FROM OUR FRIENDS DOWN UNDER AT JUSTINIAN

 

Bring back Dwight Eisenhower

Roger Fitch Esq • Tuesday, October 15, 2024

Supreme Court's new term ... Judicial culture war ... Motions for Trump's immunity determinations ... Cognitive decline on the election trail ... Judges waiting to muddle the election results ... Election countdown ... Plans for a new Supreme Court ... Our US legal correspondent Roger Fitch reports from Washington 

"[Trump] was a particularly unattractive version of his titanically arrogant, spectacularly dishonest and shockingly ill-informed self, claiming that Democrats were slaughtering newborns, that Harris was a Marxist, that he'd championed the Affordable Care Act, that the Jan. 6 rioters were veritable peaceniks and that as soon as he turns his gilded hand to the war between Russia and Ukraine ... it will magically end" - NYT's Frank Bruni on the Harris-Trump debate

"[N]o one in the Republican party dare say the emperor is naked and demented" - Salon

"[T]he press ... is the weak slat under the bed of democracy" - AJ Liebling

The countdown to the presidential election has begun, and the media, clinging to the safer narrative, have given the candidates the full horse race spin. Although Trump's cognitive decline should be topic one, his rallies are often reported in facile headlines and articles that ignore, paper-over or polish the incoherent rants of the half-mad Republican candidate. 

The ex-president, now a convicted felon, has moved beyond personality disorder, egomania and malignant narcissism, into new realms of fantasy beliefs, yet his craziness is scrubbed up by the media.

At the 11th hour, in the midst of media "sane-washing", Trump's mental fitness is finally being addressed, even by the timid NY Times. 

As a Salon columnist remarked, the former president "was always hobbled with severe personality disorders and a lifelong aversion to learning, but this is different. He's losing words, forgetting basic details (like who he's running against) and droning on about stuff that only makes sense in his fractured brain".

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"[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers, having ... practically resigned their Government into the hands of that ... tribunal" - Abraham Lincoln

"Judicial activism is a great threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the constitution and separation of powers, and imposing their personal opinions on the public ... We oppose stealth nominations to the federal bench ..." - Republican Party platform (2008)

READ THE REST HERE.

Give to the Guantanamo's survivor fund....

 I know, if you are like me, you are giving a lot to help with this election but if you can spare a little please help the Guantanamo survivors. Click here to support these men.

LEST WE FORGET

 

September 11. 23 YEARS LATER...

 As per my usual posting on this day I turn to my friend the talking dog. The dog was actually in the midst of that chaos and shares his reflections most years.

Here is this years. 

From Roger Fitch and our friends down under at Justinian.

 

Election muddling

Roger Fitch Esq • Wednesday, September 4, 2024

Mounting frenzy ... Democrats produce a Black Swan moment ... Trump's own goals ... Australia's most toxic export ... Murdoch - the man who gave us Trump ... Plans for a new "steal" campaign ... Republican judges  meddling in the election ... Roger Fitch files from Washington 

"Trump should step aside as his criminal convictions and continued legal troubles have clearly taken a toll on the 78 year old conman" - Congresswoman Ilhan Omar (D-Minnesota)

"Kamala Harris has a resumé. Donald Trump has a rap sheet" - Congresswoman Jasmine Crockett (D-Texas)

Americans seem to be awakening from the learned helplessness induced by the Trump Stolen Election Delusion. For nearly four years, a political subversive and supporter of violent insurrection has been running around the country, claiming he won an election he actually lost by seven million votes. Many believed him. 

The spell of this absurdist drama may finally be breaking. There's been a remarkable change since the Democrats chose an articulate career prosecutor to stand for president against the incoherent felon representing the Republicans. 

Only weeks ago, Democrats were dreading their upcoming August convention, with President Biden's campaign seemingly doomed, even when facing such a dreadful candidate as Trump. 

What no one expected was a Black Swan event. Jonathan Alter explains.

