US Supremes deregulate campaign funding and redefine corruption ... First Amendment to move into corporate religious liberty ... Remembering Ambassador Robert McCallum ... Senate and CIA clash over pending report into torture and black hole prisons ... From Our Man in Washington, Roger Fitch
IN 2010, the Supreme Court made dramatic changes to the First Amendment in two decisions, Citizens United v FEC and Holder v Humanitarian Law Project.
Humanitarian Law chilled free speech by subjecting lawyers and others to the danger of material support for terrorism prosecution, for e.g. helping designated terrorist organisations become legitimate groups.
Citizens used "freedom of speech" as a pretext to flood electoral politics with unlimited funds from corporate treasuries (and the few surviving labour unions); it was the first time a corporate body had received one of the constitution's personal First Amendment rights.
The decision came at a time when the US political system was already suffering the effects of systemic and indeed spectacular corruption in the guise of ostensibly electoral "campaign contributions".
This term the Supreme Court has had more free speech cases before it, especially "money-speech", in McCutcheon v Federal Election Commission.
In McCutcheon, the court's Republican majority has taken a further incremental step in its plutocratic agenda.
There's to be a new constitutional right of individuals to give money to as many candidates as they like without Congressional interference, more here.
In so doing, the court seemed to redefine corruption itself, ignoring the fact that unlimited expenditures can be as disruptive to democracy as open bribes.
A bleak picture of the post-McCutcheon world has been painted.
Shaun McCutcheon (centre) leaves a scaffolded Supreme Court after his election funding victory
David Cole calls it the end of democracy, and, in fact, the US already qualifies as an oligarchy, according to a new Princeton study.
The Republicans have wasted no time, creating a "super joint fund-raising committee" to collect, er, "campaign contributions".
Scotusblog has more views here, and the National Journal comments here.
The court's majority has now turned its attention to a possible First Amendment corporate religious liberty.
The Hobby Lobby case has hit the court, and it looks like the five-man Catholic majority may find that the requirement of abortion coverage within "Obamacare" infringes a new-found freedom of religion enjoyed by corporate proprietors.
There could be far-reaching consequences, especially if the court fails to decide the case narrowly.
The Brennan Center has more here on the history of the personhood notion that would allow godless corporations to enjoy freedom of religion, and Linda Greenhouse comments in the Times.
* * *
Robert McCallum (centre): she'll be apples
IN July 2002, Robert McCallum, later US Ambassador to Australia, became the first Main Justice lawyer to stand up in an appeals court and argue that Guantánamo prisoners had no rights a court could regard.
When the case returned to the 9th Circuit in August 2003, the Solicitor General, Ted Olson, went even further.
As the court noted in its decision in favour of the detainee (later vacated in light of the Rasul/Hicks case):
"Under the government's theory, it is free to imprison Gherebi indefinitely along with hundreds of other citizens of foreign countries, friendly nations among them, and to do with Gherebi and those detainees as it will, when it pleases, without any compliance with any rule of law of any kind, without permitting him to consult counsel, and without acknowledging any judicial forum in which its actions may be challenged. Indeed, at oral argument, the government advised us that its position would be the same even if the claims were that it was engaging in acts of torture and that it was summarily executing the detainees ..."
At least you can't accuse successive US administrations of being inconsistent.
When the Gherebi decision issued in December 2003, the Bush CIA was busy torturing a man now held at Gitmo, Abd al-Rahim al-Nashiri, in an East European dungeon.
While there, Nashiri endured, in addition to water-boarding, death threats by gun and electric drill - classic war crimes.
Now the US is carrying through with its threat to kill Mr Nashiri, by seeking the death penalty in a military commission, based on evidence that is secret - especially that involving his torture.
There's a possibility, however, that the impending release of the Senate's CIA torture report (see below) could spoil the government's pre-emptive classification of Nashiri's torture experiences in the CIA Gulag, and even provide the names of his torturers.
Indeed, the presiding military judge, Col. James Pohl, has ordered the prosecution in Nashiri's case to give his lawyers the details of his CIA black site detentions including locations, names of medical personnel, guards and interrogators (including contractors), all statements and notes, legal opinions and more.
It's a big win for the defence, though an interlocutory government appeal can be expected.
* * *
Dianne Feinstein, chairwoman of the Senate Intelligence Committee, accuses the CIA of cover-up and intimidation
WHILE the European Court of Human Rights has been hearing the case of Nashiri and others who were tortured at CIA "black sites" in Lithuania and Poland, the sites themselves have been the subject of a Senate investigation.
The release of parts of the report has been approved – subject to declassification – and in the meantime it is being selectively leaked, e.g. to the Washington Post.
While declining (as did other US media) to use the word "torture", the Post did refer to it in leaked descriptive gems such as this delicate allusion to anal assault:
"Officials said a former CIA interrogator ... was forced to retire in 2003 after being suspected of abusing Abu Zubaida using a broomstick as a ballast while he was forced to kneel in a stress position."
The CIA report could affect other cases. More here on the still secret report.
Perhaps unwisely, the CIA tried to torpedo the report, and the US Senate is outraged that its computers have been "monitored".
The Guardian has more.
A top CIA lawyer, acting General Counsel Robert Eatinger, is at the centre of the controversy. More comment here.
The Senate has called in its own computer experts to investigate CIA interference, while the CIA has referred the actions of the Senate to the Justice Department for investigation.
Complicating matters, the DoJ is itself currently under investigation.
On top of all this, Mr Obama is withholding thousands of White House documents that may implicate his predecessor in the torture program.
Politico has more on the whole schmozzle.
As David Cole and Scott Horton note, it's unlikely the CIA will face any consequences for its torture program.
In fact, the CIA's most notorious "interrogator", the ethically-challenged psychologist James Mitchell, has come forward, and he's unrepentant.