Matt Apuzzo Pushes Back

If Matt Apuzzo doesn’t watch out, he’s going to be given DOJ’s silent treatment, as TPM once was. It seems Apuzzo (who covered the Libby trial) was none too happy being told that the "press conference" DOJ had organized to talk about the Boumediene decision was totally off the record.

Justice Department media representatives set up a briefing with department lawyers, but insisted the question-and-answer session be off-the-record. They acknowledged it was an unusual demand, but said they couldn’t discuss the decision because they were still reviewing it.

But that meant that nothing from the briefing could be used — not even comments from the obligatory nameless Justice Department officials who usually appear in such stories. Note to readers: You didn’t miss much.

That’s because Associated Press reporter Matt Apuzzo quickly objected, saying the off-the-record rule "does nothing to help anybody understand anything."

When he said he would consider the discussion on the record, he was told he should get off the call. Apuzzo refused, saying "there’s just no reason for this to be an off-the-record call." A conference call mute button prevented 40 other reporters from chiming in.

But Justice Department officials wouldn’t budge and the call was cut short. A follow-up call was hastily rescheduled with a warning: "If you are not able to accept the off-the-record ground rules, please do not join the call."

Without explanation, officials appeared to relent by issuing a terse statement — eight hours after the ruling came down.

Good for you, Matt.

The big story–as Taylor and Youssef point out–is that this nation’s highest ranking lawyers, when faced with a resounding slapdown from the highest court in the land, could do nothing more than pout.

Remember when I speculated why Paul Clement, who left just 10 days ago, might not want to stick around? You think maybe he knew how pouty folks at DOJ were going to get when they got pwned by SCOTUS?

75 replies
  1. JThomason says:

    Maybe they just didn’t have the stomach to explain why Kennedy spent the fist half of the opinion lecturing the executive on the limitations of his power.

  2. peterboy says:

    if the AP reporter decides to actually act like a reporter, will the NYTimes and LATimes and WAPOST follow?
    this could be a breakthrough for freedom of the press, cause what we had up until now was lapdogs all around….wags tail.

  3. GeorgeSimian says:

    What reason could there be? Why get a message out if it can’t be gotten out after it’s said? Why even bother?

  4. sojourner says:

    I wouldn’t exactly call it a torrent, but there seems to be a lot more pushback happening against the chimpanzees who thought they had all the angles figured out. Bravo to Matt Appuzo for having the cojones to call “BS” on what these people were trying to do.

    There still seems to be this attitude that they have to ‘protect’ the Chief Chimp’s legacy or something… or maybe they are trying to protect themselves from the coming avalanche, and distance themselves from the stench of this administration.

    Somehow, I don’t think there is enough soap to wash it off…

  5. phred says:

    You know if the other 40 reporters joined Matt in his revolt, then the DoJ (and the rest of the executive branch) couldn’t play these stupid access games. Thanks Matt for playing hard ball. Now lets see of the rest of the press corps decides they want to play in the majors or whether they prefer T-ball…

  6. MadDog says:

    I like this part from that terse DOI (Department of InJustice) statement:

    While we disagree with the ruling, it is important to note that the Boumediene case did not concern military commission trials.

    Not so fast DOI! You might want to read the tea leaves a little more closely. As I said over at Balkinization in a comment on a Marty Lederman post:

    I would add one more thing that the Supreme Court has “telegraphed” which is that at least a 5-4 majority is not persuaded that the existing GTMO detainee Military Commission trial structure is anything but a “kangaroo court”.

    My inference for this assertion comes from the following passage that’s found on page 7 of the syllabus portion of the pdf:

    “Petitioners identify what they see as myriad deficiencies in the CSRTs, the most relevant being the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant. At the CSRT stage the detainee has limited means to find or present evidence to challenge the Government’s case, does not have the assistance of counsel, and may not be aware of the most critical allegations that the Government relied upon to order his detention. His opportunity to confront witnesses is likely to be more theoretical than real, given that there are no limits on the admission of hearsay.”

    Though this speaks explicitly to the CRST stage of the process, one logically and easily sees this also as foundational to the actual Military Commission trials.

    This seems to “telegraph” to the Administration that the Military Commission rules that rely on upon things like secret testimony, hearsay, inability of the defendant to confront witnesses are not likely to pass muster in the eyes of a 5-4 Supreme Court majority.

    And this doesn’t even address what that same 5-4 majority thinks of things like defendant admissions as a result of the Adminstration’s “enhanced interrogation techniques”.

