Congressional fallout

A Republican majority in the House likely to end in usual bout of resentment for the GOP ... Election threw up a few crooks and charlatans ... An American soldier can shoot in the battlefield, but it's a war crime if someone shoots back ... Review into whether charges against David Hicks were defective ... Wheels fell off Ghailani trial in Manhattan because the CIA tortured the accused ... Roger Fitch reports from Washington

"The trouble with most folks isn't so much their ignorance, as knowing so many things that ain't so." - Henry Wheeler Shaw, 19th century American humorist

The 2010 Congressional election results suggest American voters inhabit a parallel universe.

As in the 1994 mid-term sweep against Bill Clinton, the voters seemed to blame Democrats for legislative fiascos largely orchestrated by their Republican opponents.

One writer attributed it to a "bible-thumping white underclass" cynically exploited by corporate interests.

Whatever the reason, Republicans picked up even more seats than they did in 1994, 64 in all, although 23 of those defeated were "Blue Dog Democrats", who regularly vote Republican anyway. 

If history's any guide, the new Republican majority in the House will create "gridlock" by blocking government legislation, including budgets, while launching spurious investigations of alleged Democrat misconduct.

The script is familiar, and ends with public disenchantment with the Republicans in turn.

At the state level, new Republican majorities and governors will get to manipulate redistricting based on the 2010 census.

The elections were marinated in money, not the best medium for selecting the honest and qualified. As Johan Hari reminds us, the Republican speaker-designate has an alarming reputation for vote trafficking.

This year Citizens for Responsibility and Ethics in Washington had a list of 14 Crooked Candidates, of whom four were candidates for Florida Senator.

Rubio: Republican crook from FloridaThe Republican, Marco Rubio, won.

Another Floridian on CREW's list, the Republican Allen West, was elected to Congress despite being accused of war crimes in Iraq.

The Washington Monthly reported that West was one of five winners from Salon's list of 10 Most Terrifying Would-Be Congressmen.

In partisan state judicial elections, dollars gushed and tasteless advertisements proliferated.

One state, Iowa, had a judicial retention election with three (appointed) supreme court justices on the ballot.

After massive spending by special interest groups, all three were removed.

Their offence? They sat on a unanimous court that upheld gay marriage last year.

Balkin blogger Brian Tamanaha comments.

Meg Whitman: $143 mill on dog of a campaign Yet money didn't always talk. In California, ex-Hewlett-Packard CEO Carly Fiorina spent much of her HP golden parachute in a vain attempt to take Barbara Boxer's senate seat, and fellow Republican Meg Whitman spent $143 million of her EBay billion losing the governor's race.

Gail Sheehy has more.

*   *   *

Military commissions continue.

When we last saw Omar Khadr - in August - his lawyer had collapsed in court while cross-examining a Pentagon witness, perhaps the one who changed an incident report to implicate Khadr in the "war crime" of lobbing a grenade at US soldiers and the unprivileged belligerent (a CIA agent) with them.

Suddenly, days before the US elections, Khadr accepted a plea deal.  Atlantic Monthly's Andrew Sullivan was one of many disappointed by the Canadian's plea of guilt for newly-minted, previously unknown war crimes.

American media were blasé, but in Canada, The Toronto Star called it a circus, and according to The National Post, "Stalin would have been proud." 

In Britain, The Guardian's headline said: "America rewrites the laws of war."
 
Khadr's uneven deal was one year in Gitmo followed by seven in Canada, an arrangement concealed from the military jurors during the sentencing phase, where the prosecutors put on lurid testimony and asked for 25 years.

The jury voted for 40 years; the sentence remains eight.  

Canada has agreed to a transfer after one year, according to diplomatic notes exchanged with the US.

Omar Khadr has the distinction of being the only person since WWII convicted by a military commission for his acts as a child, and perhaps the first combatant convicted of ordinary murder as a "war crime".

It may be a first in the history of warfare, as the person killed was a uniformed soldier on a battlefield and no treachery or illegal weapon was alleged.

But Americans are special. They require their own version of the law of war, in which US soldiers can shoot, but can't be shot.

The lack of misdeeds known to the law of war proved no problem: Khadr signed a Stipulation of Fact, which contained all the legal conclusions necessary for ostensible commission jurisdiction.

That jurisdiction is under attack in the Court of Military Commissions Review. The appeals of Ali Hamza Al-Bahlul, and Salim Hamdan were argued in January, and a decision is imminent.  

David Hicks and Omar Khadr may have given up the right to appeal, but a CMCR decision that charges in the other cases are defective could benefit them, and result in their sentences being overturned.

*   *   *

There have been two "Guantánamo" trials in the news. 

The other one was in Manhattan, where Ahmed Ghailani was on trial for the 1998 bombing of two US embassies in East Africa. His case, however, had nothing to do with Guantánamo - he was merely stored there by the Bush administration.  

Mr Ghailani was indicted in the US in 1998. A warrant was issued for his arrest, but when he was apprehended in 2004, the Bush lawyers ignored the Clinton administration indictment. 

Heedless of federal law and contemptuous of the Manhattan court, the legally-trained lawbreakers employed by George Bush turned Ghailani over to the CIA for some serious torture.  

Judge Kaplan: held that government evidence was taintedWhen the CIA finished with Ghailani in 2006 he was sent to Guantánamo. He remained there until 2009, when Obama's Attorney General Eric Holder decided to obey the law, and produce him in Manhattan.

At the outset, Manhattan district court judge Lewis A. Kaplan excluded the government's main witness due to CIA misconduct.

The wheels fell off at the trial itself. The government hoped the jury would convict on all 286 counts, but the jurors acquitted Ghailani of all but one charge, conspiracy to destroy buildings and property of the US.

The single conviction carries a penalty of 20 years.

*   *   *

Fifteen-year-old Omar Khadr was denied the status of a child soldier even though the US signed up to the international "Child Soldier Protocol" that states children should be rehabilitated rather than prosecuted.   

At least the government is consistent. As Khadr was pleading guilty, Obama granted four countries a waiver from complying with the Protocol, so they could receive US military aid.  

The State Department explained why. Emptywheel was not impressed.

With US blessing, Yemen can keep arming children. Maybe the kids of Sana'a will flush out the apostate American Al-Awlaki (see my last post).  

It would save the cost of aerial assassination.