Habeas WIN (not my client!) UPDATED

 Federal Judge Mehta has granted the great writ in Asadullah Haroon Gul’s case. All of the details are still classified and we will wait with baited breath to see whether Biden will do the right thing and honor the Court's decision and set Mr. Gul free -- or do as his predecessors have done and fight and appeal. But for now it is a win and for that we are all happy. One of the snags in Mr. GUl's case is that he is Afghani and it is uncertain how he could be returned to his homeland. You can read more about Mr. Gul and his case here.

And for more discussion on what this case means and what could come next read this.

From Roger Fitch and our friends down under at Justinian

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Blowback from the "war on terror" of the early 2000s still affects the supreme court docket: one of the first cases argued in the court's new October term was that of Abu Zubaydah, the long-suffering, much-abused Guantánamo internee. 

Zubaydah's detention and mistreatment was one of the earliest emanations of that time when George Bush, aided and abetted by congress, effectively blew up the rule of law, and consequently, federal criminal (and sometimes civil) justice: not just through torture, but in the torture cover-up, repeatedly claiming, in shameless bad faith, the so-called state secrets privilege. 

The Zubaydah case, now in the supreme court, directly confronts the question, how does the privilege apply when the "state secret" - the fact that Poland assisted CIA torture - is not a secret at all. 

The Poles themselves have already acknowledged their participation and even paid damages to Zubaydah, in the European Court of Human Rights; however, they haven't gone so far as to give tours of the former US torture facilities, as the Taliban are doing in Afghanistan.

An amicus brief filed by the Bureau of Investigative Journalism demonstrates why the case does not in fact involve state secrets, more here, oral argument here. 

Although the justices appeared unlikely to rule in Zubaydah's favour on the state secrets issue, they seemed genuinely astonished that the prisoner's habeas petition had not been acted upon since 2008. 

The court will also hear another "state secrets" case this term, involving FBI surveillance.

Nine important cases are already on the supreme court's docket for the October term, including a case in which, surprisingly, public defenders joined the enemy gun camp in opposing New York's concealed-gun regulations. 

Berkeley law dean Erwin Chemerinsky has a preview of the supreme court's term, and a new book warning of the right-wing court's ominous agenda; the Nation's Ely Mystal, a Harvard lawyer, also paints a bleak view of the likely regressive direction of the court's new conservative supermajority. 

Berkeley's Chemerinsky: court's ominous agenda

In its recent recess orders overturning Biden administration executive orders, so at variance with the court's deferential treatment of Trump's orders, the majority seems to be siding with Republican party policy, issuing transparently partisan decisions; so far, the court has favoured Trump executive orders 28 times compared to zero for Biden. More here. 

If these shadow docket decisions are any indication, Donald Trump's ideological judicial appointments portend a partisan court that will be anti-progressive, anti-regulatory and pro-corporate, a rubber stamp for Republican causes and initiatives that will last for years.

The court has also weaponised lower court orders of Trump-appointed judges, as in the case of states' meddling in immigration, here and here. The district court judges, both sitting in Texas, ruled in response to red border states who oppose the Biden administration's immigration policies, policies heretofore considered exclusively within the purview of the federal government.

This latest supreme court mischief has only increased calls for judicial reforms, including additional members for the court.

READ THE REST OF FITCH HERE...

Abu Z at the Supreme Court...

 My friend the Talking Dog has posted about the oral argument at the supreme court last week.

... here is an excerpt.. 

All of which is a long-winded explanation for my fascination with the Supreme Court’s taking up this issue now, at a time when the Biden Administration (like the Obama Administration, and for that matter, Dubya’s Administration) was committed to closing GTMO “if it could.” We will doubtless pass 20 years of GTMO when the decision comes down. Will the Court actually follow the law, and, for example, conclude that holding prisoners of war from the Afghan conflict, at least those who aren’t charged with war crimes, is illegal, now that the Afghan war is finally over? Will the Court find that state secrets does not apply when something is no longer secret nor an actual matter of national security? Let’s just say that my knowledge of the subject tells me that this isn’t how you bet. This Supreme Court, one third of whom was appointed by Donald Trump, might just want to keep the GTMO/Muslim prisoner demonstration project alive and well, in case someone like Trump (or perhaps Trump himself) decides to rev it up again for use against whatever enemies of the state happen to need disappearing.

READ THE WHOLE THING HERE....

wrongful conviction day continued

 No wrongful conviction day would be complete without this song....

Wrongful Conviction Day

 That is the thing, right. There are the wrongly convicted. We have thousands here in the U S of A. I represent a few of them- but there are not enough attorneys with the time and inclination to handle these cases - and so the wrongly convicted sit in prison - trying on there own to represent themselves. But our system is to complicated for them to be successful.

But then there are the Guantanamo prisoners. They are not wrongly convicted because they have not been convicted of anything. The vast majority have never even been charged with any criminal act. 

This is really fucked up.

Happy Belated Birthday --- Talking Dog!

