couldn’t – he commuted Libby’s sentence.
Libby was an official in the office of the vice president, but his old boss has rather surprisingly decided that OVP is not part of the executive branch, and therefore does not have to comply with executive orders, even George Bush’s. The Vice is now claiming that he is not even part of the US government! That absurd claim brought many comments including this, from Dan Froomkin of The Washington Post.
Finally, Antonin Scalia has shown his (bloody) colours on the torture issue. At one of their Bar Association functions, Canadian lawyers were astonished to hear Scalia, the US Supreme Court justice with perhaps the greatest intellectual pretensions, commending the efficacy of torture, and doing it based on (shudder) a popular TV program, the torture-every-week-for-patriotic-purposes 24. Human Rights First was shocked.
Maybe it’s time Cheney and Scalia went duck-hunting again. No torture would be necessary. Anything could happen, and the world would be a safer place.