The post-legal society
Wednesday, June 29, 2011
Justinian in Guantanamo, Habeas, Roger Fitch Esq, War crimes, material support

Reinventing the Constitution ... New war crime propped up by discredited 1818 case ... Pentagon stacks military commission review court ... Rogue circuit court circumvents habeas for Guantanameros ... CIA homicides investigated by grand jury ... Our Man in Washington reports 

George Bush's quest for a stripped-down, bare-bones constitution is progressing nicely under his nimble successor, Barack Obama. 

Evidently, the powers-that-be decided a smooth Democrat - a "constitutional law professor" - was best-equipped to carry out a project begun by clumsy Republicans and stalled by cautious courts.

The results so far have been impressive.

The 1st Amendment's guarantee of speech has been ingeniously reinterpreted, loosing rivers of corporate cash in public elections.

The 2nd (guns) has been turned 180 degrees and the 4th (search and seizure) is on the way out.  The 8th (excessive bail, cruel and inhuman punishment) is pretty much a dead letter.

Demolition of the 5th (due process) and 6th (speedy trials, impartial juries, right to confront witnesses) will be difficult and take longer, but hope springs eternal in America's governing class.

In fact, we already live in a post-legal society, according to a well-known internet scribe.

To prove it, the Republican House just passed a Bill requiring military detention for "terrorism suspects" who aren't citizens, and Senate Democrats went along with it.

Without civilian courts, there's no habeas

Is this a great country, or what?

*   *   *

The DC Court of Appeals seems to have already suspended habeas, at least for Guantanameros (see below), and the scholar Obama, ignoring legal advice, has pre-empted Congress's power to declare war by redefining "hostilities" (reaction here and here). 

Yet, to use the buzzword du jour, much still needs "overhauling" in the US constitution. 

An obvious example is the Article I, section 8 (10) power of Congress to "define and punish ... offenses against the law of nations," including the law of war.

This isn't good enough. Congress wants to design new war crimes, not define existing ones. As noted in my last post, the shiny new war crime of "material support for terrorism" has been pending before the Court of Military Commission Review.

Mr Obama abandoned the Bush Gang claims, that the newly-minted MST embodied Civil War concepts of "jayhawking" and "banditti".

Indeed, Obama's lawyers conceded no such war crime exists, but soldiered on when Congress re-enacted it.

Eventually, with three Gitmo guilty pleas for MST, government lawyers fronted the CMCR with a brand new argument: "terrorist supporters" are actually guilty of "aiding the enemy" - a real war crime - and cited the Arbuthnot case.

General Jackson: hanged an Englishman for aiding blacks and IndiansA new law review article is scathing in its criticism of the government's reliance on this discredited 1818 case, involving acts of Andrew Jackson now widely regarded as war crimes. 

This ad hoc proceeding was held on US-invaded territory, and convicted Britons - who owed no duty to the United States - of "aiding" the "enemy", i.e., blacks and Seminole Indians living in Spanish Florida.  

One of the men was hanged by General Jackson despite the jury's sentence of a year's hard labour. 

It's the single case the government could find to back a "material support" analogy.

No problem. On June 24, the Pentagon's rubberstamp CMCR seized on Arbuthnot and all the previously discarded arguments as well, in upholding Salim Hamdan's conviction.

In its opinion, the CMCR ignored the modern history of the law of war and its reception in customary US law, while finding new Congressional sources of power in the US constitution.  

Opinio Juris dissects the decision here

A little history is required here.

Hamdan's appeal was first heard by three judges in January 2010, but no decision was announced. Instead, one of the three retired and another recused when an en banc rehearing was announced (four other judges also recused).

The Pentagon then appointed six new judges, one of whom recused. 

The resulting handpicked panel of seven consisted of one judge from the January hearing, another panel judge and five new judges.

It was this panel which, sua sponte, sought briefing on "aiding the enemy."   

It looks and smells like a Pentagon do-over. 

*   *   *

Going boldly where the Supreme Court is too timid to go, the DC Circuit continues its degradation of evidentiary standards in order to uphold Guantánamo detentions.

David Remes: from Covington partner to Gitmo advocateThe circuit seems bent on preventing any Gitmo habeas from succeeding.

Lawfare has the current habeas scorecard, as well as Gitmo lawyer David Remes's assessment of the DC Circuit's continuing stonewall of Boumediene.

Lawfare's Ben Wittes reported the latest creative denials of Guantánamo habeas by the rogue DC Circuit, here and here

The conservative Wittes was startled by the court's judicial activism, with "guilt by guesthouse" now entrenched in circuit law. 

It's likely to stay that way, as the Supreme Court refuses to touch the toxic habeas law thrown up by the current terror-hysteria. 

*   *   *

Time reports that a grand jury in Virginia is investigating CIA homicides including the torture-death of several Iraqis and an Afghan.

When Obama's lawyers let the statutes of limitation expire for the previous administration's obstructions of justice and Torture Act violations, Bush Gang members seemed poised to escape punishment.

There's no statute of limitation, however, for torture (or war crimes) resulting in death.

The CIA Inspector General is meanwhile investigating the abduction of Khaled El-Masri by the CIA.

Khaled El-Masri: abducted by the CIAThese could be feints by the US following the European Parliament's resolution on American human rights violations and the need for the US to investigate them.

Past investigations by the US have been suspicious. The Virginia grand jury is under the guidance of the Bush regime's special prosecutor, John Durham, who ran out limitations and has so far declined to prosecute any of the crimes uncovered. 

*   *   *

The Supreme Court declined to hear Jeppesen Dataplan.

There will now be no consequences for the Boeing subsidiary that carried out gruesome torture renditions for the CIA and Pentagon.    

Boeing effectively obtained impunity for organising and providing "contract services" in which people were assaulted, abducted, falsely imprisoned and flown to torture by foreign governments - or by the CIA.

Boeing won because an evenly divided Supreme Court, unable to reverse the decision, declined to grant certiorari - all according to plan. 

As I noted last year (August 16), Obama shrewdly placed Elena Kagan in the Solicitor General position before appointing her to the court, in order to force her recusal, and reduce "liberal" votes, on pending "national security" appeals. 

Kagan has recused on cue, wildly enhancing executive powers for Mr Obama, and unfortunately, his successors, too.

The government now has carte blanche to use "state secrets" to conceal its crimes

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