From Roger Fitch and our Friends Down Under at Justinian

 

The travesty of America's judiciary

ROGER FITCH ESQ • MONDAY, OCTOBER 2, 2023

Transformation of SCOTUS ... Alito and Thomas's ethical voids ... Rorting and stacking the courts in the Red States ... Circuit mischief ... Trump judges on the loose ... Roger Fitch reports from Washington 

After Donald Trump's presidency, no US government institution, however respected, may be considered safe or immutable. 

Perhaps the most striking change has been the installation of a reactionary and theocratic majority on a rogue supreme court.

The court's new term is about to start, with grave consequences likely; with a prospect that the court may claim even more power. 

Perhaps it's time to reflect on the court's transformation under its tiresome Chief Justice John Roberts, in the years leading up to this term. In the view of the veteran court observer Linda Greenhouse, the CJ has already achieved everything he set out to do in 2005.

He had the help of justices who had all worked in Republican administrations (Alito, Thomas, Gorsuch,  Kavanaugh) or participated as loyalist Republican lawyers in Bush v Gore (Kavanaugh, Barrett).

During the CJ's early years, the sleeper cell of Sam Alito (appointed 2005) and Clarence Thomas (1991) lay low, awaiting the moment some timely death (e.g, that of Ruth Bader Ginsburg) might make them part of an originalist majority. 

The Republican Senate's refusal to confirm Obama's appointee Merrick Garland (now Biden's AG) brought forward plans, and the unexpected 2016 election of Trump fully activated the two men and their intractable rightwing agenda - witness last year's full-throated implementation by Alito of Catholic abortion policy (Dobbs), and Thomas's expansive, indeed shocking, gun decision (Bruen).

Justices Thomas and Alito both have shocking ethical standards, but the court has declined to adopt an ethics code. Alito actually claims congress has no power to legislate respecting the court, but that's clearly wrong.

Compounding his own ethics problems, Alito recently gave a controversial WSJ interview refuting a yet-unpublished Pro Publica article about him. The interviewer? A lawyer with business before the court. 

Alito: enforcing Catholic abortion policy on the court 

Thomas's ethics offences are even greater, and arguably impeachable. 

One law prof's suggestion: a declaratory judgment of violations under the federal recusal statute, to "clarify for the voters whether they should accord legitimacy to the high court". 

≈   ≈   ≈

READ THE REST HERE.

Lest we forget...

 

THE TALKING DOG ON 9-11..(fixed)

Our 9/11 that is...

 The real (most poignant, anyway) legacy of 9-11, near as I can tell, is that the US government’s official policy went from torture is wrong and a serious crime (indeed, a crime against humanity) to what we’re doing isn’t really torture and if it is torture it’s not a big deal, and FUCK IT, TORTURE IS AWESOME! A military judge at GTMO of all places… kind of disagreed, and in an old school ruling, held that torture is still… a problem. Not a problem for likely Republican nominee Donald Trump, of course… who is in the torture is awesome camp. Oh, did I say that out loud?

Read the rest here.

Military Commission Judge says no to torture

 

From Andy Worthington:

At the heart of Col. Acosta’s measured and devastating opinion is an appalled recognition that the extent of al-Nashiri’s torture, and its location with a system designed to break him and to make him entirely dependent on the whims of his interrogators to prevent further torture, made it impossible for him to have delivered any kind of uncoerced self-incriminating statement to the "clean team" who interviewed him in 2007.

To establish this compelling conclusion, Col. Acosta painstakingly pieces together a narrative of al-Nashiri’s torture that tells this brutal story in more agonizing and forensic detail than any previous account has done, drawing largely on the accounts of al-Nashiri’s torture in the revelatory 500-page unclassified summary of the Senate Intelligence Committee’s report about the CIA torture program — technically, the Rendition, Detention, and Interrogation (RDI) program — which was released in December 2014, on the testimony of numerous experts called by the defense team in hearings between July 2022 and June 2023, and on the testimony of James Mitchell and Bruce Jessen, two staff psychologists from the U.S. Air Force SERE school, who were recruited to direct the torture program on the ground.

Read the whole 50 page Opinion here.

Read Andy Worthington's entire piece here.

From Roger Fitch and our friends down under.

