The Military Commission Fiasco....

I have posted many times about the failures of the military commission system set up by the Bush administration to avoid the federal courts. This article in the ABA discusses many of the legal and ethical problems.

WIth Hellp Like This....

Seems we are sending our torturer in chief to investigate the torture and death of  Jamal Khashoggi. read more here.
You really cannot make this shit up.
With any luck she will get arrested for her own war crimes.

The ethics complaints against Kavanaugh and other jokes....

So the Guardian reports today that the 10th circuit judge that chief justice Roberts selected to review the many ethics complaints against Kavanaugh was/is a close buddy of Kavanaugh. In fact, he is another arch conservative that Kavanaugh worked hard to get on the bench back when Kavanaugh was working in the Bush white house. Small world, aye?

As Leslie Proll, who worked on judicial appointments back when Tymkovich was being pushed by Kavanaugh for a seat on the 10th circuit (and now advises the NAACP), “This is the wrong judge at the wrong time,” she said. “Any other chief judge in any other circuit would have demonstrated more impartiality and less conflict. Appearance of bias is important in the law and this fails the test.”

Read more about Roberts sinister game in appointing this particular judge to investigate the claims against Kavanaugh here.

Kavanaugh and Gitmo... lots of similarities.

An interesting comparison on the two... read the whole thing here.

h/o to Walt

The Gitmo Template

For some of us, at least, this kind of denial of justice in America is nothing new. If you were following the war on terror all these years, such a wholesale willingness to compromise the very essence of justice has long seemed like a dangerous trend in clear view. Under the circumstances, it should have been no surprise that Brett Kavanaugh came out of the Bush White House and that the former president supported him vocally throughout the entire confirmation process.

In fact, Guantánamo could be said to have created the template for that quasi-courtroom in Washington and the various deviations from normal investigation, law, and procedure that it followed. For observers of that island prison, the Kavanaugh hearings ring an all-too-familiar bell. For nearly a decade and a half now, such quasi-courtrooms have been the essence of “justice” at that prison camp, as one sham hearing after another has been held. Periodic “reviews” of the very legitimacy of holding detainees in an offshore prison beyond the reach of American justice that had no analog in the American legal system -- Combatant Status Review Tribunals under George Bush and Periodic Review Boards under Barack Obama -- were introduced simply to justify the continued incarceration of prisoners there. The only goal of such hearings, it appeared, was to avoid the requirements of established protections on the U.S. mainland like due process.

Meanwhile, in Gitmo’s military commissions, as in the Kavanaugh hearings, a central, impartial, independent authority was missing. They are overseen by judges without the power and command of those in the federal court system. Instead, as was true with the White House during the Kavanaugh hearings, the command influence of the Pentagon -- and at times the CIA -- has hovered over Gitmo’s hearings from day one.

The credentials of the latest judge there, Marine Colonel Keith Parrella, named to the position in August, have only underscored a perpetual lack of regard for professional standards. Parrella, who has had no experience in capital cases, will be overseeing future hearings for the still-untried alleged co-conspirators of the September 11th attacks, who, 17 years later, face the death penalty. Nor has time been allotted, as the Miami Herald’s Carol Rosenberg has pointed out, for the new judge to digest six years' worth of motions or 20,000 pages of transcripts. No matter. It’s no more of a problem than not absorbing or dealing with the Kavanaugh evidence was to the White House or the Senate Judiciary Committee. Compromised professional standards and procedures, the calling card of Guantánamo's attempts to adjudicate justice, are now clearly making the move to the mainland.

Inside Gitmo’s quasi-courtrooms, violations of longstanding procedure occur on a regular basis. For example, attorney-client privilege has been upended on numerous occasions over many years. Hidden government surveillance devices have been used to spy on detainee lawyers and their conversations with their clients, as in the case of Abd Al-Rahim al-Nashiri. So, too, the government urge to withhold witness testimony, apparent in the Kavanaugh hearings, echoes Guantánamo where the very idea of a fair trial has long seemed inconceivable to experts. As at the Judiciary Committee in recent weeks, excluded evidence has been a commonplace feature of Gitmo’s military commissions. Lawyers for the detainees are regularly ignored in their attempts to present potentially crucial material, as in the case of Ammar al-Baluchi, especially when it relates to the torture and mistreatment of detainees while in custody.