 I just wasn't paying attention and just like that the 20th birthday of The Talking Dog blog passed me by. I met The Dog several years ago when he interviewed me about my Guantanamo work. Since then we have become good friends. The Dog has helped proof read many of my filings over the years and our families have become friends as well.

Twenty years with a blog is an important milestone - not many blogs out there that can meet that. The Dog's website evolved into a discourse on Guantanamo and the people involved in the litigation. It needs to be saved as a piece of history and I am very pleased that The Dog has managed to salvage the entire blog after a hassle with the previous holder of the blog.

Read The Dog's 20th anniversary post here.

From Roger Fitch and his friends down under at Justinian...

 Historians will rightly blame George Bush for many domestic effects that remained, e.g, an armaments industry in overdrive and a security state. 

Above all, there is a re-jigged justice system that has sanctioned the prosecution of combatants and militarised civilian crimes, epitomised by the extrajudicial detention at Guantánamo and "trials" in its kangaroo courts. 

Astonishingly, liberal democracies like Australia and Canada (and briefly, Britain and Germany) allowed their citizens to be caught up in proceedings that violated their own laws as well as American and international law. 

Zbigniew Brzezinski: father of the Afghan folly

Opportunistic, malleable, incompetent or merely dishonest, bad lawyers were at the heart of the Bush Administration's derailment of law. John Yoo, Jay Bybee, Patrick Philbin, Robert Delahunty, Timothy Flanigan, Daniel Levin, Steven Bradbury, Jim Haynes and Alberto Gonzales joined in memos that ignored the Torture and Geneva Conventions, "authorising" practices that first-year law students would recognise as illegal. 

"National Security" brought such things before. Although it's disputed, the law professor Scott Horton believes Bush's lawyers were as culpable as Hitler's Night and Fog lawyers, tried at Nuremberg in the Altstoetter case:

"Justice Department lawyers were ... charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht-und-Nebel [decree]. The United States charged that as lawyers ... they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were 'recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war' ... the two principal Justice Department lawyers ... were convicted and sentenced to ten years' imprisonment ...This judgment clearly established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom."  

*   *   *

While Karen Greenberg has lamented the overall damage to America's rule of law caused by the 20-year "War on Terror", others are turning their attention to righting particular terror-war wrongs, e.g, Guantánamo, its inmates and former inhabitants, and the treatment of Detainee 001, John Walker Lindt.  

Among those speaking out have been human rights lawyers, prisoner advocates and members of the Guantanamo Bar. They point out that, following the end of hostilities in Afghanistan, there's little legal basis for military detention of "law of war" prisoners, not charged with war crimes. 

Many were non-combatants, seized outside Afghanistan, and only five percent were captured by US soldiers on the battlefield. All were presumed by George Bush to be unlawful fighters, fictional "enemy combatants".

Those who were in fact belligerents were often lawful ones, e.g, the five Taliban (see below) freed by Obama in a prisoner swap in 2014. 

They were fully entitled to the protections of the Geneva Conventions that the Pentagon had scrupulously provided in previous wars, e.g, PoW status hearings required under the Geneva Conventions and the US Code of Military Justice. The Vietcong received these, why not the Taliban? 

Instead, officials trying to follow the law were bullied, sacked or re-assigned (see Fitch here). 

Al Jazeera and the Times have more on the sordid history and present state of the Guantánamo project.

READ THE WHOLE FITCH HERE.

Lest we forget....

 And now for my usual September 12th posting.  Stephen Biko was murder on September 12, 1977.

20 years. so much has changed and not for the better.

 I don't normally post on 9-11 and since I missed it I am staying true to form. I have a few comments and then I will do what I always do on 9-11 (when I don't miss it) and that is to turn this over to my good friend the talking dog- who was in NYC at the time of the attack and very close to the scene at the towers.

But first, let me just say that 9-11 brought out the worst in my country. Yes, we were attacked and it was horrible and sad. But our response was dismal. We threw away our constitution, we threw away whatever good will could have come our way if we acted with restraint and compassion. Instead we unleased a 20 year war, killing hundreds of thousands of innocent people and locking up mostly innocent Muslim men so that we could claim we caught bad guys. And we knew very early on that the vast majority of those men were not terrorists but our government had to keep up the charade. We as a country did not care and things have only gotten worse. Just like having that monster trump in charge during the pandemic - we had different monsters for our 9-11 emergency- W and Cheney during our 9-11 emergency. Bad actors in charge during difficult times is not a recipe for hope. we have blown it big time and now we must wait and see if we can right the course.

So let us see what our friend the talking dog has to say--

Welcome 2 America

 

From Roger Fitch and Our Friends Down under at Justinian

Struggling out of the quagmire

ROGER FITCH ESQ • THURSDAY, AUGUST 12, 2021

The Roberts Supreme Court Court and its obstructions ... Gerrymanders could see the Republicans take back the House ... Members of the "sedition caucus" to testify before January 6 committee ... Big money behind the claims of election fraud ... Trouble ahead for Trump lawyers ... Roger Fitch, Our Man in Washington, reports 

An "impulsive, mentally unstable and unbalanced individual who suffers from an inferiority complex" -  psychological assessment of Donald Trump provided to Vladimir Putin in January 2015.