That came when Mr Biden, though a "transformative" president, stumbled, withdrew, and was replaced as candidate by his Vice-President, Kamala Harris who has recently led by 3+ points. Trump is now the weaker candidate, and the election is soon - November 5th.

On the eve of the Democrats' convention, House Republicans released the report of a sham "impeachment investigation" of President Biden. As there was no evidence of wrongdoing, and Mr Biden was no longer the candidate, it sank like a stone.

READ THE REST HERE.

more on the broken plea deal

 Shayana Kadidal is one of the Guantanamo attorneys from the Center for Constitutional Rights- the umbrella organization that organized all of the pro bono attorneys (including me). Shayana has been doing this at least as long as I have but he still has clients left at the base- including in the military commissions.

His opinion on all of this is worth a read.

(h/o to Walt!)

Another musical interlude.... because we need more music!

 

Military commission update UPDATED (again)

 It has taken more than 20 years of bullshit military commission proceedings to finally come to a conclusion for three of the men that have been held. The death sentence was sought for these three men. Problem was that the vast amount of evidence was procured through torture. The lawyers representing these three men have been relentless in pursuing evidence of their torture and demanding a plea deal with life sentences instead of the death penalty. The military has finally agreed.

read more here. 

Oops on that. Seems the secretary of defense says no! I feel certain that would not have been agreed to without the secretary signing on to begin with so we will wait for the full story to unravel. Meanwhile- plea deal is off and the death penalty is back on. 

[actually I am only seeing this in the New York Times. I canceled that subscription a month or two ago because of its constant pro trump anti Biden coverage. So let’s wait to see if a credible news source confirms!]

Just Security just did an analysis of the train wreck caused by Sec'y Austin's shenanigans. I guess my biggest take on this is that it opens the door to more litigation. 

From Roger Fitch and our friends down under at Justinian

Trump v US

Roger Fitch Esq • Tuesday, July 30, 2024

Judge Aileen Cannon ... No more special prosecutors ... Rogue judges at the highest level ... Presidential immunity decision worse than anticipated ... A dreadful partisan court ... Milwaukee convention ... Vance has no conviction - unlike his running mate ... Roger Fitch files from Washington 

"FBI searches for motive in Trump shooting" - mystifying Associated Press headline.

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"The parallels between [Trump v US] and Germany's Enabling Acts …similarly ratified by the German Supreme Court right after Hitler took power in early 1933 - are startling. That collection of laws ruled that whatever Hitler said in the context of an 'official act' instantly became the law of the land. For all practical purposes, as the nation's leader, he became immune from prosecution under the laws that applied to every other normal German or elected politician." - Thom Hartmann

Although everyone is reeling from the new presidential election dynamics in the US, all eyes should still be on the US Supreme Court and a decision being called the Dred Scott of our time. 

Hitler: immune from prosecution

In perhaps the most partisan power grab in its 235-year history, the supreme court on July 1 attempted to nullify all the outstanding federal criminal litigation against Donald Trump as well as litigation under appeal in New York State and Georgia. Rather than Justice Gorsuch's promised "rule for the ages", it's a rule tailor-made for Donald Trump.

As international law professor Oona Hathaway noted in Foreign Affairs, for the rest of the world the US president has always been above the law. Now Americans themselves will learn what that means.

In a decision that will live in infamy, the court ruled that a president is, in all essential matters, above the law. That's contrary to the Constitution; Article 1, Section 3, makes clear that even a president who has been impeached and convicted remains "liable and subject to indictment, trial, judgment and punishment, according to law".

By a majority of 5-4 (Justice Barrett not joining), dicta was inserted in Trump v US that may affect multiple criminal prosecutions in several states, e.g, those involving fake electoral slates. 

The five justices opined that even the evidence of crimes that falls within the president's astonishingly-broad "official acts", e.g, contacts and phone calls between the president and others, perhaps bribery and corruption, attempted subversions of justice through corrupt contacts with department employees (e.g, Jeffrey Clark in the DoJ), intimidation of the Vice-President and the Justice Department's senior officers, pressuring Georgia officials to "find" votes, cannot be admitted in court, nor the president's motives and good faith queried.