  7. JThomason says:

    Lest my research, establishing my rolling ignorance go to waste:

    It can be pronounced as “owned” or as “poned”, with both pronunciations being correct. In some cases, you will even hear it pronounced as “pawned”. “Pwned” means “to be controlled against your will”, or “to be defeated by a superior power”. You might also hear the expression, “pwnage”, which is the noun version of “being pwned”.

    This “pwn” expression originated in the 1980’s from the word “owned”. It was used to describe when a hacker would take remote control of a server or another computer. With today’s MMO games (massive multiplayer online games), the term “pwned” has now became a way to gloat in one’s victory over another player. Conversely, pwned is an expressive way to say that you yourself have been defeated by another player.

    Net for beginners.

    • phred says:

      Thanks! I really appreciate that. While I understood the meaning (and even the source), I never ran across any pronunciation guidance. I feel much better now…

  8. drational says:

    Terse statement makes it clear the fallback position is the already underway trials.
    KSM is toast.

    “While we disagree with the ruling, it is important to note that the Boumediene case did not concern military commission trials. Boumediene involved a challenge to the procedures that Congress and the Executive have established to permit enemy combatants at Guantanamo to challenge their detention during ongoing hostilities. Those enemy combatants who have been charged by a military commission with war crimes are afforded numerous additional protections in connection with those trials. Military commission trials will therefore continue to go forward”

    • skdadl says:

      Terse Statement is fascinating, isn’t it? Perverse, but fascinating.

      Apart from the fact that it is shameful for a justice department to issue such a statement through a PR guy, that sounds pretty defensive to me. So the DoJ takes sides? I thought they weren’t supposed to do that. But since they are taking sides, it sounds as though they know that their show trials could be toast too, or at least that they are not going to have the PR value the admin expected. We can help to make sure that that is true.

  9. MadDog says:

    Remember when I speculated why Paul Clement, who left just 10 days ago, might not want to stick around? You think maybe he knew how pouty folks at DOJ were going to get when they got pawned by SCOTUS?

    And anyone who thinks that the White House didn’t get a heads-up ahead of time from their pal Scalia, I’ve got oceanfront property in Phoenix to sell just to you.

  10. Jonathryn says:

    How in the world can you give an off-the-record spiel to what, forty, forty reporters? And if only one of them was actually willing to call the sham what it was, what does that make the other thirty-nine? Cowards. Rank cowards. What an utterly ridiculous, childish group of junior high school-variety morons–for suggesting these ground rules, and then accepting them. And this has been going on since January 2001. How could you possibly get any materials for real journalism from such a “briefing” when next to none of it is verifiable? What a farce!

  11. greenbird4751 says:

    i’m going to have to polish my vocabulary. this week has been spectacular with posts and comments and brain-stretching (mine). all i can do is praise.

  12. MadDog says:

    Shorter Supreme Court to John Yoo: “John-boy, you’d make a shitty lawyer. Don’t come back here no more.”

    Shorter Supreme Court to David Addington: “Only John-boy is a shittier lawyer than you.”

    Shorter Supreme Court to Deadeye: “You wouldn’t even make a shitty lawyer.”

    Shorter Supreme Court to Junya: “Shit! And we made you President? Shit! We must’ve been crazy! Shit!”

    • pdaly says:

      Serves the Supreme Court right for trying to take an election away from the hands of the people. Separation of powers and all.

    • rxbusa says:

      yes and remember…it was a deeply divided court that made the decision. Exactly the same deeply divided SCOTUS decision count that made him president…to our detriment I might add.

  13. pdaly says:

    Supreme Court reminds me of the Ents in the LoTR trilogy.
    Take forever to discuss things and are slow to act in the face of war and destruction–until it is their own legerdemain being invaded.

  14. pdaly says:

    Will the Supreme Court have any comment about Pres. Cheney’s ‘continuity of government’ plans which, regretably will not include (I’m guessing) any of the 5 court memeber voting to uphold Habeus today.

  15. MadDog says:

    The CBS News site has an excellent Opinion piece on today’s ruling:

    Four Strikes, You’re Out

    …This is (by my count) the third or fourth time I have written this very column – each time after the Supreme Court has risen up and struck down another kangaroo-court scheme to get the detainees convicted as quickly and as quietly as possible. Already the Supreme Court is coming under fire from administration apologists for siding with terrorists even as we wage war on terrorism. But that’s plain nonsense. The Court is doing what it is supposed to do. And history will judge it and the five Justices in the majority accordingly; as bulwarks against bad ideas and unfairness drummed up by the John Yoos and David Addingtons of the world…

  16. posaune says:

    ok, EW, I can’t help it — you’ve outdone yourself this week, and in grand style, too.
    thanks for the great posts — geez, i’d almost weaned myself off Plaming, and now I’ve slid down the slippery slope, AGAIN! and i actually have to get work done this week, during the day!

