Loose in the USA

Stitching-up Assange ... Ninth anniversary of Guantánamo ... More Gitmo-related cases head for the Supreme Court ... Trying to fathom the meaning of "material support" ... Not all terrorist organisations are opposed by Republicans ... Washing Dick Cheney's dirty linen ... Roger Fitch reports from Washington

"The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." -  Justice Louis D. Brandeis 

A new year is upon us, and zealous men and women are loose in the US, not all of them well-meaning. 

We have a US president forcibly repatriating Guantánamo detainees to countries that practise torture, while signing away his power to prosecute certain terrorist suspects in US district court, the only valid venue. 

For good measure, the government has effectively excluded a US citizen from returning to the US after he was mistreated in Kuwait, apparently at US request.

At this rate, Barack Obama will make a great fusion candidate for the next presidential election.

Then there's the Congress. It began with the Republicans banishing "civil liberties" and "civil rights" from House committees.

These are the Republicans planning unconstitutional changes to the Espionage Act, the better to stitch-up Wikileaks' founder Julian Assange.

And we mustn't forget zealous DC judges, now resorting to Guilt by Guesthouse in order to indefinitely detain Guantánamo inmates.

All the while, torture enthusiasts from the Bush Justice Department such as John Yoo are cheerfully reporting in the high street press on the further adventures of crimes they once counselled at DoJ. 

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The WikiLeaks story rages on. Secrecy News surveys the laws that might validly apply against Assange.

Assange: should be worriedNone looks very promising, but the government is pressing on, fishing for evidence with an order against the social network Twitter. CNET has more. 

Many observers wonder how Attorney General Eric Holder can charge Assange without also prosecuting the New York Times, El Pais, Der Spiegel, Le Monde and the Guardian, which published the same information. 

Apparently selective prosecution is the plan. It's a grand US tradition.

Julian Assange should be worried. Once in the US's grasp, he could be a candidate for indefinite detention under Mr Obama's proposed new executive order.

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Among WikiLeaks' revelations was the fact that the US has actively refused cooperation, or interfered, in official investigations of US torture and rendition in Italy, Spain, Germany and Poland. Scott Horton comments. 

The Guardian reports on a suit in Spain seeking prosecution of the "Bush Six" torture lawyers, where former Gitmo Kommandant Gen. Geoffrey Miller could be the first witness subpoenaed.  Here's an outline of the case.

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As the ninth anniversary of the Guantánamo detentions generates news and statistics, attention is focussing on pending Gitmo-related cases that may land in the Supreme Court this term.

The extraordinary rendition case, Jeppesen Dataplan (Boeing) whose plaintiffs include several former Guantánamo prisoners, is headed for the court. The petition is here and Emptywheel has more.  

So is Omar Khadr's habeas claim.   

Supreme Court appeals are essential as there remains a roadblock of Guantánamo cases, post-Boumediene, at the DC Circuit. 

Senior Judge A. Raymond Randolph is the heart of the problem. His decisions in the landmark Guantánamo cases of Al Odah (Rasul), Hamdan and Boumediene were all reversed by the Supreme Court.

Randolph: never accepted the Supreme Court's decision in BoumedieneJudge Randolph has never accepted Boumediene, however, and even gives speeches attacking it. 

As Steve Vladeck notes, prospects for reversals at an evenly-divided court (Justice Kagan, as the former Solicitor General, will recuse) are bleak - unless one of the Boumediene dissenters pulls up the DC circuit for flouting Supreme Court precedent. 

Scotusblog has more here and here on the eight Guantánamo cases in which Supreme Court certiorari is being sought.

The case called Kiyemba III is destined for the court.  Kiyemba II may also be headed there, after a divided DC Circuit en banc decision on the transfer powers of habeas courts.  

The dissent in Abdah persuasively reviews the controlling English common law of habeas that the court's majority has ignored. 

The government has embraced the DC Circuit's anomalous glosses on the historic writ, and in its certiorari briefs it argues that the Federal Rules of Evidence don't apply to constitutionally-grounded habeas.

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In last term's Holder v Humanitarian Law Project, the Supreme Court ruled that providing legal advocacy services to an organisation designated "terrorist" by the US Treasury's Office of Foreign Assets Control amounted to material support for terrorism, despite the First Amendment's freedom of advocacy.

OFAC has now relented in the case of certain legal defence services. The National Security blog has more.

Congressman King: whiff of hypocrisyNevertheless, the meaning of "material support" continues to lie in the eyes of the beholder.   

One example is NY Republican Congressman Peter King, the new chairman of the Homeland Security Committee. He's keen to investigate "Muslim radicalisation" and alleged support of terrorism by US Muslims. 

Some smell hypocrisy. In the 1980s, Peter King was one of the most notorious US supporters of the IRA.

The double standard on terrorism is not limited to King. The Washington Post reports a visit to Paris by other leading Republicans, including Bush's last attorney general, in support of a US-designated terrorist group.

David Cole, lawyer for the losing side in Holder v Humanitarian Law, notes the apparent violation of that decision's reasoning when prominent Republicans speak up for organisations deemed "terrorist" by the US government.

Emptywheel comments.

Meanwhile, the legal status of the new military crime of "material support" - invented by Congress in 2006 - is still unknown.  It's now nearly one year since the appeals of convictions for this pretend offence were heard by the Court of Military Commissions Review, with no sign of a decision.

Robert Chesney wonders what the problem is.

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Cheney: corporate bribery upon corporate briberyCorruption charges brought against former vice-president Dick Cheney in his previous capacity of Halliburton CEO have been settled by Nigeria for a derisory $35 million payment (down from $500m), plus a promise to help recover up to $130 million in bribery loot stashed by the felons in a Swiss bank account. 

In 2009, Halliburton's ex-subsidiary KBR paid the US government a criminal fine of $402 million to settle Cheney's Nigerian bribery problems here, as well as $177 million in civil fines.    

The settlement with Nigeria, however, could be illegal under their law. It implies more corporate bribery, and what incentive is there for corporations and their CEOs to stop bribing foreign officials, when they can also bribe their way out of the consequences?