 Accused felon at large

Monday, August 21, 2023
Justinian in Donald Trump, Indictment, Roger Fitch Esq, US Presidential election, US politics

The Washington and Atlanta indictments of Donald Trump ... A large number of lawyers as indicted gangsters ... History of unpunished Republican crimes ... First attempt to hold lawless politicians and operatives to account ... Quandaries and implications ... Possible defences ... Roger Fitch files from Washington 

This column occasionally reports on a colourful American politician facing criminal charges in two four US jurisdictions. Some joke that every fresh indictment increases his popularity among his lemming-like followers. The general electorate could be another matter.

In July, a superseding indictment was returned in the Florida federal court where this Donald John Trump stands charged with unlawfully retaining and concealing classified documents. New counts were added for evidence-tampering.

In August, Mr Trump was indicted twice more. That's encouraging: Americans are usually very slow to investigate and prosecute politicians' crimes, especially those committed by Republicans. 

There's a long history of unpunished Republican Party operations: Nixon's treacherous sabotage of LBJ's 1968 Vietnam peace talks in Paris, leading to seven more years of war; interference in Carter's 1979 negotiations with Iran for the release of American hostages; and the outright theft of the 2000 presidential election. 

Although much has been made of Richard Nixon's come-uppance in the 1970s, he was pardoned and never held to account.

The 80s under Ronald Reagan and Bush the Elder witnessed a crime wave, but with the help of judicially-sanctioned meddling in the Independent Counsel's work, only a few of those indicted in the Iran-Contra scandal (e.g, Defence Secretary Caspar Weinberger) were convicted. Most were pardoned by Bush as he left office.

Beginning in 2001, shocking and uncountable crimes were committed under the lawless G.W. Bush, e.g, round-ups of innocent Muslims, CIA torture, and unlawful military detention and trials. 

All these went unpunished under Bush and his successor Obama, who continued the previous administration's shameful and dishonest practice of asserting the shaky state secrets defence in civilian lawsuits by victims, even against complicit third parties.

The charges against Bush Junior's torture lawyers also went unpunished, after a timid DOJ internal inquiry, and the habitual DOJ fixer John Durham gave the CIA a clean bill of health for actual murders in custody.

Given that background, the indictments during August 2023 were big news: this century's first attempt to hold lawless US government officials and their political accomplices to criminal account.

READ THE REST HERE.

The forever war legacy

 I have been representing men at Guantanamo for more than 17 years... but not quite 18. Karen Greenberg has been covering all things Guantanamo for more than 18 years-. Her latest at Tomdispatch.com does a nice recap including "Shutting Down Gitmo Is Hardly the Last Step."

read the whole thing here.

Meanwhile-- I am plugging away trying to get my last client out of the Algerian prison-- with no help from the useless state department.

LETTER TO STATE DEPARTMENT RE: MY CLIENT SAEED BAKHOUCH

 23 organizations (including the ACLU and Amnesty International) signed on to a letter to the state department demanding that the State department intervene in my client's arrest in Algeria and force the Algerian government to live up to the assurances it made to the State Department when Saeed was released. So far the state department has not responded-- but apparently the state department thinks they are helpless in enforcing the assurances given to them in advance of Saeed's repatriation to Algeria. The state department has also refused to help facilitate my trip to Algeria by making the proper introductions. 

Center for Constitutional Rights spearheaded the organization of the groups signing on to the letter and a big thank you from me (on behalf of Saeed) for their efforts. Read the letter here. 

The Intercept reports on my client

 .........  read the whole article here.

State Shirking Responsibility

Gorman has continued to try to spur the State Department into action on Bakhouch’s behalf. Nearly two full months after Bakhouch was imprisoned in Algeria, Kadainow finally replied with specifics, saying she had “a chance” to speak with relevant diplomatic colleagues.

“Our Ambassador in Algiers was informed that Mr. Bakhouch is being charged under Algerian law for membership/affiliation with a foreign terrorist organization, which is a serious crime under Algerian law,” Kaidanow wrote. “He is currently under pre-trial detention while his case is under review by the Court d’Instruction, which will ultimately decide whether to bring him to trial or dismiss the charges and release him. The information regarding his case is still sealed.”

“Closing Guantanamo is not just about policy, it’s about people — the people who’ve been detained and tortured by the United States.”

 

 

Kaidanow added, “We continue to assert our interest in his humane treatment and legal rights in a variety of high-level settings.”

