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Roger Fitch Esq
17 February, 2010  
Our Man in Washington

Talk of Supreme Court reshuffle … Judicial appointments in chaos because of senate obstruction … Obama’s Nixonesque management style … Administration confirms it has authority to assassinate troublemakers at home and abroad … Confusion confounds terror trials


imageThe wash-up from the Supreme Court’s Citizens United case (see my last post) continues, with The Los Angeles Times noting that all five justices in the majority were either appointed by Ronald Reagan or worked as young lawyers in the Reagan administration.

Joan Biskupic, the biographer of Justice Antonin Scalia, wonders if the Citizens’ majority will now embark on a pro-business, conservative agenda.

They have the numbers, with no retirements in sight.

There is talk of two “liberal” justices, John Paul Stevens and Ruth Bader Ginsburg, retiring.

Candidates for vacancies on the court are being discussed due to the age of Justice Stevens (90 this year) and the health of Justice Ginsburg.

At present there are no real lefties on the court, and some are calling for the appointment of a “Scalia of the left”, to counter-balance the leader of the court’s right faction.

This seems unlikely under Barack Obama.

Mr Obama can’t even manage to get judges appointed to district and circuit courts.

Slate has a report on the dire state of the federal judiciary, while Politico looks at the history of Republican obstruction of court appointments at both the end of Bill Clinton’s administration and the beginning of Obama’s.

imageThe president’s problems are partly a result of the “holds” on confirmation of his nominees, placed by anonymous Republican senators.

Richard Shelby of Alabama (once a Democrat senator – seen here second left) has blocked 70 appointments (a new record) in his quest for Alabama defence contracts.

Both parties also use filibusters, often just to paralyse incumbent governments, confuse voters and profit in the next Congressional election.

At the Balkin blog, Sandy Levinson wonders why the Senate majority leader puts up with this extortion.

Yale law prof Jack Balkin even sees a constitutional crisis in the practice.

Senator Shelby eventually released all but three of his hostages, but it’s not clear what ransom was paid.

* * *

President Obama’s management style is now being compared to Richard Nixon’s: an inner coterie of unaccountable officials (“the fearsome foursome”) that excludes and humiliates senior government appointees, including cabinet members.

Those who run afoul of this gang of four get the chop, such as the former White House Counsel Greg Craig.

Similarly, the Pentagon has a new Deputy Assistant Secretary for Detainee Affairs, the title of the heavy who oversees military detention – mostly extralegal – at Guantánamo and abroad.

imageMr Obama had filled the job with Phillip Carter, a worthy candidate who believed in civil liberties, but he quit (see my post of January 4) when he realised the detention policies of George Bush would continue.

Carter’s replacement, William Lietzau (seen here), should prove more tractable as he was one of the architects of the failed and unconstitutional Bush commissions.

He’s a former aide of Bush’s disgraced Pentagon General Counsel “Jim” Haynes.

Firedoglake and Scott Horton comment.

Lietzau has his hands full cranking up another unconstitutional prosecution of Omar Khadr for “war crimes”.

The Canadian Supreme Court just ruled again in Khadr’s favour, although it stopped short of ordering his repatriation.

It’s hard to see a valid war crime with which the Canadian can be charged.

He currently faces five offences, but three of them are unknown war crimes and two others don’t apply to Khadr: “murder in violation of the law of war,” and “spying.”

Even if Khadr threw a grenade that killed a US soldier – and that’s disputed in the Pentagon’s records – grenades are lawful weapons and no treachery has been alleged. Nor was Khadr spying when captured (a requirement).

In any case, self-defence is still allowed in war.

Meanwhile, the only civilian terrorist case underfoot – that of Ahmed Ghailani – is proceeding in New York.

Ghailani was held extrajudicially for five years, and the judge could still surprise the prosecution.

* * *

imageIn testimony to Congress, Obama’s Director of National Assessments, Dennis Blair (pic), revealed that “specific permission” was available for the assassination of Americans overseas by the US government if they are “taking action that threatens Americans,” on or off battlefields.

Needless to say, foreigners can be killed at will.

Curiously, none of the mainstream media quibbled over the premise that Mr Obama or his delegates can order citizens killed, without any due process – rather at odds with the 5th Amendment.

Even the Supreme Court’s most conservative justice, Nino Scalia, thinks Americans who qualify as traitors should be captured, tried and convicted of treason, before being shot.

Some are asking what will enter the calculus for this presidential permission.

Could those actions “that threaten Americans” include opposing, or trying to frustrate, the foreign political agenda of the American government?

One of the marked Americans, Anwar Al-Awlaki, is a fiery preacher in Yemen.

Perhaps there’s a Disaffection Index applied to expats to determine their Mortality Quotient, and Awlaki has scored high.

For highly-disaffected Americans, crime-ridden Washington may be safer than, say, Canberra.

Salon’s Glenn Greenwald wonders what’s to prevent a government that regards the whole world as a battlefield from shooting its citizens at home as well.

* * *

imageGreenwald (illo from Salon) recently blogged on the Republicans’ departure from Reagan’s requirement of civilian trials for terrorists.

Perhaps with that in mind, Attorney General Eric Holder has written to several of the thicker Republican senators, explaining why he didn’t classify the underpants bomber, arrested in Detroit, as an “enemy combatant” suitable for the Star Chamber, sorry, Military Commission.

ProPublica has a piece on Holder’s apparent policy.

Although Mr Holder still seems confused on the use of MCs, at least he acknowledges that the Bush experiment – militarising domestic civilian crimes at presidential whim – has been a failure and not supported in the courts.

Nevertheless, Obama is said to be negotiating with Congress to bring back commissions for the 9/11 men, and in an amazing about-face, Holder also hinted he might shuttle back to military commissions.

There’s even talk of redrawing, or withdrawing, rights given to “terrorists” on US soil.

Everything’s negotiable.

As Dahlia Lithwick notes:

“Each time Republicans go to their terrorism crazy-place, they go just a little bit farther than they did last time”, and, “each time the Republicans move their own crazy-place goal posts, the Obama administration moves right along with them.”