More here on CJ Roberts' now-notorious footnote 3.

READ THE WHOLE FITCH HERE.

unity

 we will make it work.

FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER AT JUSTINIAN

Reign of Terror

ROGER FITCH ESQ • FRIDAY, JULY 5, 2024

SCOTUS ... Shocker decisions from the latest term ... The Trump Docket ... Presidential immunity ... Gratuities and bribes ... Obstruction ... Admin law trashed ... Criminalising the homeless ... Espionage Act - two sides of the coin for Assange and Trump ... At last, someone convicted at Guantánamo of a real war crime ... Roger Fitch reports from Washington 

"Somewhere along his life path, his Saurian eye identified a need among a swath of Americans for nonsensical gibberish … In another era, Trump's true calling in life would be a travelling tentpole circus barker, hustling from town to town with an entourage of snake oil salesmen, other grifters, and assorted freakish animal and humanoid curiosities... that's entertainment, and as ever, it serves a nefarious purpose - diverting the crowd from the pickpockets" - Nina Burleigh

........

The Justice Department has filed two contentious espionage cases in recent years. One, against an Australian citizen, is novel, an actual Trumped-up crime. The other, filed by a special counsel appointed under President Biden, is against Trump himself. 

Unlike Julian Assange's "offences", the charges against Donald Trump fit perfectly: it's a straightforward prosecution for wilfully and knowingly taking and concealing classified documents, misusing them and obstructing their retrieval. 

The Espionage Act, 18 USC 793, used in both prosecutions, does not say the accused must be working with another country to deliberately harm the US, only that it is a crime to have ...

"... unauthorized possession of, access to, or control over [information] ... the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation," and to wilfully retain it while failing "to deliver it to the officer or employee of the United States entitled to receive it."

Prosecutors are not required to prove that the defendant knew the information could harm "national security", only that any reasonable person would understand the harm it could do. It's not necessary to prove actual damage or even that the documents were classified, only that they relate to US national security.

The Espionage Act was first enacted in 1917 during WWI and was initially used quite oppressively. Modern prosecutions, however, have typically been of spies and careless public or former public officials, and recently, whistleblowers.

Until Julian Assange, the Act was never used against a journalist, and Obama declined to use it against the Australian. In fact, Obama commuted the sentence of Assange's alleged co-conspirator, convicted of leaking the same information. 

Nevertheless, the experiences of Assange and Trump have greatly diverged. Whereas Julian Assange was harassed and persecuted for years before indictment, Donald Trump luckily landed in the court of a judge he appointed, Aileen Cannon, who appears to be auditioning for Trump's next supreme court vacancy.

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Assange: might have beaten the Espionage rap

The conviction of a journalist under the Espionage Act was only certain with a guilty plea; it's not clear the charges would have been upheld in a US court had extradition proceeded. Like Guantánamo, only the use of plea deals with no appeal allows legally-dubious charges to stand. 

In fact, the similarity of the Assange and David Hicks prosecutions is striking. Applying the Espionage Act to Assange's journalism is reminiscent of David Hicks' "war crime" conviction for the invented (later invalidated) "material support for terrorism". 

Sadly, the Pentagon continues its attempts, through guilty pleas, to convert civilian offences (terrorism and conspiracy) into "war" crimes: US-created offences unknown to international huminatarian law and thus not part of the "law of nations" as required by the US Constitution. The inchoate offence of "conspiracy" is one such. 

In 2014, a military commission charged Abd al-Hadi with various charges and in June 2024 accepted his guilty plea for certain ones, including "conspiracy". Al-Hadi did commit war crimes in an international conflict, and he's accountable for those recognised under IHL, but not for the American-concocted "conspiracy".

Al-Hadi's lawyers managed to strip out of his guilty plea all charges except three valid ones: treachery or perfidy; attacking protected property; and attacking civilian objects, plus the invalid conspiracy. 

Meanwhile, Al-Hadi has made history: he seems to be the only person ever convicted at Guantánamo for committing actual, internationally-recognised war crimes that occurred during an international conflict involving the US. 

