From Our Friends Down Under at Justinian

From Roger Fitch and our Friends at Justinian

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Alien Tort law gives a leg-up to Abu Ghraib victims ... Preview of new Supreme Court term ... DoJ's misuse of state secrets privilege ... US ranking of billionaires according to their political influence ... Latest report on judicial corruption ... Roger Fitch, Our Man in Washington, reports 

Alien Tort cases reinstated by 4th Circuit

HURRAH, the Alien Tort Statute lives again!  

This 1789 Act of the young American republic was used to hold US-based corporations to account for their foreign depredations, until the Supreme Court in its 2012 Kiobel decision ruled that overseas conduct must "touch and concern" the US with "sufficient force" to overcome a presumption against extraterritorial application of the statute.

As recently as July, the reliably-conservative 11^th Circuit ruled, in the Chiquita case, that there was no ATS jurisdiction over a US corporation for its admitted misdeeds in Columbia.

Now, following Mr Obama's judicial appointments, the formerly conservative 4^th Circuit has reinstated, en banc, ATS cases brought by former Abu Ghraib prisoners against the mercenary torturers, sorry, contract interrogators, hired by the US to provide "services" at the infamous Iraqi jail.  

Here's the latest twist in Al Shimari v CACI.  

It's hoped that the 4th Circuit's change of heart will spread across the Potomac to the DC Circuit, where there's been a request for en banc reconsideration of the civil case of Allaithi v Rumsfeld.

That case notoriously found that military wrongdoers acted within the scope of their employment, and anyway, Guantánamo internees weren't "persons" under the Religious Freedom Restoration Act.

Another DC case where en banc will be sought - now that Obama's four appointments have broken a right-wing Republican stranglehold on the circuit - is the Guantánamo counsel access case, Hatim.  

Yet there's a problem: the panel decision being appealed included a Democrat, Chief Judge Merrick Garland. 

Steve Vladeck has more.  

After his en banc partial win, the Guantanamero Ali Hamza Al-Bahlul is making another attempt before a DC Circuit panel to have his "conspiracy" conviction(s) thrown out.  

Here's the supporting amicus brief of the National Institute of Military Justice. Steve Vladeck comments.  

David Glazier also has a brief. Others are here, and none of them support the government. 

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FORCE FEEDING HEARING OPEN TO PUBLIC

The force-feeding hearing is before Judge Kessler at the DC District Court this Monday and Tuesday (October 6 and 7) at 10 AM. If you are in the DC area please find some time to go and watch for a few minutes and show your support for the men illegally detained at Guantanamo.

TWO IMPORTANT RULINGS

Friday was a busy day. Judge Kessler stepped up to the plate and not only ordered that the force feeding hearing be made public (she specifically found the gamesmanship of the government of waiting until less than two weeks before the hearing to request that the hearing be done behind closed doors "deeply troubling"). The good judge also ordered that the video tapes of the force feeding of Dhiab be unsealed and available to the press. The judge deserves credit for these two orders as all of the judges in the DC District Court of late have side stepped their judicial roles in the Guantanamo cases apparently waiting for something to happen in the political process. This lack of action by the judges has been worrisome-- maybe some of the other judges will decide to also step up to the plate and hold the government accountable for conduct in the Gitmo proceedings.