93-7

what a fucking mess.  Emptywheel has more here.

From Roger Fitch and our friends down under at Justinian

Land of the brave

Monday, November 21, 2011
Justinian in Roger Fitch Esq

Former general counsel of the CIA under investigation over drone attack "murder" remark ... War crimes don't need a war (apparently) ... Novel offences likely to remain on the books ... Ideological Republican circuit judges flout the Supreme Court ... Our Man in Washington reports  

"Aside from the humanitarian aspects, it is well known that, under excruciating torture, a prisoner will admit almost any suggested crime. Such confessions are, of course, not admissible in trials in civilized nations... Some of our leaders have found that it is easy to forgo human rights for those who are considered to be subhuman, or 'enemy combatants'." 

  Jimmy Carter, the last American president moderately attached to human rights

Click here to continue....

Military commissions are nothing more than second-class "justice" for non-citizens

JAPANESE AMERICAN CITIZENS LEAGUE AND ASIAN AMERICAN LEGAL GROUPS FILE AMICUS APPEAL IN HAMDAN CASE TO D.C. CIRCUIT

Charges that Military Commissions are an Unconstitutional Second-Class System of Criminal Justice for Non-Citizens

A number of Japanese and Asian groups have filed an amicus brief in the U.S. Court of Appeals, Washington, D.C. in United States v. Hamdan, charging that Congress has created a second-class system of criminal justice for non-citizens through its much-maligned military commissions.

The brief was filed by the Japanese American Citizens League, Asian American Legal Defense and Education Fund, National Asian Pacific American Bar Association, and the Asian Law Caucus, and was authored by law professors Jonathan Hafetz and Jenny Carroll of Seton Hall University School of Law, lawyers from Gibbons P.C., Lawrence S. Lustberg and Jonathan Manes, and Professor David Cole of the Georgetown University Law Center.

The brief charges that a system of criminal adjudication, such as the military commissions, which discriminates based upon citizenship, violates the Equal Protection Clause of the Constitution. The brief places the commissions within the context of a legally dubious and at times shameful history of discrimination against non-citizens, including the internment of more than one hundred thousand Japanese-Americans during World War II, for which the United States government ultimately paid monetary reparations and issued an apology.

Seton Hall University School of Law Professor Jonathan Hafetz, co-author of the brief, stated, “The Court has a chance in this case to reaffirm the rule of law and put an end to an ad hoc system of adjudication—unequal and unconscionable—which undermines the principles for which this country and its Constitution stand.”

The appellant, Salim Hamdan, was the subject of the landmark 2006 Supreme Court decision, Hamdan v. Rumsfeld, in which the Court ruled that the military commissions as constituted were illegal because, among other things, they did not meet the minimum standards of fairness required by the Geneva Conventions. Although since revised, the military commissions still afford fewer procedural protections and fair trial guarantees than either U.S. federal court trials or military courts-martial. U.S. citizens are not tried by military commission, thereby setting up an unconstitutional two-tiered system. This new appeal will be the first time a federal court decides whether the new commissions are legal. After the Supreme Court’s decision, Hamdan himself was recharged under a revised Military Commission scheme and found guilty of one count of providing material support to a terrorist organization, but was not found guilty of supporting any specific terrorist plot or act. He was sentenced to 5 months beyond the 61 months he had already served at Guantánamo. Hamdan has since finished serving his sentence and returned home to Yemen, but continues to appeal the legality of his trial and conviction.

Brief co-author Jonathan Manes, a John J. Gibbons Fellow in Public Interest in Constitutional Law, Gibbons P.C., noted, “After the Supreme Court found the military commissions to be unconstitutional, Congress tried to revise them but failed to address critical deficiencies, so that they continue to target noncitizens for inferior treatment. The courts must now intervene to correct this fundamental flaw."

Seton Hall Law Professor and brief co-author Jenny Carroll agreed, stating: “Creating a process that treats citizens differently from non-citizens not only cuts against the Constitution's core promise of due process for all, but undercuts fundamental fairness and justice. You need only consider “separate but equal” and the Japanese internment policies to know that, if nothing else, the Constitution demands that our system of  justice be fair and that it apply equally to us all— not just a select few.”

