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Roger Fitch Esq
15 August, 2007  
Our Man in Washington

The title alone suggests that the Protect America Act is pretty unsavoury … Another round in the NSA spying suits … Latest torture notes … More motions and whistleblowing from Guantanamo … A new job for the lovely Deputy US Ambassador for War Crimes


imageWho hypnotised the chooks, and how did they do it?

Those are the questions being asked in Washington after the nominally Democratic Congress rolled over and passed the (shudder) Protect America Act.

This act authorises all the spy-crimes the Bush Administration has committed in the past six years, most notably the serial felony of “warrantless” surveillance circumventing the Foreign Intelligence Surveillance Court.

Congress then slunk out of town for its summer break.

As Yale law prof Jack Balkin noted, the President immediately sent a letter to Congress in which he demanded it pass even more ex post facto blessings of his behaviour when it returns in September, effectively telling them their complete capitulation is not good enough.

John Dean explained in FindLaw’s Writ why the PAA poses a danger to much more than civil liberties.

How did Bush get legislation past Democrats that was worse than last year’s rejected proposals? Civil rights and First Amendment lawyer Glenn Greenwald weighed in with interesting insights. As Brennan Centre lawyer Aziz Huq noted of the act, “the title alone ought to be warning that unsavoury motives are at work”.

In the end, it was the Washington Post that revealed the trap that Cheney-Bush set for the Democrats.

It didn’t hurt the Republicans that fully 48 Democrat Representatives belong to something called the Blue Dog Democrats. They provided most of the 41 Democrats who voted for the PAA in the House.

* * *

Sure enough, the Bush Administration wasted no time in trying to get National Security Agency spying suits pending in San Francisco – such as the one brought by the Centre for Constitutional Rights – dismissed, based on thePAA.

The American Civil Liberties Union, plaintiff in several of these suits, took a different tack, asking the judge hearing the consolidated surveillance litigation, Vaughn Walker, to declare the new act unconstitutional.

Some have noted that the PAA apparently authorises the use of central switches in the US to intercept a staggering percentage of the world’s email and telephone communications. This will likely lead to the government requiring the installation of new switching equipment that hackers will be able to use as well.

Meanwhile, a case originating in Oregon looks like the best lawsuit to go forward against government surveillance and should be unaffected by the PAA. It’s the one where the Government inadvertently sent proof of the crime to the lawyers being illegally surveilled.

* * *

imageMaher Arar (pic) is the Canadian citizen who was seized by the US while transiting JFK in New York and sent to Syria for torture.

A Canadian government inquiry into that country’s complicity resulted in Arar receiving more than $10 million in damages and an apology, and heads rolled, I believe, in the Mounties.

Now, the largely uncensored version of the Arar report has been released, and it reveals that, while George W. Bush may not think the US tortures, the Canadians believe otherwise.

Canadians don’t think much of Guantanamo, either. In fact, the Canadian Bar Association now opposes the Bush Administration’s plans to try a Canadian citizen by military commission.

Coincidentally, the American Bar Association is expected to condemn the CIA “enhanced” interrogation of detainees, apparently “authorised” by the new Bush imperial order, which I reported last month.

It’s a pity the Canadian and American lawyers have lagged so far behind the Law Council of Australia.

* * *

You will recall that in the 4th Circuit, one appeals panel ruled that the citizen Jose Padilla was an “enemy combatant”, while another panel ruled that the similarly situated resident alien Ali Al-Marri was not an EC.

Padilla’s habeas, as we know, was scuttled by the Government, but the case of Al-Marri is very much alive and the Government is hoping to get it reversed. The Bush lawyers, however, may have missed their chance.

Although the Republicans have not yet lost effective control of the Bush-friendly 4th Circuit, retirements have reduced the court to a five-five divide between Democrat and Republican appointees, so it’s unlikely the Al-Marri case can be imageoverturned by an en banc review before heading to the Supreme Court, where success for the Bush lawyers is less likely.

