America unhinged

Logjammed judicial vacancies give the Chamber of Commerce a field day ... Bradley Manning's incarceration ... Nine year Guantanamo internments roll on without a remedy ... Federal Court indictments handed back to the Pentagon ... The anarchy of the Tea Party ... Our Man in Washington reports

US federal judicial vacancies have reached crisis point. 

With over 90 vacancies halfway through Obama's term, the stakes couldn’t be higher for the Democrats.

The Republican-allied US Chamber of Commerce is already winning 70 percent of the cases it supports before the Roberts Supreme Court. Why? 

Business-supporting Republican judges are drawn from a defence bar basically hostile to litigation.

While the Republicans seek to place defence firm partisans on the bench, their Senate caucus has been outraged over Obama's nomination to a district court of a prominent plaintiff's attorney.

His offence? He vigorously litigated cases against tobacco companies and other Republican corporate constituents.

At the same time, Senate Republicans violently oppose the nomination of the outstanding 9^th circuit nominee Goodwin Liu.

His crime? He testified against the Republican operative Sam Alito at his 2006  Supreme Court confirmation hearings.

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Bradley Manning, the US soldier charged with leaking classified military material and State Department documents, is being held in punitive solitary confinement at the Quantico Marine Base in Virginia, and now is to be moved to Fort Leavenworth, Kansas. 

There has been an international outcry, and even Britain's Tory government has complained.

Mr Obama's former adviser on "rule of law" issues has called Manning's treatment unconstitutional, although the Scalia faction on the Supreme Court contends the Eighth Amendment's "cruel and unusual" clause doesn't apply to pre-trial confinement.

Now an influential group of academics, including some Australians, is protesting Manning's treatment in custody.

The reaction to Manning's treatment contrasts strangely with the muted response in the early days of the "war on terror", when the Bush Pentagon held spuriously-designated "enemy combatants" in far worse conditions at brigs in South Carolina and Virginia. 

José Padilla and Ali al-Marri are now serving terms in US prisons after civilian trials.  But both were held by the military for years without any legal authority.

Their abuse was more shocking than Manning's, and Padilla, an American, still has civil torture suits pending against US officials (see my last post).

The difference? Bradley Manning is a blue-eyed US soldier, and he's not a Muslim.

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The slow-motion, nine-year internments at Guantánamo roll on, without a remedy.

The latest Gitmo habeas statistics show the effect of circuit decisions that have crushed trial court independence.

In April the Supreme Court denied certiorari in three cases where the DC circuit's rulings seemed at variance with the court's 2008 Boumediene decision, but a ruling in the Chinese Uighur case, Kiyemba v Obama, was repeatedly deferred.

The denials were thought to indicate a 4-4 split on the court caused by the recusal of Justice Elena Kagan.  As solicitor-general, Kagan had been involved in the cases now on appeal.

As predicted (see post of August 2010), Obama's shrewdly devious appointment of Kagan has had the desired effect of kneecapping government opponents in "national security" appeals. 

There were late developments in Kiyemba, resulting in supplemental briefs, but in the end, the court denied certiorari.

However, conservative Justice Anthony Kennedy and liberal members of the court joined in an opinion by Justice Breyer that limited Kiyemba to the facts at hand, e.g. the refusal of the Uighurs to accept offers of resettlement in at least two countries:

"Under present circumstances, I see no government-imposed obstacle to petitioners' timely release and appropriate resettlement. Accordingly, I join in the court's denial of certiorari. Should circumstances materially change, however, petitioners may of course raise their original issue (or related issues) again in the lower courts and in this court." 

 The language is reminiscent of that of Justices Stevens and Kennedy in April 2007, when the court initially denied certiorari in the Boumediene case, a decision later reversed in the landmark decision that Guantánamo prisoners have a constitutional right to habeas. 

Is the court now "finished" with Gitmo?  Perhaps not. There will be further appeals where Justice Kagan can participate.

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In the case of Ahmed Ghailani, charged in the 1998 bombing of East African US embassies, the Bush administration flouted the jurisdiction of US federal court.

When Ghailani was captured, he was kept offshore and tortured despite his status as an indicted fugitive wanted in New York.

For a brief time - less than four months - the new president seemed inclined to repudiate some illegal acts of George Bush, and Ghailani was returned to New York, tried and convicted. 

At the same time, the military commissions of Khalid Sheikh Mohammed and the 9/11 defendants were superseded by an indictment in Manhattan.

KSM, like Ghailani, was already under indictment in New York - in a case brought by the Clinton administration. 

For a moment, it seemed the US would resume the rule of law. 

In the end, the bloodlust of Congress had to be sated by a military show trial in Cuba. 

In April, two years after the new US indictment, the New York federal court dismissed the case and the Justice Department handed it back to the Pentagon. 

More here and here. 

At Guantánamo, third-hand hearsay and evidence tainted by torture can be admitted. No unseemly questions about the years of unlawful detention will be asked. Death penalties are assured. What's not to like?

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Insanity has taken hold in statehouses controlled by the anarchic, Tea-Party strain of Republicanism.

In Wisconsin, the governor and legislature managed to end collective bargaining for state employees by passing a law in an irregular session and flouting court orders that followed.

In South Dakota and Nebraska, legislators proposed Bills making it justifiable homicide to kill medical abortion providers.

A Bill in Missouri would have repealed all child labour laws.

In Arizona and Texas, Republicans want university students who are armed and dangerous.

In Alaska, Republicans are worried about the imminent incorporation of Islamic law into US law.

In Tennessee they've gone further, with a Bill that could make Muslim foot-washing a felony.

And here's my favourite. If you want to run for President in Arizona you must have a US birth certificate - but a certificate of circumcision will suffice.

With such lunatic politicians being selected by special interest money, it's great to know the Supreme Court is poised to extend its Citizens United corporate free speech precedent to ban public financing of state elections - it hinders the free speech of the rich.