From Roger Fitch and our friends down under...once again.

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Roger Fitch Esq • October 10, 2007

Our Man in Washington

October 1 marked the beginning of the new Supreme Court term.

The National Law Journal has a report on important cases for the new term, including the Guantanamo detainee case, Boumediene-Al Odah, which will test the suspension of habeas contained in the Military Commissions Act 2006.

The military commission case, Hamdan, would have made a natural companion case to the detainee case, as both require the court to construe the MCA. It was refused certiorari, however, on the basis that Hamdan’s appeal had not yet been decided by the DC Circuit.

In a Catch 22 for Mr Hamdan, the Court of Appeals has deferred consideration of his case until the Supreme Court decides Boumediene.

According to a not entirely disinterested analysis, the new conservative bloc of the Supreme Court is ready to “implement a bold, longstanding plan for radically remaking the court’s jurisprudence”.

One of the major cases – a late addition to the court’s docket – concerns capital punishment, e.g. the constitutional validity of the method of lethal injection.

This issue – whether the protocol for administration of drugs in fact paralyses the person executed while allowing excruciating pain – has caused many states to suspend such executions. It’s no trivial question, as Texas and many other states ban the use of one of the challenged medications in putting down animals.

Texas, the leading capital punisher, refused at first to suspend executions, but finally relented at the beginning of October.

Unfortunately, it was too late to save one man. A fatal crash of computers is said to have cost the life of a Texan inmate, who failed to meet an appeal deadline days before Texas acted to suspend executions.

* * *

In the meantime, the Bush Administration has had two big losses in US District Courts.

In one case, a federal judge ruled that the US National Archives could not refuse FoI requests relying on a Presidential Records Act order of George W. Bush.

The order famously claimed the right to prevent disclosure of presidential records for new and spurious reasons and placed consent for release in the hands of the presidents or their descendants. One of the plaintiffs, the National Security Archive, has more on this.

In the other case, West Coast lawyer Brandon Mayfield, who had already obtained $2 million and an apology from the Bush Administration for illegal detention (he was falsely accused of participating in the Madrid train bombing on the basis of a botched fingerprint match), won the remainder of his action in a decision striking down part of the seriously misnamed USA Patriot Act. The New York Times has more to say about this.

* * *

The disasters of the US mercenary firm (sorry, security contractor) Blackwater, which “protects” US officials in Iraq, are back before a Congressional committee.

The initial report of the House Committee makes unedifying reading, even without the details of a September 16 shootout in which as many as 28 innocent civilians were killed by Blackwater – an apparently unprovoked incident in which no one else fired a shot.

US contractors in Iraq can claim exemption from Iraqi law on the basis of the infamous “Order 17” made by the proconsul Paul Bremer just before he departed Iraq.

Blackwater claims to be exempt even from US oversight in Iraq because it contracts with the State Department rather than the Defence Department. The US legislation, such as it is, pertains to military support contractors.

In the unfolding farce, the State Department first interfered to protect the mercenaries from investigation.

The State Department’s Inspector General was accused of intimidating potential House Oversight Committee witnesses – one reason for proposed new legislation that would strip the President of the power to sack truly independent Inspector Generals.

Then, when the State Department reluctantly provided a “report” on the latest Blackwater “incident”, it turned out that the report had been outsourced to a Blackwater official.

Finally, the swashbuckling Erik Prince, Blackwater’s deeply rich, fundamentalist and Republican owner, testified before the House Committee. His testimony itself was contemptuous of Congress, as Sidney Blumenthal reports in Salon.

As the Times’ Maureen Dowd commented: “Once there was the military-industrial complex. Now we have the mercenary-evangelical complex.”

In any event, there is now going to be a proper FBI investigation of the Blackwater “incident”, although the FBI understandably declined the State Department’s offer to have its agents protected by Blackwater.

The State Department has agreed to begin oversight of Blackwater – after $1 billion in US contracts, and there is to be new legislation (now passed by the House) making all contractors in Iraq subject to US criminal law.

Perhaps a better idea is that of legal ethicist David Luban, who thought that military commissions might be profitably used against rogue military contractors.

Law prof Laura Dickinson (pic) also had some interesting thoughts on the same subject.

* * *

Speaking of military commissions, the Government’s appeal of the dismissal of the Omar Khadr commission has been decided.

The Court of Military Commission Review has partly saved the Government from the effect of its incompetence, although it was hardly the mighty victory for the Bush regime that it was portrayed to be in the press.

