Burying the Bush-era scandals
Monday, August 16, 2010
Justinian in Roger Fitch Esq, War crimes

Bush hacks  winning the war of attrition as Democrats bail out of the DoJ ... Khadr case shaping-up to set a dangerous precedent - it's a war crime to shoot at an American soldier ... Roger Fitch reports from Washington 

Ever wonder where the FBI gets the authority to arrest and abduct criminal fugitives overseas without formal extradition procedures, and do so with impunity? 

It's all in a convenient Office of Legal Counsel opinion cooked up by Poppy Bush's Attorney General in 1989 and just released by his son's speechwriter.

The OLC advice predictably opines that alleged constitutional prerogatives of the executive override local and international laws and insulate the FBI from liability for its law-breaking - a terrific precedent for the OLC opinions of John Yoo and Jay Bybee a dozen years later.

Although it's technically feasible to prosecute lawyers for wilfully dishonest opinions promoting torture, Professor Yoo and Judge Bybee may soon be able to breathe easy: the torture they authorised is subject to an eight-year statute of limitations.

It was August 1, 2002, when the two Justice Department lawyers signed their names to the torture memos.

A cynic might wonder if the Obama administration has been obstructing and delaying any investigation of torture, just to run out the statute.

Georgetown law prof David Cole comments on the present state of affairs.

It would be consistent with other delaying tactics of a Democrat president who seems to be playing for the other team. 

The ACLU, in fact, has a new report on Obama's "New Normal" national security policies, that build on those of Bush.

Jurist has more.


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Consider, also, Mr Obama's policy on judicial appointments.

The president has been content to leave selected courts of appeals - e.g. DC and the 4th - in Republican hands, perhaps because the Bush project to remodel the Constitution and remove restraints on the executive spawned important cases still wending their way through the system: civil torture suits, detention without trial, state secrets and more. 

Extralegal presidential powers have been delightfully enhanced in the process.

Even the constitutional right to habeas has been thwarted.

Despite five Guantánamo reversals in the Supreme Court, DC circuit judge and Republican warhorse A. Raymond Randolph has done it again. 

His creative spin on the high court's Munaf decision renders Boumediene, decided the same day, all but meaningless.

The government has won almost all of its "national security" cases before Republican-dominated appeals panels in Washington.

Kagan: won't sit on cases she argued as SGNow, thanks to the brilliant stratagem of making Elena Kagan solicitor general prior to her promotion to the Supreme Court, President Obama needn't fear high court reversals of these gratifying precedents.

Why? As SG, Elena Kagan represented the government in the cases, but as Justice Kagan, she will recuse, as did Thurgood Marshall, the last SG to join the court. 

The court, deadlocked 4-4, will deny certiorari in the DC circuit appeals. 

Mr Obama may now safely push for the confirmation of liberal Democrats - the party's natural legal constituency - as appellate judges though, like other progressives, some will be hung out to dry if opposition develops. 

The American Constitution Society has a chart of 100 judicial vacancies.

Elena Kagan and a handful of other judges have now been confirmed. Few noticed, however, that one of these filled a vacancy that had lasted 16 years.

The newly confirmed judge for the 4th circuit, James Wynn Jr - an African-American state appeals judge from North Carolina - was first nominated by Bill Clinton in 1995, but his appointment was successfully blocked by Republicans till now (the seat stayed vacant as Democrats likewise obstructed George Bush's attempts to fill it).

Judge Wynn is a patient person. So is Justice Kagan, an unconfirmed Clinton nominee for the DC circuit.


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It's hard to imagine Republicans in office, covering up the crimes of a previous Democrat administration, even if they wished to profit from the criminal foundations laid by their predecessors, or agreed with their perverse principles.

Yet the Obama administration, nominally Democrat, has squandered every chance to profit politically - before the November elections - from the outrageously illegal behaviour of the Bush regime.

The first missed opportunity was the lawless farce of Guantánamo detentions and sham trials.

Initially the commissions were dropped, but they continue.  There followed the acceptance of past torture, with no action taken against unrepentant participants - eg, Dick Cheney - practically begging to be prosecuted. 

Now, the signature political scandal of the Bush administration, the politicising of the Justice Department's public prosecutors - the US Attorneys - has been buried in a review conducted by legacy Bush lawyers still working at Justice.

Scott Horton called it "another audacious whitewash".

Perhaps it was not a complete surprise, however: Democrats who were victims of selective prosecution under Bush have already seen their appeals opposed, and Republican prosecutors who framed them have been left in office by Obama.

Johnsen: disownedThe neutrality and probity of the Bush-appointed prosecutor who made the decision to drop the enquiry are now in question.

Meanwhile, DoJ hacks and Bush holdovers may be winning a war of attrition, as disillusioned Democrats bail out.

The latest departures are from the Office of Legal Counsel, where David Barron and Marty Lederman, top liberal Democrat lawyers recruited by the now-disowned nominee for OLC head, Dawn Johnsen, are leaving.


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Canadian Omar Khadr lost his bid to have a court stop his unprecedented military commission for the "crime" of killing a US soldier, but his "war crimes trial" was dramatically adjourned when his appointed military counsel collapsed in court.

The trial, to be resumed later, marks a first in the history of warfare: murder charges against the vanquished for self-defence in battle.

A previous judge who made a number of rulings favourable to Khadr was summarily removed and retired.  Such judicial independence is unlikely this time.

EviatarAll "confessions", even those following an interrogation of the 15-year old as he lay gravely wounded on a stretcher (he was shot twice in the back, hors de combat, once a war crime), have been ruled admissible.

As Human Rights First observer Daphne Eviatar ominously reported at the end of day one

"Judge [Patrick] Parrish ruled that he is accepting the government's statement of the laws of war, which defines the killing of a uniformed soldier as a war crime. Never mind that killing the other side's soldier in a war has never before been considered or prosecuted as a violation of the laws of war."

It's been a long-cherished goal of the Pentagon to make it illegal to resist US troops in a war. With the trial of Omar Khadr, that fantastic objective could actually be attained. 

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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