The Dysfunctional PRB's

The periodic review board (PRB) is broken. It was never great shakes to begin with but now it is completely broken. The PRB is supposed to work like a parole board in that the men are reviewed for release (of course one big difference is that people who are facing a parole board have actually been charged and convicted of a crime... unlike the men at Guantanamo). A committe made up of the national security departments reviews the men and determines whether or not they think it is safe to release them. Not one man has been deemed worthy of release since Trump became president and it appears, like everything else the moron has touched, that this has become even more of a political process than it was under Obama. Sigh.

Read more here.

North Carolina's role in torture....

Late last month the North Carolina Commission of Inquiry on Torture issued a report on the role of that state in our rendition and torture of men suspected of being involved in terrorist activities (italics emphasizing that these men were only suspects).

Just Security has outlined the notable findings which I am copying below. The full report can be viewed here.

Key findings

• Private companies played a significant role in post-9/11 CIA rendition and torture: An essential finding of the NCCIT report is that N.C.-based Aero Contractors, Ltd. “played an absolutely central role in the CIA’s torture program,” by operating two aircraft — N379P and N313P — which conducted over 80 percent of the U.S. government’s renditions between September 2001 and March 2004. The report puts the total number of individuals transported by Aero at 49, with 34 of those among the at least 119 individuals in CIA direct custody, and at least 15 more that the CIA rendered to foreign custody or U.S. military detention. Comprising citizens of 16 countries, these individuals included a 16-year-old student and a pregnant woman, Fatima Boudchar.
• State-level support of post-9/11 rendition and torture was critical: As the NCCIT report details, the role of state-level collaborators in U.S. post-9/11 rendition and torture is often overlooked. North Carolina’s role is particularly concerning because not only are local and state officials and infrastructure implicated—authorities provided public airports for rendition flights, built a hangar for rendition aircraft, hosted Aero’s headquarters at Johnston County Airport and “made several grants to the county airport, at least one of which was specifically used to fortify the perimeter of only Aero’s corner of the facility”—but they have also refused to investigate these connections at every turn. 
• Rendition to foreign governments was integral to the CIA program yet not nearly enough is known about its scope and its victims: The NCCIT report emphasizes that while there has been an official inquiry into what happened in CIA “black sites” and who was in them—this was the 6,700-page study by the U.S. Senate Select Committee on Intelligence (SSCI), the redacted summary of which was released in December 2014—this only scratches the surface of U.S. post-9/11 policies. Gaps persist because that inquiry focused on the federal level and failed to examine the role of states or private companies, and also ignored U.S. rendition to foreign custody for interrogation or detention.
• Rendition was in and of itself a form of torture: From the CIA’s “enhanced interrogation techniques” (e.g., waterboarding) to the humiliation of prisoners at Abu Ghraib prison in Iraq, the official and public account of post-9/11 practices to date focuses on what happened to individuals once in detention. However, the NCCIT report adds a previously overlooked dimension, by detailing both the physical and psychological harm suffered during the process of transportation to CIA “black sites” and/or foreign prisons. In emphasizing that “[p]reparation for ‘rendition’ involved physical and sometimes sexual assault, drugging, and sensory deprivation. Rendition flights were experiences of prolonged pain, dread, and terror,” the NCCIT report widens the debate to additionally focus on what happened in the “torture chamber in the sky.”
• New details on the harms experienced by victims, including their families and communities: Individuals disappeared to CIA “black sites” or foreign custody on flights originating in North Carolina have yet to have their day in U.S. courts, including when Aero Contractors has been a named defendant. The NCCIT report corrects this erasure of victims’ experience, emphasizing: (1) a range of impacts on victims, including “survivors’ legal, economic, physical and psychological health, family, and social needs;” (2) that these impacts are continuing harms, including a “phobia of hope,” or “a terror of thinking about the future;” (3) that these harms are also felt by family and communities (questions such as “how will we live?” asked by Khadija Anna Pighizzini, wife of survivor Abou Elkassim Britel, powerfully echo this); and (4) that these harms are aggravated by the lack of recognition, apology, and other remedies.
• The full extent of the U.S. accountability lag: The NCCIT report throws into even sharper relief how the U.S. government—at the federal as well as state level—has fallen far short in redressing wrongs. Outside of the United States, high-profile inquiries in the Council of  Europe and European Parliament have exposed the role that North Carolina-based aircraft played in rendition. The European Court of Human Rights has decided five landmark cases—including two in May of this year—and three more cases have been submitted to African and Inter-American bodies involving individuals on aircraft N379P and N313P. Additionally, in May 2018, the U.K. government reached “a full and final settlement” with, and apologized for the role it played in, the rendition and detention of Aero-rendition victims Abdel Hakim Belhadj and Boudchar. Domestically, however, no federal official or agency has been held to account. And at the state level, according to the NCCIT report “[o]fficial responses to North Carolina citizen advocacy have included public silence and non-responses, dismissals by state officials on grounds of lack of jurisdiction, and the monitoring and arrest of citizen advocates rather than investigation of Aero.”
• Why a citizen-led process was needed and what it offers: As the first non-governmental and state-level inquiry on the topic of post-9/11 rendition and torture, the NCCIT is clearly novel. Born out of bipartisan anti-torture citizen advocacy—including by North Carolina Stop Torture Now, the North Carolina Council of Churches and many others—the NCCIT demonstrates the potential for truth and accountability to be attained by citizen activism when traditional doors are shut by non-cooperating governments. Testimony provided by Mohamedou Ould Slahi, including his remark—“thank you wholeheartedly, the people of North Carolina, thank you very much for standing to people who cannot stand up for themselves”—shows that victims may also get some closure and value from these non-official inquiries.