Scotus blog has more on the Khadr case.

Sadly, when the MCs of Khadr and Hamdan (also affected by the CMCR decision) resume, colourful Chief Prosecutor “Moe” Davis will be gone.

After an apparent losing struggle with Brig Gen Thomas Hartmann, whom he accused of interference, Colonel Davis has asked to be transferred.

Davis wasn’t the only spoke in the wheel for the Pentagon. Another whistleblowing member of the dodgy Combat Status Review Tribunals has come forward, echoing the earlier complaints of Col. Stephen Abraham that had much to do with the Supreme Court changing course and granting certiorari in Boumediene.

Like Col. Abraham, the officer, as yet unidentified, had participated in a CSRT where a “redo” was ordered by the Pentagon after the panel failed to find that the detainee was an “enemy combatant”. The officer’s statement is part of a declaration filed by the lawyers for Adel Hamad, a hospital administrator seized in Pakistan and sent to Guantanamo.

Unlike Col. Abraham, the latest Pentagon defector participated in not one but 49 CSRTs. Hamad’s CSRT was but one of six the officer participated in where repeat panels were demanded by the Pentagon.

Meanwhile, the Department of Defence proudly announced that last year’s new arrivals at Gitmo, the “high value” detainees, were to be offered the right to request lawyers, to be provided by the American Bar Association.

The ABA immediately contradicted the DoD, declining to have anything to do with a Guantanamo process that had no habeas corpus.

The ABA said its offer had been made two years ago in the wake of the Rasul case, after the right to habeas had been confirmed by the Supreme Court and before Congress took it away.

Apparently, the DoD kept the ABA’s offer secret for two years and then tried to extend it selectively to the “high value” detainees – not yet detained in Gitmo in 2005 – and only for their representation before the Detainee Treatment Act appeals in the DC Court of Appeals.

* * *

A persistent problem in the Guantanamo (and now Bagram, Afghanistan) detainee cases has been the Government’s zeal to send released prisoners to countries where they may be tortured or arbitrarily detained, always without telling their lawyers or the courts beforehand.

Many such attempts by the Administration were stayed in the various habeas cases, but since February 2007 when the DC Court of Appeals (in its 2-1 Boumediene decision) interpreted the Military Commission Act to block all habeas case motions, the danger to detainees has become especially grave.

Now, the Centre for Constitutional Rights in New York has filed a petition for certiorari in the Supreme Court on behalf of a Libyan held in Guantanamo, whose refoulement/forced repatriation they seek to block.

CCR earlier condemned a recent decision of Judge Richard Urbina, who dismissed 16 cases involving 40 detainees despite the pending appeal of the Boumediene-Al Odah cases in the Supreme Court this term.

A day after Urbina’s ruling, the DoJ informed all the affected lawyers that they were barred access to their clients, but after the lawyers appealed Urbina reinstated the cases.

Other DC judges had taken a different course. In July, Judge John Bates refused to dismiss the habeas case of a Yemeni, Al-Maqaleh, who alleged he was unlawfully detained by the US at its Bagram Air Base in Afghanistan. Judge Bates did so notwithstanding the MCA purporting to close down all habeas actions for “enemy combatant” aliens held by the US in Guantanamo and overseas.

In another Bagram case, DC Judge Gladys Kessler required notice to the court of any proposed transfer, acting on the basis of the Boumediene appeal. She cited evidence that the detainee Robullah “would face a serious threat of torture” in the Afghanistan-operated wing of the US prison in Kabul, Pul-i-Charki, where the US seems determined to transfer him.

Kessler and Bates have joined Judge Ellen Huvelle (pic) of the DC bench in declining to dismiss cases for the Government pending the Boumediene appeal.

If memory serves, even Richard Leon, the judge in the Boumediene case and a slavish supporter of Bush Law, has declined to dismiss cases pending the appeal.

Unfortunately for some petitioners, many cases, including those of Reggie Walton, were dismissed before the Supreme Court granted certiorari in the Boumediene case.

* * *

In a final irony, the last surviving 13th century copy of the Magna Carta in private hands has come on the market.

There are only two copies outside England – in Australia and the US. This copy is the one on display in the National Archives in Washington, where it has been on a long-term loan from its owner, Texan billionaire Ross Perot.

And why not sell it? It doesn’t look as though there will be much call for it in future – in either Texas or Washington.