    • JThomason says:

      Don’t worry about work. The electron economy is far more sustainable than the petroleum economy could ever claim to be.

  17. pdaly says:

    oops. Instead of legerdemain, I think I meant “bailiwick”, but I guess it works either way.

  18. JThomason says:

    The more I think about the more I am convinced that the dissents complaint of “bait and switch” is completely disingenuous. The quote from J. Breyer in the last thread concerning the establishment by Military Commissions by Congress is not contradicted or undermined by today’s opinion. The military commissions are left standing largely untouched except where their creation impinged upon Constitutional habeas concerns. This is not novel jurisprudence. The majority has not dismantled the Military Commissions which the Court invited Congress to create. The “bait and switch” meme is an ad hominem attack against the majority, quite untoward, hardly judicious, restrained or learned. The opinion may be a case of first impression but the methods of the majority are not knavish and a legitimate question would seem to arise in judicial ethics as to why they should merit the craven retorts of Roberts and Scalia.

    • bmaz says:

      hardly judicious, restrained or learned.

      Or legally germane. Is much more akin to partisan political whining/arguing than legal distinction and/or rebuttal. Quite frankly, I have often found Scalia’s dissents (and, often enough, his opinions) to be like that, although rarely to this extent. Have never understood from his writing why he is considered such a supreme legal scholar and genius (like I am qualified for that determination; heh heh). Roberts and Alito I don’t have a good enough read on yet; Thomas is a certifiable mediocrity, at the very best.

      • readerOfTeaLeaves says:

        Oh, man… I’ve read some environmentally related cases where Thomas opined, and I was appalled at the poor logic. I’m no great logician, but even I can spot a glaring internal contradiction when it smacks me in the face.

        I was shocked at the internal inconsistencies of Thomas’s and Scalia’s opinion(s); as if they’d developed convoluted rationales to support their desired results. Induction, rather than deduction; intellectually sloppy IMHO.
        I was horrified, and incredibly discouraged.

        In the SCOTUS opinions that I’ve read, Kennedy and Souter both seemed the most logical, least ideological thinkers.

  19. readerOfTeaLeaves says:

    Reporter expects taxpayer-funded civil servants at DoJ to speak on the record about a major SCOTUS decision.

    SCOTUS pwned DoJ. But so did Matt Apuzzo ;-)))))

  20. earlofhuntingdon says:

    But aren’t all conversations with government employees presumptively off the record? The head of NBC’s “news” organization in Washington, DC, thinks so. But then, Timmeh’s found his ruby slippers and his competitors are still looking for theirs.

  21. yonodeler says:

    Bush and the Republican Party will try to make some political hay despite their displeasure with the ruling. Bush has already mentioned seeking a legislative remedy; if that fails, they’ll accuse Democrats in Congress, again, of being soft on terror. Bush and McCain will say that the ruling illustrates the importance of stocking the Supreme Court with “conservative justices”. And there will be abundant opportunities, in response to questions about the ruling, to talk about the “global war on terror”.

  22. PJEvans says:

    as if they’d developed convoluted rationales to support their desired results

    That’s just how Thomas would do it. Whatever decision Scalia wants him to reach, he’ll do his best to come up with a rationale for it.

  23. drational says:

    Clement left to avoid having to watch the DOJ defend the show trials and convictions.
    How can he have any self respect with the admin pushing forward despite the illegal detentions and interrogations?

    he knows the only outcome is conviction and it is just too much to stomach.

    • bmaz says:

      Maybe. Total legal bullshittery never stopped him before though. And I mean total. Of the direct contradictory variety (and even if he didn’t know at the instant he made the avowals; he didn’t exactly correct the record later).

  24. Hugh says:

    I wrote about Eric Lichtblau’s article of June 10 on FISA negotiations where he allowed Administration and intelligence officials anonymity while all they were doing was repeating talking points Republicans had been using for nearly a year. It is great to see someone stand up to the Russert principle that assumes all officials must be treated as unnamed or off the record by definition.