* * *

In Guantanamo news, lawyers for the Pakistani businessman and (former) millionaire Saifullah Paracha (pic) have filed a certiorari petition in the Supreme Court.

It would be the first case to consider whether the Military Commissions Act lawfully applies to a permanent resident of the US.

Paracha’s green card could make a difference, as Scotusblog reports.

Mr Paracha also has a case in the DC Court of Appeals in an action under the Detainee Treatment Act. This will be the first case to review the concept of “enemy combatant”, and the court has ordered a broader record than the Government has ever provided. Paracha’s lawyers seek extensive information, including evidence of torture. Scotusblog has more.

* * *

During the lead-up to the first military commissions created by George W. Bush, and found unconstitutional by the Supreme Court, a number of insiders in the military prosecution were reputed to have jumped ship rather than participate, including at least three officers.

More recently, one of the officers assigned to prosecute a detainee withdrew from the case because he declined to use evidence obtained under coercion.

imageThe latest Guantanamo whistleblower is Army Lt. Col. Stephen Abraham (pic), who was involved with the Combat Status Review Tribunals that purport to declare whether someone is an “enemy combatant”.

He’s been profiled in The New York Times and testified before Congress about the sham that he considers the CSRTs to be.

In his blog, the historian Andy Worthington relates how Col. Abraham’s testimony has assisted another case. Chicago lawyer Candace Gorman was able to confirm that the CSRT panel on which Abraham sat was that of her client, the Libyan Mr Al-Ghizzawi.

When Abraham’s review panel refused to find that Al-Ghizzawi was an “EC”, the Pentagon simply sent his case to a “do-over” panel that gave the result the military wanted.

Armed with this knowledge, Gorman has filed a habeas action directly in the Supreme Court.

* * *

The treatment of detainees in Guantanamo continues to attract controversy, and the Bush Administration is claiming that it wants to repatriate those who have been “cleared” because they are “no longer a threat”.

At the same time, the Heritage Foundation – a Republican front – has put out a helpful publication that explains how Gitmo inmates are being provided all of the Geneva and constitutional protections to which they are entitled.

In any event, “cleared” detainees are being released, and they are not giving out happy stories.

One person newly out of jail is Juma Al-Dossary, who attempted suicide 14 times. At one such attempt his lawyer, Joshua Colangelo-Bryan, was present. Al-Dossary also claims to have been tortured.

Al-Dossary was one of the last of the six Bahrainis in Gitmo to be freed. He was detained nearly two years longer than Shaikh Al-Khalifi, a member of the Bahraini royal family, but rank hath its privileges, as they say.

Omar Deghayes is one of the five Guantnamo detainees with British resident status whose release Britain has just requested. Omar is a former UK law student whose family fled to Britain from his native Libya when he was 10, after his lawyer father was murdered by the Gaddafi regime.

Deghayes also has alleged torture in American custody (he is said to have been blinded in one eye at Guantanamo) and his family released a dossier of his mistreatment.

imageMeanwhile, one Sandra Hodgkinson (pic) has been named as the Pentagon’s Deputy Assistant Secretary for Detainee Affairs and her early assignments have included blackening the names of possibly innocent detainees as they are released, in this case the five being returned to Britain.

Ms Hodgkinson replaced the useful idiot “Cully” Stimson. Cully, you may recall, incurred the wrath of the American legal establishment for his attacks on their “loyalty” in representing Gitmo detainees. The corporate boycott he called for never transpired, and he was forced out.

Hodgkinson previously held the Orwellian title of Deputy to the Ambassador for War Crimes, according to her artless bio.

While the Heritage Foundation and Sandy Hodgkinson were downplaying the possibility of anything amiss in Guantanamo, a Tunisian recently released – or rather involuntarily deported to possible torture – claimed otherwise.

According to Lotfi Lagha, US medics, overriding his Pakistani doctors, amputated his fingers – against his will.

Simple frostbite can have dire consequences when the Pentagon gets involved.