It’s been a remarkable fortnight in the US, legally speaking.
The “terrorist” Jose Padilla has been convicted, and his civil suit against the US for torture disclosed.
After an unconscionable time a-dying, the man whose political death has long been predicted, Alberto Gonzales, has resigned as Attorney General.
And the briefs are in for the Guantanamo prisoners whose cases will be heard in the October Supreme Court term, including the case begun by Detainee 002, David Hicks.
The Gonzales departure, however, provided the most relief to the largest number of people. The New York Times aptly summed up his dismal career.
As soon as Fredo handed in his resignation, the DoJ’s Inspector General announced an investigation into his conduct, including an inquiry into the political tests introduced for hiring of staff attorneys.
The White House has floated a list with possible replacements for Gonzales. However, according to The Wall Street Journal, the Democrats may require the appointment of an independent prosecutor to investigate Gonzales as a trade-off for the Senate’s approval of a new AG.
There is also speculation that President Bush may make a “recess” appointment, as he did with John Bolton and other unconfirmable people.
One suggested nominee for AG is the cadaverous Michael Chertoff (pic), who, in common with Fredo, has been identified as a suitable candidate for war crimes charges one day. However, writing legal “opinions” supporting torture didn’t stop Gonzales from becoming attorney general in 2005, so Chertoff’s moral ambiguities may also be overlooked.
As an assistant attorney general in 2001, Chertoff organised the railroading of Detainee 001, John Walker Lindh, when the American was captured in the Afghanistan war. It was Chertoff who prevented the legal assistance to which Lindh was entitled, and swept away concerns about his mistreatment. Democracy Now has taken another look at Chertoff’s stint in Justice.
Chertoff may also have fibbed about his knowledge of interrogation techniques when he was confirmed by the Senate for his position as Secretary of Homeland Security.
Regardless of who becomes the new Attorney General (Solicitor General Paul Clement is acting AG), US News confirms that not all lawyers in the Department of Justice are political thugs: a large number of the appellate attorneys in the department don’t want to be involved in the new Guantanamo appeals in the DC Court of Appeals.
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The audacious assaults on the US legal system by Republican administrations since Ronald Reagan are now beginning to bear fruit. You will recall that Zacharias Moussaoui was sentenced to life in prison for wanting to be part of a terrorist conspiracy that was never proved. Luckily he pleaded guilty.
The Jose Padilla case was more problematic as he is a US citizen and insisted on pleading not guilty, even after three-and-a-half years of lawless imprisonment in a US Navy dungeon, designed to break his will and (perhaps) force a guilty plea.
In his Miami trial for “terrorism” offences, Padilla would have known he was in trouble when his jury showed up in colour-co-ordinated red, white and blue outfits. Once his judge (a Bush appointee) suppressed any mention of Padilla’s treatment in military custody, it seems his fate was sealed.
Jose Padilla may be a disaffected American, and he possibly attended a “terrorist” training camp in Afghanistan, but no evidence was introduced that he ever visited the country or actually trained at any camp.
In fact, the conviction itself was for little more than “thought crime”, as Columbia law prof and Harper’s blogger Scott Horton (pic) observed.
The case was badly reported, with few journalists noting that Padilla had been detained in solitary confinement in a military brig for more than three years before being brought to trial. Media Matters also faulted the coverage.
Marty Lederman of Balkin Blog thought that the Padilla case offered a guide that allowed us to decode the Government’s policy on detention.
Lawyer-blogger Glenn Greenwald probably had the best summary.
After the case was completed, Padilla’s lawyers from his “enemy combatant” days disclosed that they had brought a civil damages case against the US in South Carolina District Court. It’s for the torture and mistreatment that their client says he endured in the naval brig.
The other inmate there, Ali al-Marri (see below), had previously brought such a suit in 2005. Al-Marri’s claim apparently resulted in an end to illegal questioning and an improvement in detention conditions.
The new Padilla lawsuit was filed by Wiggin & Dana lawyer Jonathan Freiman for Yale Law School’s International Human Rights Clinic.
The amended petition includes as defendants Admiral Lowell Jacoby (pic) of the Jacoby Memorandum fame and Michael Mobbs, the Pentagon flunky who authored the dodgy “Mobbs Declarations”.
These second and third-hand hearsay statements were used by the Government in numerous cases for a habeas return, where the US claimed the right to hold detainees based on belief summaries without actual witness evidence.
There are many other, unnamed, defendants who worked at the brig or planned/condoned Padilla’s alleged mistreatment, e.g. medical staff, legal professionals, psychiatrists, interrogators and guards. In fact, there are John Does 1-50, in addition to the usual suspects such as disgraced former defence secretary (and universal defendant) Donald Rumsfeld, and his deputy Paul Wolfowitz.
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The Ali al-Marri case (see my post of August 15) is to be reheard en banc by the 4th Circuit Court of Appeals. Whether the Government wins in the full court, the case will end up in the Supreme Court – but The Washington Post is worried.
In an ambiguous editorial, the Post has once again implied that the Dear Leader must retain his “right” to designate people in the US as Staatsfeinde – enemies of the state; or “enemy combatants” as Mr Bush prefers to call them.
The Post huffed: “This is not – or should not be – a country that simply ‘disappears’ people without hearings.” But the Court Circular seemed to suggest that, if there were some sort of hearing, disappearances would be quite OK.
That would suit retired US District Court judge Michael Mukasey. Mukasey, who heard the original Padilla case in New York, has written an op-ed in the Rupert Street Journal in which he favours national security courts where defendants receive decidedly limited rights.
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Meanwhile, Mohammad Haneef’s Australian lawyers can take heart from the fact that in the US the Bush Administration has begun paying claims for illegal detentions, including this one in Washington State.
Other settlements for false arrests and detentions in the “war on terror” have been reported, including one with the Colorado lawyer Kiko Martinez, who received a settlement last month, according to The Washington Post. In a remarkably understated headline, the Post screamed, “20,000 Detentions in ‘06 Rile Critics”.
Last year the US paid $2 million to the West Coast lawyer Brandon Mayfield (pic). He was held for two weeks by the FBI after it erroneously matched his fingerprints to those found near the 2004 Madrid bombings.
Now a petitioner in Detroit is seeking $9 million damages in a suit arising from a failed terror prosecution where the case was aborted for prosecutorial misconduct.
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George Bush continues to issue astonishing executive orders including a new one on Lebanon – a place I suspect he hadn’t heard of a few years ago – using the International Emergency Economic Powers Act, as well as something called the National Emergencies Act.
The IEEPA is the Act used so successfully on John Walker Lindh.
However, the US military has warned its soldiers to ignore Bush’s order purporting to authorise unnamed “enhanced interrogations techniques” for use by the CIA, and to stick to the Field Manual when interrogating.
Scott Horton has detailed the Pentagon lawyers’ misgivings over Bush’s recent “torture” order.
I’ve been trying to think of a name for these ubiquitous Bush edicts. Many of them have the flavour of a papal anathema or imperial injunction; indeed, of a fatwa. That put me in mind of an early 20th century Americanism, bushwah, which the Oxford American Dictionary defines as “rubbish, nonsense, bullshit”.
Although it derives from bourgeois, it’s a plausible combination of Bush and fatwa: “Today, the President issued a Bushwah” has a certain ring. It could be shorthand for a curse delivered upon some unfortunate target, say the Islamic Republic of Iran, or a citizen Staatsfeind.