    • PetePierce says:

      And you all thought Fredo Gonzales and Ashcroft were bad. This is a coniving little prick, and of course the Supremes stopped short of doing anything but again for the third time granting habeas, and habeas isn’t doing these people much good. Other avenues of challenge that CRC will surely pursue will be the ex post facto clause ole Article I Section 9 of what I remember was the Constitution–it’s been gone for 8 years. Watch for Congress to try to use the Suspension Clause to suspend habeas as Adler references in his analysis of Boumediene.

      Marty Lederman’s comments/analysis are interesting at Balkinization.

      Also The fundamental problem with GitmoFurther the pricks on SJC have every intention of neutering this opinion and the opinion of the other habeas case released yesterday.

  25. PetePierce says:

    The only real victory from Thursday was the Celtics coming back from 24 points down to kick the Lakers’ ass. While they deserve tremendous praise for tireless high quality work CCR attorney Gitanjali Gutierrez and her gang didn’t win a huge victory today. They won, but the components in the equation at the Court carefully avoided killing these fucking crazy Millitary commissions and refuting their mockery of trials and evidence. What still stands like granit is the ability to torture and gain evidence via torture, to use heresay evidence, to hold these insipid “trials,” to arms lengthlawyers like Gitanjali fromaccesing their clients, and to record every communication with the client, after medicating the clientheavily with neurileptic (antipsychotic meds) even rapid tranquing them say withhaldol 1-2 mg. IM every few minutes so they are zombatized when they meet their lawyers.

    These are all tactics that are up and running that the pricks and prickesses from DOJ are fond of using and unless you’re brain dead and comatose, this isn’t just at Gitmo, it’s in the BOP facilities throughout the bannana republic USA.

    What needs to happen in a just world is that someone bundles up that arrogant little aristocratic prick Mukasey and renders him to a prison out of the country, where he can experience the quality of life of incarceration that happens to thousands of DOJ prisoners every day in American prisons routinely let alone at Gitmo, on boats or in renditioned environments.

    I know we have spin here from the media. I know that even Eric Lichtblau has been lately cowed and compromised like the judiciary he sometimes covers and is now Judy Millering his articles in the NYT. One more reporter trying to hawk a book that has sold out, and one less book I have to pay to read.

    We are supposed to have a free press. If the press can’t make the attempt to cover events, then we continue to morph into the Bannana Republic that we have become during this 8 years.

    DOJ can simply revert to having their conference calls and lying to the members of the press or pushing their deceptive spin as is SOP for them.

    They want to go off the record because they’re flustered. It’s early on and the millions of dollars in salary you pay for in units at Main Justice that most people have never heard of including attorneys hasn’t had the chance to gather with their homies on the hill like Chambliss, Corynyn, Graham, and Sessions to figure out the next bill to leapfrog or neutralize Boumediene. It should be clear so I’ll say it again. Bomediene did not solve a host of problems. It’s not a yipee yippee decision for liberal blogs, for ACLU, for CCR attorney Gitanjali Gutierrez, who represents numerous Guantánamo prisoners, including former U.S. resident Majid Khan. Granted we all love these people. They are superlative lawyers and they do fantastic work along with EFF, Melanie Sloan, ACLU and a number of other organizations.

    But behind the scenes at the Court you have Kennedy trying to throw boquets to that arrogant prick Scalia who wouldn’t know the Constitution if it bit him in his cavernous fat ass–so you have concessions.

    Here is a long list of commentary on Boumediene.

    There were actually two habeas opinions out of the S. Ct. yesterday morning, and some of the best analysis of them is by the three analysts at The Volokh Conspiracy.

    From Jonathan Adler:

    The Suspension Clause provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” This language seems to impose two separate conditions on the use of the clause: 1) “Rebellion or Invasion” and 2) “public Safety.” Assuming, for the sake of argument, that these requirements are justiciable (an assumption I don’t necessarily accept) what showing would the government have to make?

    Munaf v. Geren
    was the other habeas decsion yesterday.

    Overshadowed by the Supreme Court’s 5-4 decision in Boumediene was the Court’s unanimous opinion in Munaf v. Geren, another habeas case arising out of the war on terror. In Munaf, the Court considered whether U.S. courts have jurisdiction over habeas corpus petitions filed on behalf of U.S. citizens challenging their detention in Iraq by the U.S. military and, if so, whether a U.S. district court may issue an injunction prohibiting the military from transferring such individuals to Iraqi authorities.

