The deep and rich jurisprudence of the US Supremes ... What a Catholic god-fearing majority can do to the law ... FBI caught meddling in Guantánamo commissions ... CIA weapons stash discovered ... Oklahama experiments with new execution drug ... From Our Man in Washington, Roger Fitch
THE Supreme Court has unexpectedly voted for clean air, and the factual blunder in Justice Nino Scalia's dissent gave Fitch a small frisson of Schadenfreude.
In another case, the not-usually-progressive court seemed poised to enhance personal free speech for public employees.
At last, the court will hear a bank fraud case arising out of the 2008 housing mortgage debacle.
The court has also taken up mobile phone privacy issues. Oral argument is here.
Things look less encouraging on other Fourth Amendment (search and seizure) cases, such as police mistakes and anonymous tips providing probable cause, see here and here.
In an unusual departure from First Amendment jurisprudence, the court's all-Catholic God-fearing majority has blessed "ceremonial" Christian prayer at public meetings.
Before the decision in Town of Greece v Galloway, prayers had to be non-denominational; now they can be sectarian. The court has moved on from "endorsement" to "coercion" as the forbidden factor in public prayers.
The only dissenting Christian, Sonia Sotomayor, joined the Jewish justices in vigorous opposition.
Sotomayor: joined the Jewish judges in opposition to ceremonial Christian prayer decision
In other areas, the court is steadfastly avoiding cases involving guns or Guantánamo, summarily rejecting a Gitmo detainee's petition seeking recognition as a Taliban medic under the Geneva Conventions.
As expected, the journo Chris Hedges lost his Supreme Court appeal against the indefinite military detention of civilians, e.g. journalists, contained in the National Defence Appropriation Act.
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THE problematic nature of US detentions in Afghanistan has been highlighted by a UK decision.
The High Court of England and Wales ruled that the British military lacked authority under the law of war to hold prisoners in a non-international armed conflict (NIAC), whether for interrogation or as a "security threat".
The question has now been clearly framed, does International Humanitarian Law, i.e. the law of war, authorise detention in a NIAC, and if not, does Human Rights Law apply?
It's a problem, as the Obama administration claims that a mainstay of HRL, the International Covenant on Civil and Political Rights, doesn't apply to the US outside the US.
The Guardian has more.
The UN Human Rights Committee disagreed in a blistering report on the US.
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THERE'S been a new development at Guantánamo's "9/11" commissions, with the military judge, James Pohl, suspending proceedings after allegations the FBI tried to recruit a member of the defence security team as a government informant.
The FBI is part of DoJ, and perhaps Justice, like the Pentagon and CIA, can't play nice at the kangaroo commissions.
More here.
An investigation has ensued.
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Forced-feeding case opened a wider door for habeas actions
THE Congressional Research Service has a new update on Judicial Activity Concerning Enemy Combatant Detainees, including Aamer v Obama, the DC force-feeding case that opened the door to habeas actions based on more than mere detention.
Happily, DoJ won't appeal the Aamer ruling, which restores some of the ancillary habeas rights other DC Circuit panels have assiduously destroyed.
Following the Aamer decision, Guantánamo commission defendant Abd al-Rahim al-Nashiri filed a new habeas in DC challenging his Gitmo trial, and he has a fair chance of success, according to Steve Vladeck.
Interesting amicus briefs in support of Nashiri have been filed by David Glaser and retired military officers.
Like the amici, Opinio Juris's Kevin Jon Heller scoffs at the notion of a NIAC involving the US in Yemen in 2000, the time of Nashiri's alleged offence. Former Guantánamo defence counsel David Frakt has also weighed in.
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Oklahama Governor Mary Fallin: pressured state Supreme Court in capital punishment case
IN Oklahoma, unrestrained execution mania has resulted in a prisoner being effectively tortured to death using a drug cocktail never previously used in executions, and often banned from veterinarian use; the procedure took over an hour and a half.
More here.
To make matters worse, the state's Republican governor pressured the Oklahoma supreme court to lift its stay of execution, and the court, threatened with impeachment and/or its order being flouted, meekly complied.
The Guardian and NY Times have more on one of the more notable fiascos in the sordid history of capital punishment.
A new study suggests the imposition of the death penalty persists in 32 states in large part because of ideological money injected into partisan judicial elections.
The Republicans, for instance, have set up a special fund, the "Judicial Fairness Initiative", to invest in judicial contests.
According to the president of the Republican State Leadership Committee, there's a problem with "judges who aren't in touch with the public" - or for that matter, corporations.
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David Barron: authored legal opinion on drone assassinations
WHERE judicially-inflicted death is not available, there is of course extrajudicial, e.g. drone, killing, but it doesn't always run smoothly: the Danish government is now being sued over its involvement in the US assassinations.
A similar case was brought in Britain, and Malcolm Fraser thinks Australians working at Pine Gap could be exposed to charges, too.
Meanwhile, the civil damages action of Nasser Al-Aulaqi for the drone killings of his US citizen son and grandson has been dismissed (opinion here) by the DC District Court.
More on the case here, and Aulaki's lawyer responds here.
The 2nd Circuit has meanwhile ordered the government to release its "legal opinions" purporting to authorise drone assassinations.
The memos' author, former DoJ lawyer David Barron, is facing Senate opposition to his 1st Circuit judicial appointment (see February 2014 post).
The NY Times pressed the Obama administration to obey the 2nd circuit order, and release the opinions.
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CIA: secretly stashing weapons in Texas
ITALY'S highest court has confirmed the in absentia convictions of the CIA agents who violently abducted a man in Milan and sent him to Egypt for torture.
The CIA's Afghan "torturer in chief" has recently been found living in LA. Somewhat surprisingly, the Post reported it.
In other CIA news, the agency's long-secret arms depot has finally been located - in bucolic central Texas.
We already knew that the CIA had been deploying its agents as unprivileged belligerents, e.g. against the unfortunate Omar Khadr in Afghanistan (see Fitch of September 13, 2010).
Now it's been revealed that civilian FBI agents have also been unprivileged belligerents in US military operations, e.g. in Iraq, where one of them was injured while fighting with JSOC, the US Joint Special Operations Command.
Back home, the FBI's assault on the 4th Amendment now includes a proposed US court order letting its agents "access" a computer anywhere in the world, not just the judicial district where the court is located.
Sigh.