Click here for a copy of the Amicus brief or visit http://law.shu.edu/ProgramsCenters/PublicIntGovServ/policyresearch/loader.cfm?csModule=security/getfile&pageid=248939

Contact your senators now.....

Provisions in the Defense Authorization bill would make it even harder..to close Guantanamo and send the men home who are not going to face trial.
Senator Udall has proposed an amendment which is pretty much the best we can do. This is summary of Udall's amendment No. 1107:

Here’s a summary of the Udall Amendment:

The amendment by Senator Mark Udall would strike all of the detention provisions from the Defense Authorization bill and, in their place, mandate a process for Congress to use an orderly process to consider whether any detention legislation is needed.  Under the Udall amendment, the Administration would have 90 days to report to Congress on its detention authority and any deficiencies, and Congress would have 45 days to hold hearings and another 45 days to report out any needed legislation.  Instead of the rushed and confused process that has created the current convoluted and harmful bill, Congress would follow regular order and carefully review the issue.   This is the type of approach (even if it may be opposed by sponsors of the NDAA, who don’t want the detention provisions stripped at all) that should be able to draw wide support even from Senators who may be on the fence about the merits of the issues. 

The consensus of those opposing the detainee provisions of the Defense Authorization bill is that the best course now is to throw all effort into urging Senators to support the Udall Amendment, rather than seeking tweaks to the language of any of the detainee provisions.  If you get any feedback from the Senators’ offices re where they stand on the Udall Amendment, please shoot me an e-mail to let me know so I can pass it on to those working on this.

If you make calls, you might also urge the Senators to vote against an amendment offered by Susan Collins (we don’t have the Amendment #) that would make permanent some of the onerous transfer restrictions.   

Life in the kennel at Guantanamo

T/h to Jason Leopold at Truthout who has more on the Pentagaon's propaganda here.

Former Gitmo military commission chief prosecutor Davis speaks out

Moe Davis was the Chief Prosecutor for the military at Guantanamo under the Bush administration-until he wasn't. Moe, who was once a fan of the commission process, changed his mind about the process after witnessing first hand the political shenanigans going on behind the scenes. Since resigning from the position in October 2007 Moe has  spoken out against the commission process on numerous occasions. In an interview with Truthout Moe points the finger at the current problem----our president. As Moe explains- "a pair of testicles fell off the president after election day." Although I agree with Moe that the president definitely didn't have the testicles after election day-having viewed him as my senator prior to his becoming president I wonder if he ever did....
Click on the link and read the whole article

Good news from North of the Boarder

These things happen to rogue nations.....like the US.
Now if we could just get his little brother out of Guantanamo and up there.
t/h the talking dog

Rules for conducting military commission tribunals....

The only thing that surprises me is that they didn't wait until the hearings are over to promulgate the rules....
here they are.
You see, in  a proceeding that resembles due process the rules are not put forth two days before things get started....but then there is nothing that resembles due process in the military commission so this really comes as no surprise.
And as Emptywheel points out...they don't even attempt to make the rules look professional.
Of thee I sing.....

public service announcement

I rarely go off topic but today is one of those rare days...click on the link for easy instructions on how to do your part (if you can't go out and join the crowds...or even if you can) for the occupy wallstreet movement. If everyone did this everyday we would send a message that would costs the banksters a few cents along the way:

http://thegallopingbeaver.blogspot.com/2011/11/99-action-from-home.html

DRY BOARDING- A NEW EXPLANATION FOR THE SO-CALLED SUICIDES AT GUANTANAMO--UPDATED

A new article at truthout by Almerindo Ojeda of the Guantanamo Tesimonials Project offers a possible (and disturbing) explanation for the three men who died at Guantanamo in 2006. Almerindo takes a look at what we know about the three deaths and compares it to what we know about the torture of Ali Al-Marri- a man from Qatar who came to the United States on a student visa in 2001. There are a lot of similarities and many of the questionable holes left in the militaries version fit nicely into the theory that the three men were tortured to death in a technique that is referred to as "dry boarding."

Click on the title to read the whole story.
Scott Horton at Harpers- who wrote a groundbreaking story about the deaths of these men a few months back has written about Almerindo's article here.

