Contraception insurance and the theocratic consequences of Hobby Lobby ... CIA tortured find justice in Europe ... Guantánamo judge resigns as DC Court throws a spanner in the works of the Military Commissions ... From Our Man in Washington, Roger Fitch
Every list of the top ten decisions in the Supreme Court's last term includes Burwell v Hobby Lobby, which discovered a previously unknown right of corporate religious freedom.
The case (see last month's post) continues to reverberate, with revelations that the Hobby Lobby company only recently discovered it had religious scruples against insuring contraception, to exploit the Court's 2010 successful fabrication of another corporate First Amendment right - free speech.
Ghastly theocratic consequences of Hobby Lobby are foreseen.
Meanwhile, lawyers representing Guantánamo internees, impressed by the new-found freedoms of abstract corporations under the Religious Freedom Restoration Act, were quick to demand the same rights for their corporeal clients.
The government, however, refuses to concede the men are "persons".
More here.
Marci Hamilton comments on the statute at the heart of the problem and here, and the RFRA is now the subject of a Democratic Bill in the Senate called the Protect Women's Health From Corporate Interference Act.
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The Senate's CIA torture report is pending, and Bush Gang member George Tenet is managing the agency's resistance.
Senator Feinstein: hacked
While the executive summary of the Senate report is yet to be released, the government has already prepared repellent talking points to deal with it. More here.
Mr Obama's Justice Department has agreed not to prosecute CIA operatives for hacking the Senate's computers - an agency effort to control the report – and so the CIA now admits it did just that. More here.
The CIA's admission is part of a charm offensive, but David Cole thinks public relations are a poor response to a violation of multiple US and international laws against torture. In apparent agreement, the NY Times has finally agreed to use the word "torture" when describing acts of Americans.
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Several foreign countries meanwhile are bearing the costs of CIA and Pentagon crimes and blunders.
Britain has already paid substantial sums to UK citizens and residents held at Gitmo (including one who is still there) to settle claims of British complicity in their mistreatment by the US.
British troops were also called to account for carelessly surrendering the Pakistani Yunus Rahmatullah to the Americans, who held him without charge for ten years, finally releasing him in May of this year.
Rahmatullah is now suing the British government for his mistreatment by both countries.
A UK court previously found that Rahmatullah's removal by the Americans from occupied Iraq to Afghanistan had been a violation of the Geneva Conventions, i.e. a war crime. The British government responded that there was no point in asking his release - as it was entitled to do under an agreement with the Americans – since the US would only ignore their request.
Moreover, it might damage the "special" Anglo-American relationship (see post of January 12, 2012).
The European Court of Human Rights has been holding its member states to account for the CIA's misdeeds. The ECHR previously ordered Macedonia to pay damages to Khaled El Masri for that country's collaboration in his abduction and torture by the CIA (see Fitch of January 9, 2013).
Just last month, the ECHR found Husain Abu Zubaidah and Abd al-Rahim al Nashiri had been tortured by the CIA with Polish government complicity, and Poland has been ordered to pay compensation to the men, who are still held at Guantánamo.
Opinio Juris and the Guardian have more.
The official finding by the ECHR that Al-Nashiri was tortured by the CIA makes his current death penalty prosecution in Guantánamo all the more brazen, and the court has ordered Poland to take steps to prevent his subjection to the death penalty in his military trial. Good luck.
The ACLU and Open Society have more.
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The DC Circuit's long-awaited en banc decision in the Al Bahlul military commission appeal has now been announced, and augers ill for the continued existence of the Pentagon's shambolic ad hoc tribunals. Analysis here.
There's more from Scotusblog and Just Security on the confusing decision that, surprisingly, sustains the validity of conspiracy as a war crime.
The government's militarised view of civilian justice has meanwhile been revealed in a DC habeas case.
Government says providing evidence of force feeding is bad for morale
When asked to provide evidence of Guantánamo force-feeding to a DC District Court, the administration claimed it was "bad for morale", and Pentagon brass shouldn't be forced to "defend against our enemies' legal challenges," oblivious of the civilian concept of adversaries, not enemies.
The Pentagon continues to throw its weight around at Guantánamo: Judge James Pohl, who had been hearing the Al-Nashiri military commission and recently ruled that the CIA must tell defence lawyers about Nashiri's rendition and torture and the countries where it happened (including Poland, see above) has abruptly removed himself from the case.
More here.
Perhaps it was a choice of voluntary removal or involuntary retirement. The latter is what happened to commissions judge Peter Brownback in 2008 when he began to make favourable rulings for Omar Khadr that the Pentagon found uncongenial (see Fitch of June 2, 2008).
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Footnote in the drone killings memo
A footnote to the recently-released Anwar Awlaki drone killings memorandum reveals that the DoJ now takes the position that CIA agents, though unprivileged belligerents (i.e. subject to domestic criminal law of countries where they fight), are part of the US military for battlefield immunity purposes.
Ex-Gitmo detainee Omar Khadr - now serving faux war crimes sentences in Canada – thinks that he, also an unprivileged belligerent, should be entitled in like manner to battlefield immunity for his actions opposing US troops in Afghanistan.
Khadr's lawyers duly filed in the Court of Military Commission Review to have the stay of his appeal (pending the Al Bahlul decision, see above) lifted, but without success.
Meanwhile, the ongoing habeas challenge of Djamel Ameziane, the Guantanamero who was "cleared" for release and then forcefully repatriated to his home country of Algeria last December, has been dismissed as moot by the DC District Court.
The government won't have to pay back the money they confiscated when taking him prisoner in Afghanistan in 2002. The Pentagon claims there is a ...
"strong national security interest in preventing these funds from being used in a manner that would adversely impact the safety and security of the United States."
Others say it appears to meet the definition of "pillage" in the Geneva Conventions.