Rich pickings to be had from new season at the Supremes ... All aboard for questioning on the high seas ... NY trials for alleged embassy bombers ... What to do with all the evesdropped information? ... IT problems for defence counsel at Guantánamo ... Our Man in Washington, Roger Fitch, reports
Undeterred by the government shutdown, the Supreme Court began its October term on schedule, as corporate counsel slavered over fresh gifts they might be about to receive from a friendly majority.
The sifting of 2000 petitions in the "cert pool" began, and Dahlia Lithwick bleakly previewed the term.
More here on cases to watch.
First off the block was the McCutcheon campaign finance case, which could give rich individuals carte blanche to spend millions on a political party over a two-year federal election cycle.
Scotusblog reported the oral argument here.
In anticipation of the Supreme Court's likely decision, a 2nd Circuit panel enjoined the enforcement of a New York law that limits spending, fortuitously benefiting the underdog Republican candidate for mayor.
Soon after came the beggar-the-defendant case, i.e. pre-trial seizure of assets in a criminal prosecution, but at oral argument the court disappointed, appearing less heartless than the government had hoped.
The case is Kaley v US.
The court has also agreed to define mental retardation for the benefit of recalcitrant southern states who continue to execute those so affected despite Supreme Court precedent forbidding it. The case is Hall v Florida.
In a further refinement of Kiobel, last term's Alien Tort Statute decision, the court will decide if the presence of US subsidiaries confers jurisdiction for domestic ATS actions against their foreign parents.
The New Yorker previews another forthcoming blockbuster, NLRB v Canning, testing presidential power in recess appointments.
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US Embassy Nairobi: 1998 truck bombing
US special forces barged into Libya in October to abduct Nazih Abdul-Hamad al-Ruqai (Abu al-Libi), dreaming – perhaps - of the First Barbary War (1801), a romantic Libyan adventure of the early republic.
The government had long ago indicted al-Ruqai for "surveillance of the US Embassy in Nairobi and helping to develop photos that were later used to plan a massive truck bombing" thereof in 1998.
The US - finding it inconvenient to provide an indicted fugitive with the arrest rights he's entitled to under US law – turned to the war model, and took Mr al-Ruqai away for some serious questioning on the high seas, war law be damned.
Capture-and-ship-detention was done with David Hicks and John Walker Lindt, actual war prisoners, but it still offends the Geneva Conventions.
It's odd to invoke war to justify detention for the East Africa bombings, as there was no war in 1998, but the Bush administration previously pretended it had lawful war jurisdiction of another of the accused bombers, Ahmed Ghailani, before handing him to the CIA for two years of torture.
He was at Guantánamo when Mr Obama relented, and had him tried in a lawful court in New York.
Judge Lewis Kaplan will hear the case of al-Ruqai and two other accused embassy bombers already held in New York.
Kaplan previously heard the case of Ghailani, whose lifetime conviction was just upheld, more here.
Libya demanded the return of its kidnapped citizen, but he's now in New York, and Libya is underwriting his defence.
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Ladar Levison: tech company CEO who didn't play ball with the NSA
The NY Times reported the fate of one of the tech company proprietors who stood up to the NSA, Ladar Levison. Wired has more.
The only telecom CEO who refused to play ball with the NSA ended up in prison, but he's now been released and is talking.
The latest NSA revelations concern the spy agency's role in President Obama's reckless assassinations, sorry, "targeted killings", and the NSA's eavesdropping on 35 top world leaders.
So much illegally-collected information, but what to do with it? Nothing good, it turns out.
Recently the Department of Justice announced it was considering notifying defendants when there are warrantless taps in criminal cases and it was hailed as a return to the rule of law. More here.
It was soon found to be something quite different, a direct attack on the Warren Court's interpretation of the Fourth Amendment. More here.
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Mr Al Bahlul's reply in the en banc appeal of his Guantánamo conspiracy conviction has been filed in the DC Circuit Court.
Linda Greenhouse and David Glazier have comments, and Lawfare has an al-Bahlul wiki.
Meanwhile, at that branch of American jurisprudence known as Guantánamo Bay, defence counsel continue to encounter IT problems, surveillance, interference by "intelligence officers" and more.
Guantánamo lawyers have found that WiFi at the local Starbucks is more secure than the Pentagon system.
The "9/11" military commission creeps on at Gitmo. In motions argued during October, defence counsel attempted to invoke the Convention Against Torture on behalf of their clients. Lawfare has more.
Torture defence requires documents to be declassified
A torture defence requires that documents about torture - including the defendants' own statements - be declassified, and defence counsel are asking that Obama himself do the job.
At the motions hearing on CAT, the Pentagon prosecutor artlessly responded that any torture had been prompted by the exigencies of war, though the torture treaty clearly states ...
"No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture."
At the end of the week the Chief Prosecutor's review of the motions was published at Lawfare.
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Fahad Hashmi: the haberdasher "terrorist" Law prof Steve Vladeck recently wrote a New Republic article entitled, Unlawfully Detained by the US Government? Don't Bother Suing, and noted that all efforts of detainees for civil court justice had failed, even in the liberal 9th Circuit.
It's worse, of course, in the criminal courts.
Many miscarriages of justice have occurred in the "war on terror" as it has played out in the once-vaunted US "justice system", though it's still a better option than Guantánamo.
Fahad Hashmi, an American citizen, is a poster-boy for such injustice.
He's serving a 15 year sentence in a supermax federal prison for material support for terrorism.
His offence? Carelessly allowing the storage in his London flat of waterproof socks and sleeping bags that were destined - by someone else - for the Taliban (see post of May 17, 2010).
Another terrorist haberdashery ring has now been smashed, with the arrest of two men in New York who allegedly plotted to provide warm clothing to the Taliban during the chilly Afghan winters.
One of the defendants - again, an American citizen - was lucky he didn't get charged with treason.
After all, a warm Taliban could be an existential threat to the United States.