Drones are taking over

European governments oppose US claim to impose liability for overseas wrongs of foreign corporations ... Legal professional privilege threatened at Gitmo ... Congress wants drones buzzing around US skies ... Is conspiracy a war crime? ... Roger Fitch, Our Man in Washington, files this report 

Mr Obama eventually located his cojónes (see December post) and made some recess appointments.

The problem is the recess appointments he should have made and didn't, especially to appeals courts.

A Republican president elected in November would find many judicial vacancies still unfilled. As for the Supreme Court, Dahlia Lithwick thinks one more round of Republican appointments could be fatal.

It's one aspect of a doomsday study by the Washington Monthly imagining the horrifying consequences of a Republican-Tea Party victory in 2012.

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In Kiobel, the important Alien Tort Statute case now before the Supreme Court (see October post), the defendant Shell Oil is receiving the support of three foreign governments as well as assorted Bush lawyers, including John Bellinger and Jack Goldsmith, while the Obama administration is supporting the plaintiffs.

Obama's lawyers also filed an amicus in Al -Shimari v CACI International, a 4^th Circuit full bench appeal, where the government opposes ATS immunity for US contractors charged with torture at Iraq's Abu Ghraib prison. 

The defence in the latter case is relying on a battlefield immunity previously applied to soldiers, not contractors or camp-followers. More here.  

Al-Shimari is being reported by the war power-friendly Lawfare, which has lightened up lately with the addition of the war power sceptic, law prof Steve Vladeck. 

Vladeck's note on the al-Shimari hearing is here and here he blogs on the further ATS ramifications. 

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New requirements of secrecy - partly designed to prevent revelations of torture - are being enforced by the Pentagon against Guantánamo defence lawyers.

In addition, Guantánamo advocate Clive Stafford Smith won't be allowed to show his notes to a British inquiry.

Woods: upending legal privilege at GuantánamoA (possibly contrived) incident has been used to justify the introduction of other restrictions - this time implicating legal professional privilege: a copy of Al Qaida's magazine Inspire has turned up among prisoners at Guantánamo. 

Jason Leopold reports other "contraband smuggling" accusations against lawyers, including photographs of (shudder) CIA interrogators.

An order of the Commandant at Gitmo, Rear Admiral David Woods, has caused outrage as violating legal privilege for "9/11" and other defendants.

Both the establishment American Bar Association and the American Conservative spoke out against the admiral's order, and the chief defence counsel ordered all Gitmo defence lawyers to ignore the order that they submit their legal work product for review at Guantánamo.

If the defendants in the military commissions have a sixth amendment right to counsel, the order can't stand.

A case in DC district court contesting the order has been filed by a lawyer representing Ammar al Baluchi, one of the 9/11 defendants.

Another 9/11 defendant, Mustafa al-Hawsawi, unsuccessfully petitioned the DC Circuit to stay the new Gitmo privilege policy, based on claims under the 1^st and 6^th amendments and the Military Commissions Act 2009. 

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Lovely new weapons are being developed by the US (report here), but in the meantime, drones are taking over.

So far, Obama's aerial robotic killers have only been used abroad.

The drone strikes are not just the work of the military and CIA. The LA Times reports the assistance of civilian "analysts" in the killing.

Even more alarming, a study by the London-based Bureau of Investigative Journalism has found that "accidental" drone strikes at funerals and the killing of would-be rescuers may be deliberate CIA strategy. 

There's more here.

Glenn Greenwald considers the purported legal justification. 

The ACLU is seeking the Justice Department's Office of Legal Counsel advice on drones through FOI.

Destined for US skiesMeanwhile, both the US Army and Congress are keen to see drones buzzing around US skies.

Commercial applications are planned, while civil liberties groups are dismayed and so is the LA Times.

The Nation's John Sifton has a brief history of the drone and the moral drawbacks of a "new" weapon that's been around for 100 years.

The pilots themselves suffer stress of a different quality from that of high altitude bomber pilots who don't have video of the human costs. Moreover, a single remote-pilot could soon be responsible for four planes at once. 

For those targeted for death, there's no way to litigate one's inclusion on the death list, as the American citizen assassinated in Yemen, Anwar al Alwaki discovered. 

Awlaki, and Samir Khan, the editor of Inspire (see above), were vaporised last September after the two Americans foolishly tried to exercise their first amendment rights in Yemen, rather than the US.

Already, the intelligence community misses Inspire.

Awlaki could have benefited from a Special Appearance - a US civil court procedure allowing a defendant who is resident in one state to appear in the court of another state, solely to dispute personal jurisdoction. 

In the 2010 DC district court case to prevent Awlaki's killing - brought by his father, who was denied standing - there was no means or place for Awlaki (who hadn't been charged with anything) to appear and contest his "Red Queen" sentence, without risking death, or if he was lucky, indefinite detention. 

Now that Awlaki's dead, the government has thought of something with which to charge him. 

As for Samir Khan, he was collateral damage.

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The US brief in the DC circuit appeal of the Hamdan military commission decision has now been lodged, and every discredited legal theory of the lawless Bush administration has been dusted off and reasserted.

In fact, Obama's lawyers have gone further and invented a previously unknown US common law of war.

LieberCode blog has more. 

Meanwhile, the DC Circuit has actually ruled in favour of a detainee - or at least his lawyers - in the Hamdan-companion appeal of Ali Hamza Al Bahlul. The appeal will go on, although Al Bahlul hasn't expressly authorised it.

The appeal is crucial as it offers the civil appellate courts their first chance to consider the government's contentious assertion that conspiracy (for which Al-Bahlul was convicted) is a war crime.

In Hamdan's 2006 appeal to the Supreme Court, four justices (of eight) said it wasn't.