Dire consequences

The fallout from the Supreme Court's "money talks" theory of participatory democracy ... US Supremes give green light to states' marriage equality laws ... Prosecuting a non-war crime with no connection to the US ... Senate report on CIA torture soon to be buried ... Useful revelations from presidential libraries ... Roger Fitch reports from Washington 

Electing more of the same

THE mid-term elections are over, and the nightmare of a far-right Republican lock on both houses of Congress, last experienced in 2006, is set to resume in January.

Under the possible misapprehension that theirs is a Westminster form of government, American voters periodically blame the conduct of the legislative branch on the party of the government, even though the president and executive branch have little control over Congress under the US system.  

In fact, the outgoing, highly-despised House of Representatives had a Republican majority, despite that party having received a minority of the popular vote (see post of December 4, 2012).

Psephologists will not be particularly surprised that those Americans who could still manage to vote in 2014 overlooked two years of Republican obstructionism and blamed the unpopular Obama and his party for the failures of a Congress they didn't control.

The voters even elected more of the same, making the Senate Republican, too. That spells trouble for Obama's judicial appointments, but helps him make the Senate's uncongenial CIA torture report (see below) go away.

More on the elections here. 

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THE Supreme Court's Republican bloc has overtly pursued the electoral advantage of their party since December 13, 2000, by choosing a president, gutting the Voting Rights Act, and forcing unlimited, secret and unregulated corporate election funding.

The court has allowed gerrymanders, vote-suppression legislation and other acts transparently designed to lower the vote for Democrats, and doesn't even concede there's a constitutional right to vote. 

With the now-notorious cases of Citizens United and McCutcheon, the Supreme Court's Republican majority embraced the "money talks" theory of participatory democracy. The consequences have been dire, and predictable: spectacular corruption of US elections at all levels, city hall, state house, elected courts, Congress – even, some say, the White House.

Nevertheless, the Supreme Court did scotch some of the Republican schemes to impede, through photo IDs, voting in the November elections.

Photo IDs have now fallen out of favour with the highly influential 7^th Circuit judge Richard Posner, who originally approved them.   

Perversely, the Texas ID law, also devoted to vote-suppression, was allowed to go into effect during this election.

It didn't have to be that way, according to Supreme Court observer Linda Greenhouse.   

The Guardian had a fascinating case history on how Texas comprehensively defeats minority voters.

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US Supremes effectively making gay marriage legal

IN other Supreme Court business, the biggest news has been the denial of certiorari in seven cases from states where same-sex marriage had been recognised by lower federal courts.  

Without ruling on the merits, the court effectively made such marriages legal in 11 more states, and the total now is at least 32 states and the District of Columbia. 

The Supreme Court has also declined to hear the twin miscarriages of justice in the cases of Tarek Mehanna and Razak Ali (the Gitmo "guilt by guesthouse" case of the indefatigable Guantánamo Bar member Candace Gorman), more here.   

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IN the wake of the elections, the indestructible CIA holds all the cards. Already, the White House has allowed Robert Litt, general counsel for the Office of Director of National Intelligence, to censor the Senate report. He previously represented CIA personnel implicated in the agency's torture program. 

Most likely, the report will never see the light of day, with the Senate in Republican hands, and happily for the CIA, the new Republican chairman of the Senate Intelligence Committee is their slavish defender, Richard Burr of North Carolina.  

There has meanwhile been a shadow report on US torture presented to the UN by American academics. 

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ONE of the CIA's notable torturees, Abd al-Rahim al-Nashiri, is now on military trial at Guantánamo for a civilian offence that happened before there was a war.  

His lawyers have pointed out that the tactic used in the 2000 bombing of the USS Cole would, however, have been legal if there had been a war underway. 

Although the CIA admits torturing Nashiri in ways that are war crimes, the Pentagon has sought the death penalty in an irregular military court - in itself a war crime - for civilian offences that aren't war crimes.  

The most absurd of all the so-called war crimes charged at Guantánamo was one against Nashiri that involved the 2002 bombing of MV Limburg, a French-chartered Malaysian tanker that killed a Bulgarian in international waters before there was any war - an event which had no connection whatever to the United States.

Nashiri has now had a substantial victory at Guantánamo, as the Limburg charges have been dismissed by the military judge hearing his case. Further developments here and here. 

Unsurprisingly, the Pentagon has appealed the ruling to its drumhead Court of Military Commission Review.

Jens Ohlin and Marty Lederman have more on the Obama administration's insistence on prosecuting a non-war crime with no connection to the US. 

Marty Lederman has also opined about the other (Cole) bombing, and what constitutes "perfidy". 

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IT'S a bizarro world. Despite the Geneva Conventions and centuries of history, the US government continues its strange quest to punish combatants who, without using treachery or unlawful weapons, injure US military personnel or property on battlefields. 

At Guantánamo, the Bush Administration, and then Obama, attempted to try ordinary war combatants from Afghanistan for the "war crime" of attacking American troops, using Congressionally-invented charges such as "material support for terrorism" that American courts found to be invalid offences under the law of war.

MST, however, is a valid crime under the domestic laws of the US, and so the US government has now brought a Taliban soldier, held in military detention at Bagram for years, to the US for trial (more here).

His offence remains the same, of course: attacking American soldiers on a battlefield.  

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Lineup at the Nixon Presidential Library

IT seems presidential libraries have some use, after all.  

The Nixon Library in California, for instance, recently confirmed the Republican party's interference during the 1968 election campaign with the Paris peace talks Lyndon Johnson organised for Vietnam.  

Behind-the-scenes scuttling of the peace conference by Kissinger and Nixon led to five more years of war, 20,000 more American deaths, and the bombing of Cambodia and Laos.

Another California presidential library, Ronald Reagan's, has released documents that verify Reagan's central role in the so-called Iran-Contra scandal of 1986, when it was revealed that arms were sent illegally to Iran in return for that country supplying the anti-government Contras in Nicaragua, whose support a Democrat Congress had banned.