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Roger Fitch Esq
30 July, 2007  
Our Man in Washington

The White House confronts Congress over demands by the Judiciary Committee to speak to former Bush aides over the sacking of US attorneys … Meanwhile, the Administration toughens its stance on torture and those who criticise the Iraq war … Plus plenty of fresh ultra vires initiatives


imageThe crime spree in Washington shows no sign of abating.

The latest outbreak has been in Foggy Bottom (the State Department), where it has been revealed, once again, that public servants are brazenly enlisted in Republican politics, to wit, Congressional elections. Even the foreign service, it seems, is expected to pitch in.

Meanwhile, on the Hill, the House Judiciary Committee has been threatening to bring contempt charges against two former inmates of that nearby safe house, the White House. These former officials are refusing to testify before Congress, on the highly partisan advice of the Justice Department’s Office of Legal Counsel.

The committee is anxious to hear what the ex-officials have to say about the political meddling in the sacking and appointment of US attorneys.

A never-tested OLC legal memorandum from 1984 by Theodore Olson, of all people, has been dusted off and put forward. It conveniently opines that Congress can’t use US courts to enforce contempt proceedings, when executive privilege has been claimed.

The White House even went so far as to say that the Justice Department would not be allowed to enforce a contempt charge brought by Congress as a result of former White House officials refusing to testify.

imageThe person designated by law to bring Congressional criminal contempt proceedings, the US Attorney in Washington, one Jeffrey Taylor (pic), was appointed by Attorney General Alberto Gonzales using the interim powers which have now been taken off him. Apparently Taylor, while at “Main Justice”, participated in efforts to replace US attorneys who did not toe the political line.

The House Committee, undaunted, has now approved contempt charges, based on its own advice and report. A Congressional Research Service history of the use of contempt powers by Congress seems to support the House.

But according to litigator and author Glenn Greenwald, the “great unanswered question” is whether the Bush Administration, on losing a court battle, “would explicitly claim the right to defy the judicial order on the ground that the order exceeds proper judicial authority”, and he cites a suggestion of this in the Olson memorandum.

On the Senate side, Gonzales has been called to testify once again, but Fredo (pic) continues to stonewall the imageJudiciary Committee, leading the senior Republican on the committee to suggest the appointment of a special prosecutor. Harper’s Magazine’s lawyer-blogger Scott Horton was not impressed.

As The Financial Times reports, the Department of Justice is now “operating on autopilot”, which isn’t necessarily a bad thing for those branch offices that are accustomed to Main Justice’s political interference and ideological control.

At the summit of all this criminal activity, the junior member of the ruling duumvirate, George W. Bush, has issued a fresh batch of executive ukases, those presidential “orders”, mostly extralegal, in which he revels.

Bush’s first edict purports to authorise the seizure of assets of, arguably, Iraq war critics. The Washington Post has more.

It’s a tough time for regime opponents who are anti-war activists. Today you get on a “no-fly list”; tomorrow you may find your ATM card no longer works. And if you persist, you could be declared an “enemy combatant”.

The second Bush diktat purports to clean up CIA torture, while many observers argue it, in fact, authorises and reinvigorates it.

imageGeorgetown University law prof David Cole (pic) says that the effect of the interrogation order is to make the laws against torture unenforceable.

As human rights attorney Joanne Mariner notes, the new order …

“purports to determine that the CIA’s secret prison program ‘fully complies’ with US obligations under Common Article 3 of the Geneva Conventions [but the] Geneva Conventions do not permit secret, incommunicado detention and US law makes no provision for the CIA to hold detainees.”

In addition, most of the things the CIA does are forbidden under the fundamental guarantees (Article 75) of the 1977 Protocols to the Geneva Conventions, which the US accepts as part of customary international law.

* * *

Although it isn’t easy, I try to keep readers abreast of the latest initiatives, ultra vires and otherwise, of the Bush Administration.

One of the more curious events has been the President’s recent firing of an independent appointee to an international border agency who was attempting to enforce the law on the West Coast border with Canada.

In Dallas, the Government has brought a lawsuit against a Muslim charity, and in so doing managed to name as “unindicted co-conspirators” some 300 of the most well-known and respected Muslims and Islamic organisations in the country. Is this collateral damage, or deliberate?

In Miami, the prosecution has rested in the Padilla case, and although the judge declined the defence motion to dismiss the charges, people are beginning to ask, how it is possible to have a conspiracy without a plot?

You may have heard that lawyers for Jose Padilla (pic) attempted (unsuccessfully) to keep Osama bin Laden’s name imageout of his trial because, unlike his co-defendants in the case, there is no evidence that he met, talked to or even talked about bin Laden. The defence quite rightly acted on the theory that even mentioning bin Laden’s name would prejudice the case against their client.

Now, an opposite problem has surfaced. In a case in Pennsylvania, the township defendant in a civil damages case has asked that George Bush’s name not be mentioned because it might prejudice the jury in favour of the anti-Bush plaintiff.

* * *

It’s nice to know that some good falls in the laps of lawyers as a result of the Bush lawyers’ court machinations. No sooner had Scooter Libby had his 30-months commuted by Bush as “too harsh” – in direct contradiction of the solicitor general’s briefs in the most recent Supreme Court term – than a new motion (quickly styled a “Libby Motion”) began appearing in federal courts, seeking shorter sentences for obstruction of justice and perjury convictions.

imageOne of the first to benefit was Muhammad Salah (pic) of Chicago, a defendant in one of the Government’s favourite “terrorism” cases, in which, when no terror conviction was forthcoming, the Government had to settle for obstruction of justice and lying. The Administration wanted Salah to get 10 years. The court gave him 21 months.

It was quite a contrast to the sentence awaiting Sabri Benkahla, the last “conspirator” in the Virginia Jihad cases. After being acquitted of terrorist charges, Benkahla was brought before a new grand jury to testify. When he was not sufficiently forthcoming, Benkahla was convicted of obstruction of justice and perjury. Unlike Salah, he received 10 years, even though the maximum was three years.

The “terrorism training” for many of the Virginia Jihad defendants consisted of playing “paintball” in the Virginia countryside. But Benkahla, the last “paintballer” of about a dozen, had also visited a training camp in Pakistan (the same, the prosecutor noted, as the notorious David Hicks), and declined to talk about it. Now he has seen his sentence increased from the maximum allowed, through a new “terror enhancement” scheme.

The prosecutor, Gordon Kromberg, has become somewhat notorious for Muslim-baiting and specialises in hauling those acquitted back before new grand juries where, it is alleged, “perjury traps” are set for them. He has also been behind the Al Arian grand jury contempt in Virginia.

Judge James Cacheris, a Reagan appointee (1981) admitted that what he was doing had never been done before, but congratulated himself on not giving the defendant the 22 years the Government had sought. He magnanimously gave only 10 years, for a three-year offence.

Ten years is the sentence Benkahla would have received if he had been convicted of attending a training camp in the first place, as happened in the very same week in the Houston trial of Daniel Maldonado.

Some might call this double jeopardy.