FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER AT JUSTINIAN

Roger Fitch Esq • October 25, 2007
Our Man in Washington
The Senate Judiciary Committee is holding confirmation hearings for retired federal judge Michael Mukasey, George Bush’s nominee for Attorney General.
Although he is likely to be confirmed by Democrats – they fear something worse if he’s rejected – Mukasey’s testimony has hardly shown him to be a civil liberties-loving independent.
Nor is he a sceptic where claims of presidential infallibility and supremacy are concerned.
There are also troubling incidents in Mukasey’s judicial career, as noted in my last post.
After the 9/11 attacks, Mukasey – the senior district judge in Manhattan – allowed the government to apply the hitherto limited grand jury “material witness” warrant to an entire class of resident aliens never before subjected to it.
This led to the notorious security sweeps of legal aliens in 2001, the worst since the Red Scare of 1917-1920.
Former Congresswoman and Nixon-nemesis Elizabeth Holtzmann has pointed out that this drama has played out once before, in 1973.
That’s when Nixon’s ethically challenged Attorney General Richard Kleindienst resigned under a cloud and was replaced by Elliot Richardson.
As a condition of his confirmation, Richardson agreed to appoint a special prosecutor to look into the misdeeds of the Nixon administration. The rest is history.
* * *
In my last post I lamented the decline in use of the 13th century Magna Carta, but there is one venerable statute dating from the year of the French Revolution, still in use in the American republic.
It’s 28 USC 1350, better know as the Alien Tort Statute or the Alien Tort Claims Act. ATCA has been on the books since the Judiciary Act of 1789.
It’s been put to use just this month, following the September 16 shoot-up by the Blackwater mercenaries in Baghdad, where many civilians were killed.
The petition was filed by the Center for Constitutional Rights in DC District Court on behalf of victims of the Nisoor Square “incident”, and it doesn’t mince words.
The Los Angeles Times has more on this.
In my last post I reported suggestions that rogue mercenaries, such as Blackwater, could be given “enemy combatant” status. Now, Bush officials are worried that contractors could indeed be treated as unlawful combatants under international agreements.
Still, Blackwater is not the most despised government contractor in Iraq. That honour belongs to the former Halliburton subsidiary KBR. The November issue of Vanity Fair reports in detail on KBR’s looting and pillaging.
* * *
Back in Guantanamo, the Pentagon is mooting new “status hearings” for all the remaining hundreds of internees – this time for the express purpose of adding “illegal” to their “enemy combatant” labels and enabling trials of the lucky few for “war crimes”.
Yet, will any administrative process of the Pentagon convert detainees into (a) combatants, and (b) illegal ones?
Under US and international law (i.e. Geneva Conventions) such a process requires an independent judicial determination before any “war crimes” trial, as the lawyers for Omar Khadr have rightly pointed out.
An amicus brief filed in Khadr’s appeal to the Court of Military Commission Review explains it very well.
Repeat Combat Status Review Tribunals would consume a lot of time, but the whole idea is to keep the detainees bailed-up and avoid a determination of their actual status until after a new president has been sworn-in.
Slate’s Dahlia Lithwick suggests the government is offering the DC Court of Appeals a “dog ate my homework” excuse for missing evidence from the first round of hearings.
* * *
In the invalid “presidential” military commissions, the Canadian Omar Khadr and the Australian David Hicks were bizarrely charged with “aiding the enemy”, even though neither owed a duty of allegiance to the US.
The Pentagon was on somewhat safer ground when charging Lt Col William Steele, a former Camp Cropper jail commandant in Iraq, with “aiding the enemy”.
Steele is a US citizen, as was the Gitmo padre Captain James Yee (pic), the only other US military officer charged with “aiding the enemy” since the advent of the “war on terror”.
Steele was the former commander of the detention facility that held Saddam Hussein after his capture. In Steele’s case (as in Yee’s, who was exonerated), the charges seemed shaky.
Providing a mobile phone to a detainee does not seem to be such an odious offence as would justify life in prison, but that was what was sought by a vengeful Pentagon.
At least charges of providing cigars to Saddam Hussein were dropped, and the Pentagon magnanimously reduced the requested penalty from death.
Even though the military prosecutor at Steele’s court-martial compared the act of lending a mobile phone to providing an AK-47, the judge acquitted Steele of aiding the enemy and sentenced him to a mere two years on other charges.
* * *
Col. Steele was accused of being “too sympathetic” to detainees. Similar accusations were made about Navy Commander Matthew Diaz (pic).