From our Friends down under at Justinian.....

An illegitimate SCOTUS

ROGER FITCH ESQ • THURSDAY, OCTOBER 11, 2018

The US Supreme Court has been bought ... Long campaign to stack the court with judges favourable to corporate interests ... Huge lobbying and spending to secure Kavanaugh's confirmation ... Guns, God and presidential power ... The mid-terms and intensified voter purging ... From Our Man in Washington, Roger Fitch

"With Anthony Kennedy's retirement, there is no discriminatory voting restriction the justices will be unable to sanction, no immigration law born in animus they will be unable to approve, no expansion of corporate power they will be unable to accept, no grant of presidential immunity they will be unable to uphold, no financial or environmental regulation they will be unable to strike down, no religious objection to an antidiscrimination law they will be unable to recognize, no worker protection they will be unable to repeal, no limitation on abortion they will be unable to allow, and no abuse of power by law enforcement they will feel compelled to restrict" - The Atlantic.

The inevitable has happened. The US senate, unmoved by sexual assault allegations, the nominee's surly demeanour, and an open letter of opposition signed by over 2400 law professors, conferred a lifetime supreme court appointment on DC Circuit Judge Brett Kavanaugh.

A "movement conservative", Judge Kavanaugh is a Republican stalwart and former player in distasteful and highly partisan political operations. The party clearly believes he can be relied upon to bat away legal precedents standing in the way of party policy or the Republicans' hold on office (e.g, the coming troubles of Mr Trump), and his first case may offer him a chance to, uh, make a difference. 

At the supplementary senate hearings held following new accusations of youthful sexual assaults, Kavanaugh showed a palpable sense of self-entitlement, revealing an injudicious temperament, yet another cause for concern, including to the American Bar Association, who wanted to reopen its review of his qualifications.  

