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Roger Fitch Esq
1 September, 2006  
Our Man in Washington

Government not doing all that smoothly in the eavesdropping cases as judges attack secrecy pleadings … Chinese Muslims lost in Guantanamo … When Ruddock complains about appeal delays in the Hicks case, remember it is the administration that is appealing

imageThings are hotting up in the telecommunications eavesdropping cases. There are said to be several dozen cases pending around the United States in various federal courts where telephone companies and/or the National Security Agency as spymaster have been sued for illegal (“warrantless”, as the newspapers prefer) surveillance of the phone calls and emails of tens of millions of Americans.

At least one case has been won by the government at the first hurdle with the Reynolds (state secret) defence, which the government deploys on its own behalf as well as that of the rogue telecoms.

This was the case in Chicago brought by the ACLU (Terkel v AT&T). Still very much alive are the Hepting v AT&T case in California, and the CCR (Center for Constitutional Rights) case in New York.

The government had the bright idea to ask the Judicial Panel on Multidistrict Litigation to consolidate all the cases in the Bush-friendly District of Columbia, but it was not to be.

The panel met and, to the Bush administration’s extreme discomfort, has assigned the cases to the very California court which ruled against the government in Hepting. Scotusblog has the report, and the order is here.

Judge Vaughan Walker, who will be hearing the cases, ruled in Hepting that the “secrecy” defence could be deferred until evidence is taken. The Bush administration, it seems, is beginning to find the talismanic “State Secret” defence of fading effect.

imageIn Detroit it got even worse for the Bush Gang. District Court judge Anna Diggs Taylor (pic) actually threw out the government’s secrecy defence and ruled on the merits for the petitioners in ACLU v NSA. In issuing an injunction she did what I have dared not. She called the president of the United States a “creature”.

The context? She was simply calling the president’s attention to a fact he had forgotten, i.e. he is a “creature of the Constitution”. Moreover, he had “blatantly disregarded” the Bill of Rights.

Great stuff. I just hope it isn’t a reversible judicial error to use “blatantly” when alluding to the actions of a godlike personage.

Judge Taylor went on to observe that, “There are no hereditary Kings in America and no powers not created by the Constitution”.

Predictably, The Washington Post sneered at Judge Taylor’s decision, while The New York Times applauded it.

There were, however, many justifiable criticisms of Judge Taylor’s opinion – see here and here and also Balkinization for August 18-19.

Many noted Judge Taylor’s failure to bolster her opinion with a reference to the Hamdan case. The Supreme Court in Hamdan clearly indicated that the AUMF (Authorisation to Use Military Force) for Afghanistan was not going to override existing law by implication, as claimed by the Bushists. The principle seems the same whether it is the Geneva Conventions or the Foreign Intelligence Surveillance Act.

While Attorney General Alberto Gonzales is still claiming that the AUMF repealed the Foreign Intelligence Security Act so far as presidential “war powers” are concerned, Judge Taylor went even further and found the NSA violated the Fourth Amendment (searches and seizures).

Her decision seems right – the crime after all was admitted – but it may have a tough time in her circuit’s conservative Court of Appeal.

* * *

Speaking of Hamdan, the importance of that case for David Hicks has now reached Australia.

Hamdan touched on the famous imperial decree of George W. Bush, the one where “The Decider” made himself a “competent tribunal” for the purposes of the Geneva Conventions. Nevertheless, as Judge Robertson memorably said imagein the District Court decision, “The President is not a tribunal”.

Hamdan concerned the resulting refusal of Bush to provide Article 3 military commissions to “Al-Qaeda prisoners” such as Hamdan himself, but Bush purported to make the same conclusive presumption in respect of David Hicks and everyone else on the “wrong” side in Afghanistan. No one, Al-Qaeda or Taliban (or innocent civilian) was made a “prisoner of war”.

Major Dan Mori (seen here) the detailed military counsel for David Hicks, has been carrying the news around Australia, leaving a trail of admirers in his wake in Sydney, Canberra and elsewhere.

* * *

Back in the news are the Chinese Uighurs who have been illegally detained (by the government’s own admission) in Guantanamo and then – some of them – secretly deported to Albania in violation of court orders, legal courtesy and common decency.

You will recall my posts about the now deported Uighurs on March 14 and May 23.

These five men are in Albania, where they have been granted refugee status, although they would still prefer to be in Canada or even the US. Their existence and plight was belatedly noticed by The New York Times the other day. A few days ago, the DC Court of Appeals dismissed their case.

Other Uighurs, similarly situated, remain in Gitmo. Their hopes have been hanging on the Kiyemba case. Kiyemba is the Ugandan from Britain, since released and deported against his will to Uganda, who acted as next friend for several of the Uighurs in order to get their habeas before the court in Washington.

In addition to sundry harassment (the government blocking the men’s legal representation), the Kiyemba Uighurs, like other habeas petitioners, have been fighting a US effort to bar their habeas cases.

The government seeks to do this by enforcing an order staying all 200-odd habeas cases, while it argues – for the third time – its Court of Appeals challenge to Judge Green’s decision in Al Odah (Hicks).

That case has now dragged on for over 18 months, with no end in sight. Meanwhile, the petitioners whose cases are not part of the appeals are also blocked from proceeding, even those the government concedes are “innocent”.

As the Uighurs’ brief eloquently states:

“Petitioners mean to prove that they are not, and never were, enemy soldiers; that they are not, and never were, enemies of this nation; that they engaged in no combat, consorted with no warriors, and participated in no war; that they never contemplated, plotted or carried out a terrorist act; and that they fall within no ‘enemy combatant’ definition, however broad. In short, petitioners intend to show that their imprisonment is a monstrous injustice.

“They are blocked from this making this case by the stay orders. The stays have prolonged their illegal imprisonment. They continue to be cut off from family and friends, from news of home and the world, from human kindness, and from freedom itself, because of the stays. They pass their days in cages because of the stays. The stays are not ‘case management orders’. They are not ‘administrative.’ The stays are as hard as iron, and as sharp as razor wire. The stays are prisons.

“The district courts’ refusal to let petitioners stand up in a court of law and prove their innocence was error. After Rasul v Bush, 542 US 466 (2004), there can be no debate as to whether a hearing is required. After nearly five years in a military prison, petitioners can no longer be denied a fair trial. Because the stay orders prevent the district courts from hearing these cases, they must immediately be overturned.”


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