From Roger Fitch and our Friends Down Under

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Roger Fitch Esq • February 8, 2008
Our Man in Washington
The Attorney General says the US can torture if it likes … The proposed American Freedom Agenda Act says the US can kidnap if it likes … Over at Guantanamo smart new portable court rooms have been installed … Pentagon bunglers mistakenly hand over “secret” evidence to the visiting press
The new Attorney General has finally given his views on the water cure. In testimony before the Senate, Michael Mukasey broadly implied that “waterboarding” is legal, and could be used again.
No senator thought to ask why, in that case, the US had tried and imprisoned Japanese soldiers and American GIs for using the same practice (see my post of September 22).
As Salon’s Glenn Greenwald sees it, Michael Mukasey showed himself before the Senate to be “ideologically, a clone of John Yoo and David Addington.”
Mukasey is also blocking an investigation into the crimes of his predecessor, Alberto Gonzales, according to the head of the Office of Special Counsel, Scott Bloch.
Meanwhile, Bush and his AG are pressing ahead with the nomination of the odious Stephen Bradbury as the Assistant Attorney General for Legal Counsel.
Bradbury (pic) “approved” waterboarding in a memorandum written in 2005 when he was acting head of the Office of Legal Counsel.
* * *
Although Mukasey says the CIA may “coerce” if it likes, the agency doesn’t really have the proper skills to do it, according to the Washington Independent.
Moreover, astute CIA officers can foresee a Department of Justice that isn’t run by Republican Party hacks or led by a loyal footsoldier in the neo-con revolution.
Perhaps that explains why CIA operatives are stocking up on professional liability insurance to protect against the legal costs associated with investigations and defending civil or criminal charges.
One policyholder is former CIA capo Jose Rodriguez, the designated scapegoat in the “torture tape” destruction scandal.
For extra insurance, the CIA has imposed new restrictions on its Inspector General.
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Last year I wrote about George Bush’s practice of issuing imperial edicts under his assumed royal prerogatives. I called them “Bushwahs” (see my post of September 4).
A variation of the Bushwah is the notorious “signing statement”. That’s where, rather than actually vetoing an Act of Congress, as the Constitution provides, our sovereign simply signs the Bill and then adds a message that he has no intention of enforcing designated parts of it.
As in the case of so much that Mr Bush does, this is not exactly legal and, in fact, legislation specifically enabling line-item vetoes was ruled unconstitutional by the Supreme Court during Bill Clinton’s term.
Bush’s “administrative” line-item vetoes are not unconstitutional – they are simply void – but they can be quite revealing of the Emperor’s pretended powers.
Take the new Defence Act. It contains provisions inserted by Congress that no funds can be spent to establish permanent military bases in Iraq, or to exercise control of Iraqi oil.
The Act also mandates a commission to investigate military contract fraud, provides new protections for whistle-blowers of such fraud, and requires the president to explain in writing when stonewalling Senate document subpoenas.
Mr Bush rejected them all, but only Charlie Savage of the Boston Globe picked up his signing statements.
The Washington Post’s Dan Froomkin has more.
One congressional response to Bush’s “statements” is a proposed American Freedom Agenda Act 2007.
These days, comically patriotic titles are de rigueur.
There are good things in the Bill. The Military Commissions Act is repealed, and habeas corpus restored.
There is a provision that:
“No civilian or military tribunal shall admit as evidence statements extracted from the defendant by torture or coercion [my emphasis].”
Presidential signing statements may be challenged in court.
Then, there is this:
“SEC. 7. KIDNAPPING, DETENTIONS, AND TORTURE ABROAD. No officer or agent of the United States shall kidnap, imprison, or torture any person abroad based solely on the President’s belief that the subject of the kidnapping, imprisonment, or torture is a criminal or enemy combatant; provided that kidnapping shall be permitted if undertaken with the intent of bringing the kidnapped person for prosecution or interrogation to gather intelligence before a tribunal that meets international standards of fairness and due process. A knowing violation of this section shall be punished as a felony punishable by a fine or imprisonment of up to two years.” (Emphases added.)
No one is safe.
* * *
There was an interesting new development for “enemy combatants” at the beginning of February, with the DC Court of Appeals issuing its en banc decision in the Bismullah case.
The full court maintained the wider scope of its evidentiary review (under the Detainee Treatment Act) of combat status determinations.
The Supreme Court had previously indicated that the Court of Appeal’s final decision would inform its own decision in the important pending Guantanamo detainee case, Boumediene-Al Odah.
The Circuit Court divided mostly on party lines, although Chief Judge Douglas Ginsburg (pic) sided with the Democrat appointees in declining to overrule the decision of the three-judge panel of which he was a part.
Meanwhile, the military commissions of Omar Khadr and Salim Hamdan resumed this week.
When the press arrived at Guantanamo, the Pentagon was showing off its wonderful new portable courts which, the Miami Herald gushed, “can be dismantled and shipped back stateside once trials are done”.
Yes, or shipped anywhere else in the world where summary show trials are planned.
Things got off to a shaky start when military publicists mistakenly handed the press corps secret evidence that might exculpate Khadr.
Unhelpfully for the Pentagon, the transcript of a US soldier’s testimony referred to another plausible grenade-lobber, and to an already wounded Khadr being shot twice again – in the back.
The motions and briefs are posted on the Pentagon website.
The argument on another motion, on Khadr’s status as a child soldier at the time of the “offences”, took a curious turn.
As I reported in my last post, the DC Court of Appeals has just ruled that Guantanamo detainees are not “persons” within the meaning of US law.
It seems the Department of Justice prosecutor takes a different view.
Responding to the argument that Congress could not have intended children to be subject to trial by military commission, the prosecutor claimed that it was enough that Khadr was a “person”, and he added, that means “anyone born alive”.