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Roger Fitch Esq
4 January, 2010  
Our Man in Washington

The Justice Department under Eric Holder is in crisis … Blackwater mercenaries immunised from prosecution for Iraqi shootings … DoJ holds to the Bush terror line … Roger Fitch reports on the latest cases stirring Washington


imageThe Obama administration continues its half-hearted effort to clean up the mess left by its predecessor, while covering-up some of the Bush Gang’s crimes (e.g. torture, see below) or explaining them away as careless oversights.

So it is that 22 million emails “lost” from the Cheney-Bush White House servers have now been fortuitously found by contract IT people.

With government employees, it’s another matter.

Mr Obama has been unable to release many government documents because his own officials fail or refuse to comply with administration directives.

Sadly, there is little leadership at the Justice Department.

Attorney General Eric Holder seems ineffectual, and his second in command just quit.

Worse, the nomination of Dawn Johnsen as head of the important Office of Legal Counsel has been blocked by Republicans and is now dead.

Johnsen, an eminent law professor and former official in Clinton’s DoJ, was deemed too liberal.

What’s now emerging is the (continuing) incompetence and/or intransigence of DoJ staff lawyers, many of whom are holdovers from the Old Regime.

That’s why it was no surprise that the Bush administration’s calculated scheme to immunise Blackwater mercenaries from criminal prosecution in the Nisoor Square shootout in Baghdad has worked a treat.

imageAs intended, Obama’s lawyers attempted to use the tainted statements purposely required by Bush’s State Department officials from the guards involved and all went to script when the case came to court: Judge Ricardo Urbina (pic) dismissed the indictments.

The Los Angeles Times and Al Jazeera have more.

In other cases the government is delighted to accept the poisoned fruits of Bush counter-terrorism policy, such as the recent 2nd Circuit decision in which an en banc court decided the Canadian Maher Arar had no case against the government for his abduction and rendition from New York to Syria for torture (see my post of November 13).

Arar’s lawyer, David Cole, comments here.

Meanwhile, after withdrawing its direct defence of John Yoo in the civil damages case of Padilla v Yoo, the Obama administration has now filed an appalling amicus brief in Yoo’s support.

Scott Horton and Emptywheel have more, and Jonathan Turley compares Nuremberg cases.

At the Supreme Court, the government filed a shameful brief opposing certiorari in Rasul v Myers, the East Coast counterpart to the Yoo case.

As reported by Daphne Eviatar, the government’s claim was even more outrageous than that of the Bush administration:

”[I]t’s not just that former detainees can’t sue Bush administration officials for torture because the law wasn’t clear back in 2002 or 2003, but the Obama administration is arguing also that there is no fundamental right not to be tortured, and therefore any government official in the future could similarly claim to be immune from a lawsuit for torture.”

imageIt’s the same position the Obama administration has taken in a civil case arising from Guantánamo suicides, Al-Zahrani v Rumsfeld, as Ms Eviatar (seen here) notes.

The plaintiffs’ reply brief is here and Scotusblog comments here.

The government’s outlandish arguments were apparently successful although the precedential value of the certiorari denial is limited.

Why are Obama’s lawyers working feverishly to shut down all civil cases which might involve torture?

Slate’s Dahlia Lithwick notes that the statute of limitations for the crime of torture is eight years and will start to run as early as the spring of 2010.

* * *

The habeas cases of Guantánamo detainees are proceeding slowly.

The government has nominally lost 32 of 41, and in additional cases the government has abruptly repatriated detainees to avoid certain loss.

Just-released orthopaedic surgeon Ayman Batarfi is a good example.

In the absence of leadership, the DoJ “national security” legal team handling these cases seems to be drawn by default from the still-employed dead-enders and career offenders from the prior administration.

Not infrequently, this results in findings of contempt by DC judges, e.g. the case of Mohammed Al-Adahi, another Yemeni now ordered released.

In the Al-Adahi case, the Pentagon was cited for contempt by Judge Gladys Kessler, who had directed the government to videotape Al-Adahi’s testimony at his (successful) June habeas hearing.

Instead, the Pentagon simply ignored one of the senior district court judges in Washington.

The Obama administration meantime repatriated Fouad al-Rabiah to Kuwait, after flouting Judge Colleen Kollar-Kotelly’s release order for months.

Al-Rabiah was an original petitioner – along with David Hicks – in the 2004 Supreme Court case of Rasul/Al Odah, and had sued the secretary of defence and camp commandant for contempt of court (see my post of October 28).

He’s one of four so-called war criminals charged under the Military Commissions Act 2006 who have now been repatriated.

* * *

There’s renewed activity at the Guantánamo military commissions.

The Pentagon is trying to shore up Bush administration charges in a futile effort to make them constitutional.

In the al-Qosi case, Judge Nancy Paul allowed the government to drop the words “alien enemy combatant” and substitute “unprivileged enemy belligerent”, used in the Military Commissions Act 2009.

It’s a small gesture towards the previously-distained Third Geneva Convention.

One military commissions defendant, Mohammed Kamin, has filed suit in the DC Court of Appeals to stay his military commission.

The government’s response is here.

* * *

imageWhile the 9/11 criminal case in New York is still brewing, the other Manhattan case involving a former Gitmo prisoner, Ghailani, could be dismissed due to Bush administration misconduct.

Ahmed Ghailani (pic) was illegally detained and mistreated by the Bush administration for years while under a Clinton DoJ indictment in New York.

When Ghailani was charged in a military commission, however, the media ignored the government misconduct and speedy trial issues (see my post of June 2, 2008).

These have now attracted the attention of The New York Times.

Ghailani’s memorandum for dismissal has a chilling exhibit describing the CIA torture program.

Emptywheel has more.

imageThe Times explains Obama’s resort to a military tribunal for Abd al-Rahim al-Nashiri: it’s not just about torture, but also hearsay.

Interestingly, Phillip Carter (pic), Obama’s Deputy Assistant Secretary of Defence for Detainee Policy, has resigned.

Carter publicly opposed the military trial of Ghailani before he joined the government (see my post of June 2, 2008) and Al-Nashiri’s position is nearly identical.