A snarling Kavanaugh lashed out at "the Clintons" and "left-wingers", ominously adding, "what's goes around, comes around". As it turns out, Kavanaugh's bad-boy drinking, woman troubles, and (perhaps calculated) senate counterattack have all been red meat for Trump's white male base in the lead-up to the November 6 elections.

Earlier hearings followed extensive legal blogging on Kavanaugh's judicial record and the likely consequences of his appointment; the senate focussed on his legal philosophy and attachment to precedent.

Conservative donors outspent liberals to influence the confirmation vote; corporate front groups keen to seat Kavanaugh spent $15 million. This was unsurprising; the nominee's double standard for corporations has already been the subject of a report by Public Citizen - more here.

By a happy coincidence, Judge Kavanaugh has a very broad view of campaign contributions, including those employed to place judges like him on state and federal courts.  

The supreme court was already lurching right, particularly after Trump's addition of the radical Neil Gorsuch, and Justice Kennedy's occasional departures from Republican party script usually involved social issues such as criminal justice or gay rights. Even if Kavanaugh had not succeeded, an equally odious justice would have been confirmed by the immoderate Republican senate.   

Although there is some suggestion that CJ John Roberts will provide a "swing vote", it seems more likely that an extreme far-right faction (comprising the CJ, Clarence Thomas, Joseph Alito, Gorsuch and Kavanaugh) will be in control for the first time since the early days of Franklin Roosevelt. All five of them lack legitimacy, in the view of the eminent law dean Erwin Chemerinsky. 

The Atlantic's Adam Serwer fears a return to the days of the 19th century "Redemption" supreme court; others worry that the court could be headed for the lawless laissez faire of the Lochner era, a business paradise where most social and economic regulation was constitutionally circumscribed. 

Some Democrats have threatened to impeach Justice Kavanaugh, and certainly a newly Democrat house of reps could investigate his misstatements to congress (and a lot more: Republicans are circulating a spreadsheet of potential unwelcome investigations if the Democrats "flip" the house in November). 

In the long run, there remains the option of "court-packing": FDR's proposed Judicial Procedures Reform Act of 1937, though never adopted, precipitated a salutary left turn on the court, enabling him to have his legislation upheld.

It's a big choice, but there's nothing to prevent the number of justices being increased under a Democrat administration; nine justices are really too few for the proper supervision of a vast judicial system with thirteen circuit courts of appeal.  

Law prof Michael Dorf thinks that two additional judges would be about right, and the best revenge for the Republicans' 2016 theft of Antonin Scalia's seat; there may also be a need for new court of appeals positions, to offset the Republicans' ongoing judicial sabotage in the lower courts. 

The supreme court's new term has meanwhile begun. Marjorie Cohn looks at the pending big cases that explain the Republicans' rush to get Brett Kavanaugh on the court.  On his first day on the bench, Justice Kavanaugh heard oral arguments in two of the cases making this term a "criminal law professor's dream".

READ THE REST HERE....

And for those of us who tried....

Dedicated to Kavanaugh and the senators who are supporting him....

It looks like a done deal...

Kavanaugh will sit on our highest court.

A man who lied to the senate and sexually assaulted a young woman while in high school... and who knows what else he has done because we did not get a full and fair investigation.

Shame on all of those senators who vote yes.

The innocence of Abu Zubaydah

I have written alot about this man over the years. His saga overlaps with my remaining client's saga and so I have paid special attention to his plight. I believe that he is wrongly being held -- I can't say wrongly convicted because of course he has not been charged or convicted. Like my client he languishes at Guantanamo.

His attorney has written about his innocence. Read his story here.

HAPPY ANNIVERSARY MR. DOG

My friend, the talking dog, celebrated the 17th anniversary of his blog last week. I first met the dog when he was doing interviews of lawyers who represented men at Guantanamo. You can read his interview of me here. If you look on the left hand side of his blog you will see the complete roster of all the individuals that the dog has interviewed-- not just the gitmo lawyers but others involved in Gitmo related happenings.

