America's legal prostitution problem

Breaking the filibuster stranglehold on judicial appointments ... David Hicks appeal assisted by incompetence of military prosecutors ... 136 people identified as victims of CIA torture programs - claims popping-up everywhere ... Right to vote under attack ... Roger Fitch, Our Man in Washington, files 

THE Republicans have a majority in the House, despite getting a minority of the vote in last year's election.  

While the Democrats have a majority in the Senate, their opponents have been able to cripple government proposals through the use of the filibuster, the rule forcing a vote of 60 of the 100 Senators to bring a presidential appointment, or even legislation, to a vote.  

There have been 168 filibusters in history, 82 of them by Republicans against Obama nominees.

One of the most insidious uses of the filibuster has been to obstruct judicial appointments, a phenomenon traced to Richard Nixon. 

During the Bush administration, the Democrats used the filibuster to block some of George Bush's most egregiously political appellate judges, but a compromise resulted in a few shockers getting on the bench, e.g.Janice Rogers Brown.  

Brown's circuit, DC, is special. With several judges - most of them Republicans - taking senior status, the court is now closely divided. 

 Republicans are still more numerous, but senior judges, who continue to sit on panels, don't participate in en banc decisions.  

Republican Senators have sought to maintain their partisan control of the DC Circuit by obstructing Obama's latest appointments, and prevented all three from coming to a vote on the floor of the Senate.  

Brown: a DC Circuit shocker

This was unprecedented and the Democrats fought back, ending the 60 vote requirement for all nominations except the Supreme Court.  

The NY Times reckoned it was good for democracy, while the right-wing Washington Post saw it as a "naked power grab" by Democrats. 

A more Democrat DC Circuit means regulations previously blocked by the court have a brighter future.    

*   *   *

The digital dystopia grinds on. The inability of the US government to play fair internationally is having unintended consequences that could include the end of the US internet hegemony: now Germany, like Brazil, wants to control its own net.

The UN is also looking into violations of privacy on the internet. More here.

The US is resisting internet privacy with startling claims that:

1. The ICCPR -  International Covenant on Civil and Political Rights - doesn't apply to foreign espionage; and
2. HRL - international human rights law - doesn't apply to Americans outside the US.  

It seemed the right moment for a Guardian legal writer to comment on what Fitch calls a US "legal prostitution" problem: meretricious lawyers and academics prepared to construe international law uniquely for the US government.

There have now been document dumps of previously-classified FISA Court decisions by the Office of the Director of National Intelligence, and some of the opinions are highly critical of NSA surveillance practices.   

While the government voluntarily released the FISA Court opinions, it flouts FISA Court orders it finds uncongenial. 

*   *   *

Hicks: plea deal a nullity

David Hicks, now seeking to overturn his conviction by a Guantánamo military commission, must be grateful for the incompetence of his US military prosecutors.  

As part of his guilty plea, Hicks was compelled to sign a waiver of appeal, but the prosecutors failed to file it in the Court of Military Commission Review in 2007, and now it's a nullity (brief here).

The Center for Constitutional Rights has more.

Within days, the Canadian "convicted" in a similar plea deal, Omar Khadr, filed an appeal in the CMCR.

Mr Khadr was generously provided with a Pentagon lawyer, Sam Morison, who has published academic articles on the invalidity as war crimes of material support for terrorism and conspiracy. 

Khadr's appeal brief points out that - hello! - it's not a violation of the law of war for a combatant to throw a grenade or plant a mine that injures another combatant who happens to be American.

Unlike Hicks' case, however, there's a waiver of appeal on file, and the CMCR has seized on this to call for briefing on whether it can hear the case. 

Just Security, a new law blog offering a progressive antidote to the terror-hysteria of Lawfare, has reported on both appeals.  

*   *   *

If David Hicks succeeds, he could be in line for compensation from Australia for its role in the CIA's "Rendition, Detention and Interrogation" program. 

As for Omar Khadr, he has the precedent of the $10 million Canada paid to a rendered citizen, Maher Arar.

One hundred and thirty six people have been identified as victims in the CIA's RDI program, and the legal claims of some are wending their way through foreign and international courts now that US courts have denied them a remedy.  

European Court of Human Rights: busy with torture cases

The European Court of Human Rights previously rendered a judgment and fined Macedonia for its participation in CIA rendition and torture, in the El-Masri case.  

From December 3, there are proceedings in the ECHR concerning Poland's involvement in the CIA's detention and torture in that country of Abd al-Rahim al-Nashiri (background here).  

The charges are made more serious by Nashiri's transfer onwards via Romania (also being sued in the ECHR) to Guantanamo, where he faces a death penalty for sundry pre-war "war crimes."

Sweden has already been held accountable through UN bodies for its participation in CIA renditions, in Alzery v Sweden and Agiza v Sweden.

In the UK, proceedings are continuing in the UK High Court regarding the complicity of the British intelligence services in the abduction of the Libyan Abdel Hakim Belhaj and his pregnant wife.

The UK has already paid millions to another Libyan, and to Guantánamo detainees, including one still there.

In Gambia, the African Commission on Human and People's Rights is hearing the case of al-Asad v Djibouti, brought by the International Human Rights Clinic affiliated with NYU Law School.  

Cases are also pending against the US itself in the Inter-American Commission on Human Rights which, ironically, is based in Washington.

*   *   *

Republican-controlled states are systematically dismantling voting protections in the wake of Shelby County v Holder. 

 The Supreme Court's recent decision struck down a section of the Voting Rights Act  that had been re-enacted by Congress in 2006 by an overwhelming vote.   

The Atlantic thinks the remedy would be a constitutional right to vote, presently lacking.  

In other Tea Party-inspired mischief, ALEC, the special-interest group that drafts business-friendly legislation for states (see post of January 9, 2013), has now taken aim at sick-leave legislation.  

In the meantime, the US Chamber of Commerce wants to make foreign bribery legal.

You can't make this stuff up.