Straying from the rightful path
Tuesday, July 9, 2013
Justinian in Clarence Thomas, FISA, Military Commissions, NSA, Roger Fitch Esq, Torture, US Supreme Court, War crimes

Corporate mercenaries settle with Iraqi victims ... While Abu Ghraib contractor ducks liability for torture ... Corporates and conservatives generally pleased after Supreme Court's latest term ... British newspaper scoops US media on major security story ... Spying on attorneys at Gitmo ... Our Man in Washington, Roger Fitch, reports 

IT'S hard to find a case where the US has strayed further from fairness and the rule of law than that of Abd al-Rahim al-Nashiri, now on trial before a military commission at Guantánamo.

Nashiri was named as an (unindicted) co-conspirator in the NY trial of several men charged in the 2000 bombing of the US Cole in the Gulf of Aden yet, when captured in 2002, he was sent to Thailand for CIA torture rather than Manhattan.  

In 2006, George Bush decided to send some real terrorist suspects to Guantánamo, though apparently no one associated with war, the ostensible basis for Gitmo. Nashiri was among them.  

His torture, acknowledged by the CIA and documented by the ICRC, the CIA Inspector General and the Senate's still-secret report on CIA torture, would likely block any civilian trial in a US court.

It proved no bar, however, in the Pentagon's flexible military commissions, where he was charged with sundry "war crimes" occurring before there was any war, in a place - Yemen - at peace.

If there had been hostilities, the Cole would have been a valid military target.  

By contrast, fellow Guantánamero Ahmed Ghailani, accused of the 1998 US Embassy bombings in East Africa - another civilian terror attack - was successfully tried in US federal court.

No matter. Obama's lawyers charged Nashiri in a military commission.

In Nashiri, the Pentagon seeks a death penalty against a man its own mental health experts say suffers from PTSD; apparently, it's a result of CIA torture.  

While it wasn't the military that tortured him, torture - military included - has implicit impunity: every torture claim, arising from US adventures in Afghanistan or Iraq, and filed in an American court, has been ruthlessly extinguished (see below).  

Torture claims are continuing

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THE Supreme Court continues to distance itself from anything associated with George Bush's wars.  

On its last day, the court denied certiorari in the civil damages case of Vance v Rumsfeld.   

After Donald Vance was imprisoned and mistreated on the orders of former Defence Secretary Donald Rumsfeld, the Obama administration went to court to block any legal remedy in the US.  

A divided 7th Circuit en banc decision led to Vance's Supreme Court appeal

Precedent was against him: a 2009 DC Circuit case (also denied certiorari) found that at the time of Rumsfeld's actions, there was no clearly-established right not to be tortured while in military custody. Who knew?  

Abu Ghraib: contractors settle some claims, other thrown out

Nevertheless, in a recent development, one of two corporate mercenaries sued for the torture and abuse of detainees at Abu Ghraib, L-3 Services, agreed to settle with 71 Iraqi victims for over $US5 million.  

The other case, against the notorious Abu Ghraib contract interrogator CACI, was about to go to trial when the Kiobel case - interpreting the Alien Tort Statute - was decided (see May post). 

Immediately, the defence seized on Kiobel to have the ATS-based claims dismissed.

Federal judge Gerald Bruce Lee (Eastern District of Virginia) duly dismissed the claims in Al Shimari v CACI International , more here, based on his reading of Kiobel

More on the Al Shimari case here

In fact, the Kiobel rationale does not preclude ATS suits, given the US citizenship of the defendants and the fact that the case "touches and concerns" the US. 

More here.

Another ruling by Judge Lee, in Ameur v Gates, threw out the ATS claims of a former Guantánamo prisoner.  

*   *   *

Thomas: Former Monsanto lawyer sitting on Monsanto case

THE Supreme Court has ended its 2012 term, and Scotusblog has a statistical analysis of its decisions

There were many notable decisions, including an equivocal opinion in the pay-to-delay generic drug case

In American Express v Italian Colors, the Supreme Court continued its line of cases imposing arbitration on class action claimants. More here

Monsanto unanimously won its (Roundup-Ready seed) patent exhaustion case in the Supreme Court. Former Monsanto lawyer Clarence Thomas joined in. 

In another patent case, however, Justice Thomas announced that - contrary to a recent Australian decision - Myriad Genetics cannot patent a human gene that's a product of nature.  

More here and here

The Supreme Court has finally opined that actual innocence of a crime is important, after all. It was one of two cases in which the court sided with prisoners

Overall, conservatives and business groups have much to celebrate from the term just ended, comment here.  

Republicans are doing high fives after CJ John Roberts struck down the key provision in the Voting Rights Act

Justia columnist Marci Hamilton doesn't think the court's Shelby decision is such a big deal, but others disagree and more.   

Another last-week decision pleasing the Chamber of Commerce and alarming the plaintiff bar is Vance v Ball State University, which reduces employer liability for workplace harassment. 

Justia's Joanna Grossman considers the new supervisor standard invented by the majority.     

The "gay" decisions came out the last few days of the term, more here and here.

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NSA surveillance and data mining

THE Obama administration relies on a certain self-censorship by the Big Six US media oligopoly (see graphic), and lately it's been left to foreign newspapers to provide much of the investigative journalism Americans once took for granted.  

Even so, it was surprising to see Britain's Guardian declared off-limits to US military personnel following its disclosure of a secret order of the Foreign Intelligence Surveillance Court (FISA court) enabling warrantless surveillance of communications worldwide.

Big Media scrutiny of the NSA and its ex parte submissions to the FISA court is slowly improving, with reports about, e.g. the court's almost entirely Republican membership and its far-reaching secret decisions

It was left to the Guardian to reveal the FISA court's approval of the collection of US emails by NSA, now discontinued, and the US spying abroad that is causing particular outrage in Europe.

It's been great for encryption services, now used to thwart lawful government wiretaps as well as the less legal eavesdropping of the NSA.

The Army-banned Guardian is reporting that 26 Senators have written to the Director of National Intelligence objecting to the practices of the NSA.  

The NY Times famously learned about the Bush/NSA illegal spying in 2004, but suppressed its story until after the presidential election that year. The current scandal, however, is receiving immediate criticism. 

*   *   *

SETON Hall University Law School has a new study, Spying on Attorneys at GTMO (comment here). 

Lawyers face other problems than spying, e.g. the cancellation (since rescinded) of civilian flights to Cuba, genital searches (clients, not counsel) and general harassment (see here and here).

There are also convenient equipment lapses, e.g. the well-timed failure of a Pentagon computer server which caused the loss of Nashiri defence documents just before the hearing where they were needed. More here.

Luckily, it's only a death penalty case. 

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (
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