My interview was in 2007. Since that time the dog and I have been friends. The dog has helped with my various supreme court petitions, appellate briefs and lots of other things inbetween. 

As the dog points out in his anniversary post...these have not been fun times... but hard times are easier with friends. And hope does die last.

Read the dog's anniversary post here .

Lest we forget...9-12-1977

9-11-2018

As I do every 9-11 I turn this post over to my friend the talking dog who was actually in New York City on that day.
Because of technical problems you will need to click on the link below.
Perhaps tomorrow this will be fixed.
Perhaps not.

http://www.thetalkingdog.com/archives2/001932.html

Kavanaugh (Continued...)

My concerns about Kavanaugh go beyond what I have read about him -- I have appeared before him. It was not a pleasant experience.

After losing my client's habeas case -- following a "hearing" that was not only a farce but also a shameful display of shenanigans by the attorneys handling the case from the department of "justice." As I have mentioned more than once, having been an attorney for 35 years I have gone up against the best lawyers and the worst. The attorneys that I was up against in Razak Ali's case were amongst the worst I ever dealt with.... but I digress.

I filed the appeal and had some battles early on with the panel assigned to Mr. Ali's case which were disturbing. One of those battles involved  exculpatory documents (those are documents that are helpful to my client) that were withheld by the "justice" department until after the hearing was over. These were not just exculpatory.. they went to the very heart of my client's right to have habeas granted. The government claimed, disingenuously I might add, that they forgot to provide the document -- that the document was classified at the highest secret classification level -- and they therefore did not think that I should be able to see the document anyway... The government attorneys finally remembered this important document right about the time the judge was ready to enter his order (denying habeas). Unbeknownst to me the government attorneys and the judge met and talked about this issue several times after one of the attorneys privately told the judge about the mishap.  When the judge and the government figured out how they would proceed I was informed of all of this. (Kafka would have been proud.)

The judge announced that the government would still not agree to let me see the document and so the judge decided he would not look at the document either.The document was in regards to the government's main "witness" against my client (a fellow detaineed who had been brutally tortured by my government and in statements made by him under torture identified my client as having been in Afghanistan-- a place my client had never been until taken there by the military -- I guess I should also mention that the photo used by the military to get this tortured individual to identify my client was not actually a photo of my client...sigh.)  The judge, who didn't care that the government could come up with an accurate photo of my client, said he would disregard any evidence that came from that particular"witness."

The problem was the whole 5 day "hearing" was about the credibility of this one witness. The judge never did get a handle on that fact and I had to file 3 or 4 post hearing motions to get evidence that came from this individual out of the judge's opinion-- leaving my client's habeas denial down to the only "evidence" against my client -- that he was in a guesthouse where another guest was staying who was wanted by my government.

My appellate panel announced that they wanted to review that document and I fought like hell to keep them from reviewing a document on appeal that neither the judge below nor I had ever seen. They finally relented. I am guessing it was at that time that I learned that I had Kavanaugh on my panel. The only thing that I knew about Kavanaugh at the time was that he probably had lied to the Senate at his confirmation hearing about his role in Guantanao issues while at the white house. So I did what any rightous and hard working attorney would do -- I moved to recuse him. Less than 24 hours later my motion was denied without comment.

At the oral argument I watched this smug judge sit there and glare at me knowing that nothing I said about this case would matter. He is and was a rubberstamp to the Bush administration and that is what he will be to the republican agenda if he makes it to our highest court. I wrote to the judiciary committee this week and sent copies of everything to that committee. Since Mr. Ali's case is again working its way up to the Supreme Court I feel pretty confident that even this judge would have to recuse himself from hearing his case should we be so unfortunate as to have him sitting on that Court but regardless -- he should not sit on that court.

There is alot more I could say about this but that will have to wait for another day.

My good friend the talking dog has posted my letter to the judiciary committe (and the motion to recuse) on his website and you  can read it here.