In May Diaz got jail time for passing a list of Gitmo detainees to the Center for Constitutional Rights. The New York Times has now published a long piece on this whistleblower, who is doing six-months in a US Navy brig.
The article on Diaz reminded us of the events of 2004.
In June the Supreme Court made clear, in the Rasul (Hicks) case, that Guantanamo detainees were entitled to habeas hearings in Washington district courts.
Yet the Bush administration, in an unprecedented flouting of a Supreme Court decision, stonewalled every effort to provide the hearings while Diaz was deputy legal adviser at Guantanamo.
The Pentagon refused to even disclose who was held in Guantanamo, and continued refusing until ordered to hand over the names by a federal court in 2006.
That non-disclosure made it difficult for lawyers to file suits or for families of the detainees to learn of their detention and seek lawyers to represent them.
It was against this background that the Gitmo lawyer Diaz decided to risk his career by anonymously providing to CCR (lead counsel for petitioners) the names and numbers of the detainees.
Fast forward to 2007 and things have hardly improved. However, an unlikely new whistleblower has come forward.
Now that he has left his job (see my post of October 10), former Guantanamo chief “war crimes” prosecutor Col. Moe Davis (pic), is singing about the interference in prosecutions by a highly politicised Pentagon.
According to news reports, the Pentagon is also fretting that the “alleged” torture and mistreatment which produced the “evidence” will queer the cases against “high value” detainees in Gitmo.
Bit late for that now, surely?
* * *
In a further moment of deja vu, military commissions are set to begin again. The first two cases (November 8 and 9) will be those of Omar Khadr and the long-suffering motor pool driver Salim Hamdan of Supreme Court fame.
Despite the best efforts of lawyers and unsung patriots such as Cmdr. Diaz, the opportunity of Omar Khadr to demonstrate that he is not an “unlawful combatant” (and therefore cannot be tried by a military commission) has been obstructed successfully by the government for over five years.
Scotusblog reports the latest twists.
Not surprisingly, Khadr’s pending military appeal to the DC Court of Appeals from the Court of Military Commission Review didn’t stop the military commission judge, Col. Peter Brownback, from scheduling a repeat military commission.
As Gabor Rona of Human Rights First has noted, the charges against Khadr are not even war crimes. While it may be a war crime to kill a civilian, in Khadr’s case the person killed was a combatant, i.e. an American soldier.
The same question is raised by the charges in a new military commission filed against Mohammad Jawad. Another underage combatant, he too allegedly lobbed a grenade, injuring military personnel and their interpreter.
The Los Angeles Times has more.
* * *
Have you ever wondered how the Supreme Court decides which cases to hear?
Would you believe that, except for Justice Stevens, the choice is made by wet-behind-the-ears law clerks? Howard Bashman tells how it works.
Perhaps this helps explain the Supreme Court’s failure to grant certiorari in one of the most momentous petitions to the court this term: the civil damages case brought by the German citizen Khaled El-Masri for his torture-abduction – sorry, “extraordinary rendition” – by CIA agents.
Aziz Huq of NYU Law School’s Brennan Center has more.
The case is hardly a secret: the sites of detention are known, the flight logs have been confirmed, Condoleeza Rice has apologised to the German Chancellor and a German prosecutor has brought charges against CIA agents.
Nevertheless, the case was dismissed in district court and the dismissal was upheld in the Bush-friendly 4th Circuit, due to “state secrets”.
The “State Secrets” Doctrine is a killer application, created by the Supreme Court in 1953 and apparently borrowed from English law.
Originally it was intended only to protect evidence. Under the Bush administration it has been used to dismiss entire lawsuits out of hand without any evidence ever being offered, purely on the unsupported claim of the government, whether in good faith or bad, that “national security” is threatened.
Scotusblog has more.
There is another case, however, that should present a second chance to consider the State Secrets doctrine.
You may recall the case of Maher Arar, a Canadian who was changing planes in New York in 2002 when he was grabbed by ICE (US Customs and Immigration), and sent to Syria for torture.
Mr Arar has now testified before the House Foreign Affairs Committee which is investigating his ordeal.
He gave evidence by video link, not because he’s afraid to visit the US, but because ICE still refuses him a visa.
The Democrats seemed unperturbed that the Bush administration obstructed their investigation by denying him a visa, and this after the Canadians had exonerated him, paid him $10 million in damages and apologised.
Arar will never get any damages, let alone apologies, from the Bush administration.
At least Mr Arar wasn’t sent to the rumoured Anglo-American prison on Diego Garcia Island, now being investigated by the British parliament for the CIA’s likely use there of (shudder) verschaerfte Vernehmung – enhanced interrogation.