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Roger Fitch Esq
28 May, 2010  
Droning on about targeted killing

Our Man in Washington ... The cynical view is that Elena Kagan suits Prez Obama’s concepts of executive power … Latest thinking from the US Supremes on juvenile and sex offenders … Foreign detainees have no habeas rights … Assassination by drone and the law of war … Roger Fitch reports


imageSupreme Court arguments are over, and the term finishes June 30th. Justice John Paul Stevens’ resignation takes effect at the end of the term.

As soon as the retirement was announced, Republicans began squealing about a “judicial activist” being appointed to replace him even though, these days, it’s more often Republican appointees legislating from the bench.

It’s a touchy subject for Republicans. Just the other day, Goodwin Liu, a nominee for the 9th Circuit, was roughed up by Senate Republicans for having once criticised the Bush administration’s appointment to the Supreme Court of those well-known party stalwarts, and activists, John Roberts and Sam Alito .

Professor Liu is an exemplar of the type of judge Obama is appointing to the judiciary. According to a study, only 30 percent of Obama’s nominees have been “white males”, versus Bush’s 68 percent.

The leading candidates to replace Stevens were those previously on the short list for Justice Sotomayor’s position: Judge Diane Wood from the 7th Circuit in Chicago; Solicitor-General Elena Kagan, former dean of Harvard Law; and Merrick Garland, a DC Circuit judge.

In the end it was Elena Kagan who was selected, and reaction to her nomination varied wildly, mainly because her views are largely unknown. She has never been a judge, and has written very little.

Glenn Greenwald and Marjorie Cohn had comments typical of those from alarmed progressives, while Emptywheel called her “the most unqualified justice in history.”

imageCynics had suspected Obama might choose Kagan (seen here) because of her support for concepts of executive power – e.g. indefinite detention without trial – not readily found in the US constitution or Anglo-American common law.

Newsweek thinks it’s all about Obama’s agenda to abridge human rights … sorry, clarify laws for terrorists.

Conservative law writers like Stuart Taylor are already gloating over a further rightward shift on the court.

In anticipation of the confirmation hearings, the Senate Judiciary Committee has extracted 200 pages of documents and information from Kagan.

The right-wing law group the Federalist Society even ferreted out Kagan’s Oxford thesis for clues to her judicial philosophy.

Justice Stevens, meanwhile, has received nothing but praise in the media, except for a cranky John Yoo.

* * *

The Supreme Court has just decided two significant criminal law cases.

imageIn Graham v Florida, the court liberalised the treatment of juvenile offenders sentenced by state courts to life without parole.

Slate’s Emily Bazelon (pic) comments.

US v Comstock could have more ominous consequences.

In Comstock, the court voted 7-2 to affirm the federal government’s authority to indefinitely detain sex offenders who are mentally ill, relying on the little-used “necessary and proper” clause of the US constitution, corresponding to your constitution’s incidental power in s.51 (xxxix).

Dahlia Lithwick and Marcy Wheeler have more.

As a Cato Foundation conservative observed, “First they came for the sex offenders.”

In the meantime, Obama and now his AG continue to validate talking-points of far right Republicans, be it citizenship, civilian trials, Miranda rights, access to lawyers, or the punishment of criminal misconduct by government officials ostensibly acting pursuant to government policies, e.g. torture and rendition.

Aziz Huq comments on the Miranda controversy in The Nation.

* * *

Two days after a House vote to prevent transfer of Guantánamo inmates to a federal prison in Illinois, the DC court of appeals came to Mr Obama’s rescue, reversing a DC district court decision that some prisoners held by the US at Bagram, Afghanistan, have habeas rights.

In Al Maqaleh v Gates, the court breathed new life into the moribund yet deadly Johnson v Eisentrager, the WW II case used by Bush-Obama lawyers as a handy cudgel to kill habeas for foreigners.

Now, there’s no need to bring the Guantánamo detainees to the US.

The Court of Appeals decision empowers Mr Obama – should he so choose – to substitute Bagram for Guantánamo as an internment centre.

Not only Guantánameros, but presumably everyone else, even those seized (like many at Guantánamo) outside a zone and time of war, can now be held at Bagram and other establishments conveniently located near battlefields.

The court did consider the possibility of government bad faith, but, strangely, found none in Maqaleh.

Scotusblog, plus Opinio Juris, plus Glenn Greenwald have more.

imageThanks to Obama’s appointment of Kagan, the decision will be hard to overturn on appeal.

It’s a retreat from Boumediene, a case decided 5-4 with Justice Stevens (pic) in the majority.

Stevens will now be replaced by Kagan, who would have to recuse in any appeal because, as Solicitor General, she signed the Maqaleh brief.

Without her vote, the Supreme Court would divide 4-4 and an appeal would fail.

* * *

The killing of nameless strangers may be acceptable on a battlefield, but what about extralegal “targeted” killings, such as the current US assassination-by-drone program in Pakistan and (soon) Yemen?

In my post of April 5, I noted that one witness in Congressional hearings on the use of drones, Gary Solis of Georgetown Law School, has classified the CIA’s joystick jockeys as “unlawful combatants”:

“No less than their insurgent targets, they are fighters without uniforms or insignia, directly participating in hostilities, employing armed force contrary to the laws and customs of war.”

Another witness, David Glazier, took this one step further.

Prof Glazier testified that the CIA drone operators, being unprivileged belligerents, are unentitled to PoW status if captured and enjoy no Geneva III protection for their acts.

Crucially, they have no immunity from prosecution under the domestic laws of the place they are located.

Melbourne law prof Kevin Jon Heller agrees.

According to Heller, if remote pilots in the US kill Anwar al-Awlaki, the American imam in Yemen, they will violate the federal foreign murder statute (18 USC 1119).

According to law prof and Harper’s blogger Scott Horton, Obama’s lawyers have been alarmed by the danger to US forces implicit in adopting the Pentagon’s idiosyncratic version of the law of war, now being applied in military commissions.

Other academics continue to weigh in on the illegality of drones, including Notre Dame law prof Mary Ellen O’Connor.

The Guardian calls the new kill-don’t-capture policy the “Obama Doctrine”.