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Roger Fitch Esq
3 August, 2006  
Our Man in Washington

New US ambassador to Australia misled Senate about tobacco case … White House dreams up a freshly flawed plan for Guantanamo trials … Senate Judiciary Committee busy as Bush administration seeks to “shield” itself from war crimes … Latest news on Hicks’ habeas case

imageThe Senate has confirmed the president’s choice for ambassador to Australia, Robert McCallum (seen here), and he’s due in Canberra in August.

The former “tobacco law firm” partner has been cleared of any wrongdoing while he was a senior official at the Justice Department. He was accused by one of the lawyers running the government case of improper interference. Sharon Eubanks claimed that, after the Justice Department staff lawyers had presented their case, they were ordered by McCallum, a political appointee, to reduce the amount of damages sought from $US130 billion to a mere $US10 billion.

The case was commenced during the Clinton administration and judgment is now breathlessly awaited.

Maybe the Bush administration should call on the ambassador’s expertise, one last time, to improve the mooted settlement of the American Indians’ long-running claim for $US27 billion in unpaid royalties and rents. McCallum had oversight of that case at Justice and there’s now talk of the Indians accepting $US8 billion.

Surely the government can do better than that, having managed to prise off the case the Indian-friendly Judge Royce Lamberth.

Anyway, Sharon Eubanks is raining on the victory parade. She now works for a private group called Citizens for Responsibility and Ethics, which you might imagine does a flourishing trade in Washington.

She claims that McCallum misled the Senate about the reasons for slashing the requested damages in the tobacco litigation.

* * *

With the important business of ambassador McCallum out of the way, the Senate turned to weightier matters, e.g. the Armed Forces Committee hearings on possible legislation to allow “war crimes” prosecutions of “terrorist suspects” held in Guantanamo and, presumably, elsewhere.

The first Senate witnesses were the top legal officers of the Army, Navy, Air Force and Marine Corps, followed by civilian witnesses.

Essentially, the judge advocates general testified that they wanted the Uniform Code of Military Justice and its Courts Martial procedures as the template. The implication was that they had opposed the “presidential” military commissions but had been overruled by the civilian “lawyers” and Pentagon officials of the Bush administration.

Jack Balkin is not confident that the Geneva Conventions’ Article Three will be respected in the new legislation, as required by the Hamdan case. Nor is Michael Dorf at FindLaw’s Writ.

Nevertheless, the Bush regime continues to push for non-conforming military commissions remarkably similar to those the Supreme Court struck down. Article Three Geneva be damned!

A draft Enemy Combatant Military Commissions Act is now being circulated by the Bush administration. It is a disturbing document, writing into law such executive inventions as “enemy combatants”.

As Human Rights Watch notes, the draft Bill ratifies presidential detentions, rewrites the Geneva Conventions and for the first time would apply this proposed law to US citizens.

“The draft legislation would authorize detaining people picked up anywhere in the world, including US citizens, and holding them indefinitely without charge if the administration unilaterally deems them to be ‘associated with’ or ‘part of’ al-Qaeda or the Taliban”.

See the full report from Human Rights Watch here.

There’s good and bad news for David Hicks in the draft. As he is not an American, he cannot be charged with “aiding the enemy”, as he (and a Canadian) were in the illegal commissions. However, despite the Hamdan decision, “conspiracy”, unknown to the law of war, is declared to be a war crime. Dave Glazier has posted a good blog on the Bill on Intel Dump.

* * *

In a few days the Senate Judiciary Committee is to open hearings on “Authority to Prosecute Terrorists Under the War Crime Provisions of Title 18”. That should be interesting.

So far, only one person (an American) has been widely implicated in violations of the US War Crimes Act. He was identified in the Hamdan case, where the Supreme Court found that George W. Bush had violated Common Article Three of the Geneva Conventions. Such violations, Justice Kennedy pointed out, are:

“By Act of Congress … considered ‘war crimes,’ punishable as federal offences, when committed by … United States nationals.”

The Bush administration has taken the hint. In the light of Hamdan, the regime is now asking for an amendment to Title 18 to protect the government and its military mates from war crimes charges.

The Washington Post, which Gore Vidal describes as “the court circular”, delicately referred to it as a “shield”.

imageThe Senate Judiciary Committee has also been busy interviewing another person who one day may attract the attention of prosecutors enforcing Title 18 – Defence General Counsel William J Haynes II (seen here). Haynes has been testifying before the Senate Judiciary Committee, where he’s seeking confirmation for the 4th Circuit Court of Appeals.

Bush has been trying to get Haynes appointed to the Court of Appeals for a few years now. The problem lately has been the Haynes “torture memos” that have come to light, the ones where he defined torture as the pain comparable to that accompanying organ failure or death.

Haynes’ answers to the senators’ questions seemed artlessly damning. At one point he noted with pride that he had rejected all but seven “harsh techniques” he had been asked to approve in the “interrogation” of Mohammed Al-Qahtani.

This was a surprising admission, as Al-Qahtani is the one detainee for whom a torture log has been published, by Time Magazine.

Curiously, it was Al-Qahtani in whose interrogation Secretary Rumsfeld reportedly took a hands-on interest. It’s even rumoured that recorded video conferences exist between the secretary and Guantanamo’s General Geoffrey Miller in which the interrogations of recalcitrant detainees were discussed, Al-Qahtani included. Jack Balkin has more.

* * *

The international infamy of Guantanamo “evidence” was reinforced this past week when the highest court in Spain quashed a six-year sentence given a former Guantanamo detainee who had been extradited to Spain for trial.

The Supreme Court found that the lower court had failed to give the “Spanish Taliban” a presumption of innocence and had used evidence collected at Guantanamo that should be declared totally void and, as such, non-existent.

At the same time, Kuwait’s highest court was upholding – on grounds of insufficient evidence – the release of five Kuwaitis who, with Hicks and Habib, were part of the Rasul/Al Odah decision of the US Supreme Court and had been tried by Kuwait upon their return.

I suspect the evidence against them also was tainted by Guantanamo tactics.

And in the UK, the families of three British permanent residents who are in Guantanamo are pressing their appeal to require the Blair government to make representations on their behalf. Their lawyer is arguing that Britain must do so to protect them from torture – in Guantanamo.

The same argument of possible torture or mistreatment has been put forward by British citizens resisting extradition to the US. Babar Ahmad, for instance, fears he could be declared an “enemy combatant” and sent to Guantanamo for running websites that raised money for Chechen rebels. His case has just been argued in the High Court.

Meanwhile, a well-known group of Guantanamo graduates, the Chinese Uighurs, have finally been granted asylum in Albania, a place they never wanted to go and to which they were taken in violation of court orders and undertakings that had been given their lawyers.

But even Albania looks good after Guantanamo.

* * *

David Hicks’ case also is back in the news. Judge Joyce Hens Green’s opinion of January 2005, which vindicated Hicks’ right to habeas, has been under appeal by the government and argued twice. Now it is to be argued again, in the light of the Hamdan decision. The briefs are due by mid-August.

It does seem that Guantanamo and the deportment of American troops there and elsewhere is shaping up as the greatest public relations disaster of any American government in living memory.

But progress is being made. The Pentagon has asked US soldiers (in Iraq) to stop posting “combat videos” on the internet. As The New York Sun reports:

“Defense officials believe they could be interpreted as portraying the military as unsympathetic to Arabs and obsessed with barbarism.”

Quite so.


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