From Roger Fitch and Our Friends Down Under

 

The infallibility of SCOTUS

ROGER FITCH ESQ • TUESDAY, JULY 11, 2023

US Supreme Court makes it up as it goes along ... Contrived cases to fit a reactionary agenda ... Plaintiffs with no standing ... Further indulgence for religious discrimination ... Under-equipped judges on a rampage ... Roger Fitch reports from Washington 

The supreme court is in free-fall, an outlaw court making extrajudicial decisions. Spurious or controversial legal doctrines, some invented by the court, are deployed to achieve desired results: usually, the rolling-back of progressive legislation. 

A court that once heard 200 cases a year now hears less than 60, yet far from exercising any judicial restraint, the justices seem to relish "culture war" cases that fit the Catholic majority's rightwing agenda.

The cases that the court now agrees to hear, often manufactured by special-interest groups, are designed to give the conservative majority constitutional "cases or controversies" with which they can overturn policy decisions they dislike, and they're not afraid to manipulate standing and jurisdiction in order to hear them.

A common characteristic of these decisions has been the confusion they cause, but more than that, they bring into question the court's legitimacy. There's an apprehension that the court is becoming a super-legislative body from which there is no appeal, infallible because final, and it's borne out by the final decisions of this year's term:

Habeas corpus

The court began by dashing the hopes of prisoners, closing down appeals based on claims of actual innocence, in the appalling Jones v Hendrix, more here.  

    READ THE REST HERE.

No surprises here....

Men, like my Algerian client, were tortured at the hands of the US and have never received the help they so desperately need. 

As reported in The Guardian today:

The first UN investigator to be allowed to visit Guantánamo has called on the US government to provide urgent rehabilitation treatment for the men it tortured in the wake of 9/11 to repair their severe physical and psychological injuries and meet its commitments under international law.

In an interview with the Guardian, the UN monitor on human rights while countering terrorism, Fionnuala Ní Aoláin, said that the US had a responsibility to redress the harms it inflicted on its Muslim torture victims. Existing medical treatment, both at the prison camp in Cuba and for detainees released to other countries, was inadequate to deal with multiple problems such as traumatic brain injuries, permanent disabilities, sleep disorders, flashbacks and untreated post-traumatic stress disorder (PTSD)

read the rest here.

It is not enough to release the men. Most of the men, like my client, were never charged with a crime. But they were tortured and detained, many for decades. We must help them. 

INTERNATIONAL DAY OF SUPPORT FOR TORTURE VICTIMS

Today the UN released their latest report on Guantanamo "Technical Visit to the United States and Guantánamo Detention Facility by the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism." Link to the report is here. The report is comprehensive and addresses some of the issues that have come up with the men that have been transferred out of Guantanamo. It also addresses some of the problems of the men who are still being held.

The US responded briefly to the report. "Brief" being one of the two key words. It is one page. The other key word is "dishonest." I am looking for a link to the response but I will quote:

        "The Biden Administration has made significant progress towards responsibly reducing the detainee population and closing the Guantanamo facility. Ten individuals have been transferred out of Guantanamo since the start of the Biden-Harris Administration - one-quarter of the population we inherited - and we are actively working to find suitable locations for those remaining detainees eligible for transfer."

So where should we start? First, there was nothing responsible about reducing the detainee population by sending my client to Algeria with no firm commitment on the part of the Algerian government that he would be treated fairly and humanely.... that is unless the US thinks it is fair and humane to send him to prison in Algeria after more than 20 years in prison at Guantanamo.

Second, the Biden- Harris administration did not find a suitable location for my client. In fact, they completely dropped the ball, unless of course the administration thinks prison is a suitable location.

On Friday, the state department confirmed for me:

1. That they have no control over what the Algerians are doing to my client and they have no way of enforcing the assurances made by the Algerians that my client would be treated humanely;

2. That they will do nothing to help facilitate my travel to Algeria to confirm my clients treatment;

3. That they hope things will work out but there is nothing they can or will do.

Apparently, significant progress to the State department means offshoring the men to other countries in a constructive custody arrangement. From the prison at Guantanamo to a prison in Algeria and to other unknown prisons to be determined.

FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER AT JUSTINIAN

 

Deep doo-doo

ROGER FITCH ESQ • TUESDAY, JUNE 13, 2023

Trump indictment ... Top secret, purloined documents ... Fingered by his own people ... More indicting to be done ... Dangerous crim running for president ... Latest from the Supreme Court ... Clarence Thomas weighs in on one of Harlan Crow's cases ... Roger Fitch reports from Washington 

"How many indictments does it take to bring down a cult leader?" - The Intercept 

There's not much news to report from the US, other than the federal indictment for espionage of a former president, and the apparent indifference with which it was greeted by his mentally or morally-deficient supporters.

As Salon observed apropos the MAGA response to Trump's dinner party with "Hitler fanboys": 

"If anything, Republican voters keep rallying to his side, predictably pleased that Nazi-snuggling has the liberal-triggering effect they crave." 

Still, Espionage Act violations? Shouldn't that disturb them?

Just Security had already provided a model prosecution memorandum analysing six federal crimes that could form the basis for charges against Trump who, in the event, was charged with seven crimes. 

The indictment, which included charges against his former While House valet and loyal acolyte, Walt Nauta, ran to 38 counts.

Even before charges had been filed in a Florida court (and the arraignment randomly assigned to the horrible Trump-judge Aileen Cannon), the Trump-backlash began; as TPM put it: 

"The GOP speaker of the House, GOP senators and representatives, the leading GOP candidates for president, and the whole right-wing Wurlitzer launched a furious attack on the rule of law."

In fact, Trump faces very serious charges under the espionage laws; as George Bush père would say, he's in deep doo-doo, and his prior statements about classified documents don't help him. 

Walt Nauta: collar attendant and valet

READ THE REST HERE.

A Dysfunctional State Department

 When it comes to the transfer of Guantanamo prisoners it is important to have all of the details ironed out in advance. It is especially true when dealing with countries like Algeria. Algeria has long been a tricky country for the men to be sent back to. In recent years it has been even trickier as the Algerian government further cracked down on civil society.

I knew this as my client was moving towards repatriation and I spoke with and emailed the people in the State department responsible for Saeed’s safe repatriation. I was assured on five separate occasions that everything was worked out and Saeed would be treated fairly and humanely. I was especially concerned because Saeed had been subjected to torture by the US and he continues to suffer from that trauma. Saeed preferred to go to his home country if it was safe for him and he knew that I would not let him go back to Algeria if I did not think it was safe. I determined, from the assurances provided by the State department, that it was safe for Saeed to go home.

Then I learned that Saeed was brought before a judge (after his initial interrogations) and that the judge announced that Saeed’s version of events that led him to be captured by the U.S. did not match the version put forward by the U.S.. The Judge announced that Saeed was being stripped of all of his rights and he was sent off to the notorious Boufarik prison to await trial. And there he sits.

I have learned that Saeed has been treated harshly at Boufarik. Somehow Saeed’s heel was broken. The medication sent with Saeed when he boarded the plane in Guantanamo was taken from him. Saeed is awaiting trial on charges that he has pledged loyalty to Osama Bin Laden- a charge never levied at Saeed by the U.S.

I learned of the Court proceeding two days after it happened. I immediately contacted the people in the State department with whom I had worked. Much to my chagrin the State department did not monitor Saeed’s repatriation, and I was the one to let them know what was happening to Saeed.

Officials in the State department expressed alarm and concern and promised to look into it. I too was alarmed and concerned- but my alarm and concern was a little different. I was (and continue to be)alarmed and concerned that the State department failed to do any monitoring of Saeed once he stepped off the plane in Algiers.

All of the assurances that were supposedly reached between the State department and the Government of Algeria have disappeared. There is nothing safe or humane about Saeed's treatment at the hands of the Algerian government. Now the State department shrugs its collective shoulders and says, “there is nothing we can do.”

Bullshit.

Stay tuned. I plan on proving them wrong.

Searching for Saeed....

 I am still not ready to write up my own account of this travesty involving by client Saeed Bakhouch but hopefully later this week I will have time to write it up.

Meanwhile read what former detainee Mansoor Adayfi has written about Saeed's plight - amd the similar plight of other former Guantanamo detainees. 

I will have more soon.

AND SPEAKING OF TORTURE AWARENESS...

 I will have a longer piece on this in the next few days. My Algerian client, Mr. Bakhouch, who has long suffered from PTSD and depression from his 20 years of detention without charge, is now sitting in an Algerian prison while the State department shrugs its shoulders and claims to be powerless. 

I am rattling and will continue to rattle as many cages as I can and I will provide updates as I am able.