 READ THE ENTIRE FITCH HERE.

Hope dies last....(con't)

 and by popular request:

HOPE DIES LAST

 I remain optimistic about the future of my country but I must admit sometimes it is hard to so remain!

So let me share this little number with you and remind everyone- democracy is not a spectator sport. So get working if you are not already.

H/O to Peter.

Musical interlude

 Every mother's day for many years I have posted the U2 song "Mothers of the disappeared" and dedicated the song to my Guantanamo clients and the many others taken from their homes never to be seen again-- or at least never to be seen for a long time.

This past mother's day in the U.S. was on May 12th. Coincidently, on that same day, the Algerian Government was bringing charges against my remaining Guantanamo client.  Saeed was being charged with being a member of an unknown terrorist organization.  Although held for more than 20 years Saeed was never charged with any crime by the US. The faulty charge however came from random US documents taken out of context. 

I was too preoccupied with the mess our State department caused in Saeed's case to get my usual mother's day song posted.

Now, Saeed is no longer "disappeared" and although his mother was not alive to see him come home this song is for Saeed.

From Roger Fitch and his friends down under at Justinian

 

Pecker problems

ROGER FITCH ESQ • TUESDAY, JUNE 4, 2024

Trump minting coin from his felony convictions ... Toadies in the bleachers ... Justice Alito flagging his proclivities ... SCOTUS corrupted ... Rule of lawlessness ... More horrible judicial distortions in the pipeline ... Roger Fitch files from Washington 

"The smart play ... would have been to say it doesn't matter whether or not [Trump] had a relationship with Stormy Daniels, because that renders big chunks of the case irrelevant. But character is destiny, and Trump's character is egotistical and combative" - former federal prosecutor, NY Times 

"Trump Undone by the Truth of his Pecker" - ambiguous Emptywheel headline 

Donald John Trump has been convicted on all counts in People of the State of NY v Trump. The offender was charged with falsifying records to cover up another criminal offence. This could be his usual business practice, but in New York, it's a felony.

Lawfare listed what prosecutors had to prove in People v Trump, and the Times listed the 34 counts that were proved. 

Further felony charges against Trump remain and are awaiting trial in Georgia state court (election interference), DC federal court (the January 6 election theft attempt) and Florida federal court (Espionage Act violations), but Trump is already a convicted felon, affecting travel to 38 countries including Australia.

Sadly, Trump won't do the decent thing: drop out. Running is too lucrative. Since his conviction, fresh millions from sucker supporters have flooded in. "Moron", after all, is an Americanism.

The trial itself was uncontroversial, except for the unseemly behaviour of the defendant, who ranted before and after his court appearances, accompanied by an entourage of what one cartoonist called "Trump Chumps and Toadies", i.e, Republican camp followers and vice-presidential aspirants. 

Mob boss: "Benny Eggs" Mangano

Trump may not be an actual mob boss, but he took the precaution of hiring Susan Necheles, a former (unsuccessful) lawyer for the Genovese crime family underboss Venero "Benny Eggs" Mangano. In Trump's trial, Necheles had the unenviable task of cross-examining Stormy Daniels, and it didn't go well. 

The Republican groupies who followed Trump into court each day included the former head of Hell's Angels; a NY criminal gang of yesteryear; the convicted NY City Police Commissioner Bernie Kerik (pardoned by his patron); the crackpot lawyer Alan Dershowitz; the health care plunderer, now Senator, Rick Scott; the theocrat House speaker Mike Johnson; the Trump-convert and Hillbilly Elegy author, Senator JD Vance; the fraud-indicted Texas AG Ken Paxton; and the Indian-American vice-presidential wannabe Vivek Ramaswamy. 

There were so many congressional sycophants that it could have cost the Republicans a close vote in the evenly-balanced House.

Speculative clues to the further adventures of NY v Trump may be found in the Spring Exam set by Cornell Law Professor Michael Dorf for his Federal Courts course.

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READ THE REST HEREHERE.