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Roger Fitch Esq
5 April, 2010  
Our Man in Washington

Watching legislators pass the health “reform” was not a pretty sight … Easter recess appointments … Morality and legality of drone killings … Government going down like 10 pins in habeas cases


imageMr Obama has succeeded in his overhaul of health care.

Insurance companies are grateful that, thanks to skilful management by Democrat leaders in the House and Senate, the public health insurance option – supported by a majority in both houses – never received a vote.

Watching the legislation pass wasn’t pretty: the Democrats abandoned their own model and passed instead a version of health care that tracked insurance industry proposals and was once identified as Republican.

Under the new Act, insurers, only mildly restrained in their practices, will be handed vast amounts of new business, subsidised by the government.

Antitrust exemptions stay, premiums are unregulated and fines are frivolous.

Drug companies also fared well. The government recently promised not to bargain for lower prices or import cheaper drugs from Canada.

Postponing competition through pay-offs to generics remains legal, for the moment.

It was still too much for the Republicans – they all voted no.

This is the party, after all, where two-thirds believe Barack Obama is a socialist, and nearly as many think he’s a Muslim.

Right away, states with Republican AGs started filing suits to have the new health law invalidated, but it’s unlikely to be found unconstitutional.

* * *

The success with health insurance gave Mr Obama a rare case of spine.

For months, Republicans have been manipulating arcane Senate rules to obstruct confirmation of Obama’s nominees for top government positions.

The president responded with 15 Easter “recess” appointments – his first.

Two appointments were to the National Labor Relations Board.

The Supreme Court recently heard a case testing the validity of NLRB rulings made with only two of five members sitting, and Chief Justice Roberts asked why the president hadn’t made recess appointments.

Meanwhile, time is running out for judicial appointments that might counter the partisan Republicans on the bench.

* * *

imageSince I described (Feb. 17) the aerial assassination policy of President Obama, a congressional subcommittee has been taking testimony on the use of drone attacks in America’s wars abroad.

Unfortunately, the first witness – Peter Singer (pic) – was the military affairs boffin at the Brookings Institution and not the Aussie teaching ethics at Princeton.

Morality aside, the witness Kenneth Anderson felt a legal basis for robotic killing might prove useful.

Dan Froomkin has more.

Surprisingly, Harold Koh, the State Department’s top lawyer, just gave the drones a pass in his address to the American Society of International Law.

Koh was once considered controversial for supporting international law.

Gary Solis of Georgetown Law School meanwhile argues that the operators of drone attacks are unlawful combatants under the laws of war and thus potential war criminals.

* * *

Our side being judged war criminals is also the theme of an article by law prof Jordan Paust on the possible use of courts-martial for “Enemy-al-Qaeda” cases.

Paust notes a good reason to avoid military commissions: the use of these special tribunals could itself constitute a war crime, because the 1907 Hague Convention Respecting the Laws and Customs of War recognizes a customary and treaty-based war crime of declaring “abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party”.

Professor Paust comments:

“Why would the Obama Administration want to set up possible war crime responsibility for military commission judges, military and civilian judges who might review military commission proceedings, and certain members of Congress who had the relevant mens rea when creating the Military Commissions Act?

imageAccording to David Scheffer (pic, Clinton’s Ambassador for War Crimes Issues), the Military Commissions Act seeks to get around this by omitting irregular military commissions from the Act’s list of war crimes.

Prof Paust’s argument was previously put forward by David Glazier (see my post of March 4, 2008).

In the meantime, renewed military commissions begin soon, and Bush’s Convening Authority has been replaced.

Law.com has an update on the commissions and the Christian Science Monitor reports the latest on the Guantánamo Bar Association.

What the charges will be is unclear.

The Obama administration now concedes that “material support for terrorism” is not a war crime, but as Prof Scheffer points out, “conspiracy,” a favourite of Congress, is also not a war crime.

* * *

“Material support” was at stake in the recently-argued appeals of Salim Hamdan and Ali Hamza Al Bahlul at the Court of Military Commission Review.

Briefs are here and here.

imageA decision is pending, and the result could affect commissions, as well as David Hicks – “convicted” of material support.

The debate about where to try the 9/11 Gang continues.

The resident bush-lawyer at the Brookings think-tank, Ben Wittes (pic), suggests indefinite detention with no trial at all.

Professor Glazier also has a view on the venue.

* * *

In Washington, district court judges continue to hear the long-delayed habeas petitions of Guantánamo detainees. Some have been pending eight years.

In one contentious case, Judge James Robertson has ordered detainee Mohamedou Slahi released.

It’s the case where the military commission prosecutor refused to bring charges, due to torture.

imageRobertson’s (pic) decision quickly became politically damaging to Obama, and DoJ will appeal.

The government has now lost 34 of 46 habeas hearings.

The number should be greater, but as I reported November 30, the Obama administration has adopted the Catch-22 of “clearing” detainees for release whenever judges seem poised to free them, thereby claiming they are no longer subject to the court’s habeas jurisdiction.

The case I described was that of Abdul Al-Ghizzawi, a client of Chicago lawyer Candace Gorman.

Now, months later, Al-Ghizzawi has been sent to a foreign country.

Ms Gorman, mindful of her previous skirmishes with the court’s protective order, posted a video on her website of Ray Charles singing his most famous song, a song that has been taken to heart by an American state.

As soon as confused legislators in Atlanta heard the news of the latest transfers, they rushed to bar detainees from their state.

The Miami Herald has more.