THE DOJ UNDER GW OBAMA

I have explained to people when giving speeches about Guantanamo that the Department of "justice" under Obama is actually quite a bit worse than it was under Bush. An example of this is found in the latest article at truthout by Jason Leopold regarding Abu Zubaydah. I could try to summarize what this is all about but I think it is better if you just read the article....

what a concept.... (updated...yet again)

Only in the new U. S. of A. could this be an issue, the next man at Guantanamo who is set to have his case heard at a military commission is asking the judge to let him know if he will be released if the jury acquits him. You can read more about this odd question here. The bottom line is that in the kangaroo court also known as the military commission there is no guarantee of release if you are found not guilty. It begs the question, why go through the theatrics if nothing is going to change?

Stay tuned for the answer.....but don't hold your breath waiting.

Carol Rosenberg at the Miami Herald has more here

The military prosecution has now responded- they claim that the military commission can sentence a man to death but they cannot set a man free---and they argue that the military tribunal hearing the case should NOT be told that even if they acquit the man he will not be set free.

Sweet land of liberty......

Carol Rosenberg at the Miami Herald has the follow up here.

And Now We Are Assassinating American Kids....

I don't even have words to describe my disgust and anguish at our latest assassination by drone-

Jim White at Emptywheel has the story here and here.

From Roger Fitch and our Friends Down Under

Comforting the comfortable

Tuesday, October 18, 2011
Justinian in Alien Tort Statute, Citizens United, Donald Rumsfeld, Rendition, Roger Fitch Esq, Torture, US Supreme Court

Analysing the US Supremes most recent term - plenty of goodies for big business, nothing for plaintiff lawyers ... Alien Tort Statute up for a workout ... Torture cases batted around the circuit courts ... Rendition victims lose final appeal ... Our Man in Washington reports

The US Supreme Court sits again this month, but the 2010 term is still being analysed here and here.

Scotusblog has the term's statistics.

By general consensus, big business and conservatives scored well.

Some say the court is only interested in comforting the comfortable.

The court's hostility to litigation and plaintiffs' lawyers led notably to Wal-Mart v Dukes, a class-action killer and the most pro-business decision since Citizens United invented corporate free speech.

More here and here.

The decision in AT&T Mobility v Conception, an arbitration clause case, will have a devastating effect on consumer class litigation. Emptywheel has more.

A leading law dean, Erwin Chemerinsky at the University of California, and Dahlia Lithwick have more on the Roberts Court junta.

While some writers believe the Supreme Court killed class actions, others think the cause is not yet lost.

Click here for more from Fitch.........

The continuing saga of Zubaydah....

Remember Abu Zubaydah? If you have forgotten Jason Leopold at truthout has a sad reminder for you here.

Just to jog your memory- when Zubaydah was captured in Pakistan back in the spring of 2002 we were told he was the number 3 in al-Qaeda -so we water boarded him 100 times or so and subjected him to lots of other torture because that was the only way to save our country- however sometime thereafter we realized that he really wasn't number 3---or number 33 or even number 333. In fact, we realized he wasn't really a part of al-Qaeda after all. Oops on that one.

You might also recall that our torturers videotaped their handiwork but apparently after some higher ups took a gander at those tapes they decided no one else should see them and the tapes disappeared....we have been told that the tapes were destroyed (even though there was a court order to preserve the tapes). So as far as we know there are no longer any tapes depicting the torture that Abu Zubaydah and others were subjected.

However the tapes were not the only record of our misdeeds....Zubaydah of course remembered what happened to him and he drew pictures depicting his torture. As Jason tells us in the Truthout article the pictures are (or were) pretty detailed....but of course we will never see those drawings either- you see, if his drawings still even exist (the powers to be refuse to admit whether the drawings are still in existence) they are classified (wouldn't want those to get into the wrong hands would you?....I mean that could possibly make it harder for us to keep looking forward.....).

And so, Abu Zubaydah- the man who wasn't who we thought he was but who must be forever detained without charge because.....why is it again that he must be detained forever? Partly because being the most powerful country in the world we do not admit mistakes....maybe also so that Zubaydah cannot redraw those pictures?