"Rating Outlook is Negative ... The failure of the former president to concede the election and the events surrounding the certification of the results of the presidential election in Congress in January, have no recent parallels in other very highly rated sovereigns. The redrafting of election laws in some states could weaken the political system, increasing divergence between votes cast and party representation. These developments underline an ongoing risk of … difficulty in formulating policy and passing laws in Congress…" - Fitch Ratings, July 2021.

 *   *   *

As expected, senate Republicans filibustered the Democrats' signature voting rights act for the usual (racist) reasons, and because of their well-founded expectation that stonewalling reforms will produce enduring one-party government at the next election.

If only the Democrats could carve out an exception for the filibuster, limited to constitutional issues, but that's difficult, due to rats in Democrat ranks. 

Filibusters aside, Biden and his party - with the vice-president's vote - have a working majority in the upper house, but they suffer from two backsliders, West Virginia's plutocrat senator Joe Manchin, and the slippery Kyrsten Sinema of Arizona. Sinema is so conservative that an Arizona Republic writer queried why she hasn't joined the Republican Party.

Senate Democrats have additional ideas for getting voting laws through the upper house, but a determined and mischievous conservative majority on the supreme court might still strike down new voting rights laws. 

Since the ascension of Chief Justice John Roberts, the decisions of the court's right-wing majority have increasingly aligned with the agenda of the Republicans who appointed them, in "total war" on congress, evident in Brnovich v DNC, the latest judicial attack on voting rights in the supreme court. 

There's a new book out on the groundwork that the Roberts Court laid for the current Republican assault on voting rights - obstructed throughout American history by the  court - and a vast suite of civil rights laws. A Progressive writer has a damning list of the worst decisions of the Roberts Court since the chief justice's appointment in 2005. 

The supreme court has been blessing gerrymanders since at least the notorious "second" decennial Texas redistricting of 2003 (heard and decided by the court in 2006). 

That was preceded by a Texas Democrat walkout, a tactic deployed again this year. It's a shame Obama didn't act in January 2009 - the last time  Democrats had a filibuster-proof congress - to pass laws preventing such shocking gerrymanders as that of Texas in 2003. 

Now Republicans are on the brink of retaking the house of representatives through gerrymanders that the supreme court effectively approved. Only four Republican-controlled southern states are needed to do it. One hopes that Biden's AG will meanwhile vigorously enforce existing laws abandoned by Trump's AG.

The only place safe for voting rights legislation now is in the state houses, where a newly-blue Virginia has gone from nearly worst, to one of the best.

READ THE REST HERE.

Update from detainee Nasser who was released to Morrocco and is now home with family

 

"I was born again on July 19. My birthday is no longer March 4. I was born yesterday on July 19." Nasser added, "I have no words to describe my overwhelming sense of happiness and joy. It is like a miracle after 20 years to be home and celebrate Eid together with my family. I want to thank everyone, all the people who worked very hard and spared no efforts to make this possible."

Abdul Latif Nasser prior to his capture (on the left), and, in the center and on the right, during his 19-year imprisonment without charge or trial at Guantánamo. Image via his lawyers at Reprieve. More on his case is available in the NPR podcast The Other Latif by Radiolab.

h/o to world can't wait for the quote and photos.

Detainee transferred to his homeland- Morrocco

 It has been years many since I have been able to report a detainee being transferred. Congrat's to fellow Chicago attorney Tom Durkin who has worked long and hard on Mr. Nasser's case. And big congrats to Mr. Nasser. I am sorry to report that his sister recently died - she worked so very hard on his release.

Read more here.

But...

 As per the ealier blog post from today the Biden administration is inching towards closure of Guantanamo with its proposed military budget. However, in a filing on friday the government missed its best opportunity to have the place closed forever. The brief failed to even address the main issue- Does the due process clause apply to the men at Guantanamo. This of course is frustrating but not surprising. Several of the attorneys who have been working on Guantanamo from the justice department have been there since the Bush days. This of course is one of my many complaints about Obama -- he left all the Bushies in place. 

Anyway, you can read more here.

inching towards closure...

 tiny steps but steps...

House panel advances $706 billion Pentagon bill: The House Appropriations Committee on Tuesday voted to advance a $706 billion Pentagon spending bill to the House floor. Combined with a separate military construction spending bill, the committee’s bill closely follows President Biden’s request for a $715 billion Defense Department budget in 2022. The bill seeks to close the Guantánamo Bay detention facility by prohibiting funds from being used to operate the prison after September 30, 2022, and would block funds from being used to support or facilitate offensive military operations conducted by the Saudi Arabia-led coalition in Yemen. The Appropriations Committee also rejected an amendment from Representative Mario Díaz-Balart (R-FL) to add language blocking transfers of detainees from Guantánamo to facilities in the United States, a provision that has been law for years but was dropped from the panel’s bill this year. The panel also approved a pair of amendments from Representative Barbara Lee (D-CA) to repeal the 2001 and 2002 authorizations for the use of military force approved following the 9/11 terrorist attacks. The Hill

h/o to Eric