    In an opinion by Chief Justice Roberts, the Court first concluded that U.S. courts may entertain habeas petitions brought by U.S. citizens in military custody overseas. The Court rested its decision on 28 U.S.C. 2241(c), which explicitly extends such jurisdiction to habeas petitions brought by individuals held “in custody under or by color of the authority of the United States,” or “in custody in violation of the Constitution or laws or treaties of the United States.” The government had sought to argue that this provision does not apply here because U.S. forces in Iraq are participating in a multi-national force, but the Court readily dispatched this argument noting that the petitioners “are American citizens held overseas in the immediate ‘physical custody’ of American soldiers who answer only to an American chain of command.”

    While the Court upheld federal jurisdiction, it nonetheless rejected the petitioners’ ultimate claims, concluding that district courts could not issue the injunctions sought. The traditional remedy for a habeas violation is release. Yet that would not do the petitioners much good here, as to be released by U.S. troops would place the petitioners in danger of being apprehended by Iraqi authorities, producing the precise result they sought to avoid — potential detention and trial by the Iraqi government. As Roberts concluded, “Habeas corpus does not require the United States to shelter such fugitives from the criminal justice of the sovereign with authority to prosecute them.” That the petitioners alleged they could be subject to torture or other inhumane treatment may make them more sympathetic, but the Court rejected any suggestion such fears strengthened their legal claim. Thus, in the end, the Court concluded that the petitioners “state no claim in their habeas petitions for which relief can be granted,” and ordered their petitions dismissed.

    • peony says:

      Are you willing to see this as a process, a beginning of a restoration of the rule of law? IMHO, this Scotus decision is an indicator of a change in the zeitgeist that is reflected in the public mood, in the culture, and in many fields, which continues to build. Events will cluster or multiply around the time it peaks in the next two years or so.

      • drational says:

        it is either the resurgence of rule of law, or the last grasping claw at the cliff’s edge before a long, tumbling fall.

  26. freepatriot says:

    off the record press conferences

    kinda sums up the whole bush administration in one head exploding sentence

  27. wavpeac says:

    Inductive and deductive logic easily hide bias.

    We would be better served in this nation if we stopped being so damn arrogant about thinking. There are other forms of “logic” or “rational” thought. Thinking Korzybski here. Every now and then, when my eyes seek the horizon I wonder if the human species is just too flawed for mother earth to allow our survival.

    I have lost visual contact with the solution to our “problems in thinking”. This administration has brought many of these cognitive distortions front and center and there seems to be no effective way to confront the lack of validity in these legal arguments.

  28. darclay says:

    What I had a hard time following was Clements argument that the 1790’s writ was relevant and seemed that it was not in the breath. Was he comparing different cases or was he trying to be obtuse, maybe it was me…answers anyone?

  29. Mary says:

    Good for Apuzzo. DOJ was trying to continue in the absolutely ridiculous “secret law, secret interpretations of the law” mold (their jello floweth over).

    You have a Sup Ct ruling issued affecting a major issue that has DOJ lawyers involved in hundreds of cases and DOJ will only speak “off the record” with no formal acknowledgement from anyone in the Dept as to how the chief law enforcement agency of the country – littered with lawyers whose licenses to practice issue from the judiciary and NOT the flippin Executive – interprets the opinion. That’s crap. Sounds to me like the lawyers wanted to piss and moan and jibe and jab a the court, but for Prof Ethics reasons didn’t want to do it with their personal names attached.

    They weren’t going to inform the nation as to the direction of the institution in light of the ruling – they were going to attack the Court. Then claim “secrecy” and “anonymity” for the lawyers who engaged in the assault.

    This whole concept of the interpretation of law by the DOJ being “secret” is the most idiotic thing that has been generated by the Goodling aspirants at DOJ.

    • phred says:

      This whole concept of the interpretation of law by the DOJ being “secret” is the most idiotic thing that has been generated by the Goodling aspirants at DOJ.

      Not idiotic so much as intentionally pernicious. They cannot openly resurrect the monarchy in this country, so instead they hide behind secret law and refer to their ultimate goal euphemistically as a Unitary Executive. A king by any other name still smells as rancid.

    • PetePierce says:

      Right on target as always Mary. It is reprehensible that DOJ at Main Justice has evolved into a stance that they need to go “off record” in reaction to a major opinion of the Supreme Court which reacts to their way of doing things. Make no mistake about it, the architects of these gitmo trials have not been military lawyers/prosecutors/judges although they have bought in, the military is taking its orders from DOJ.

  30. wavpeac says:

    They continue to use emotion and fear as a cover for intelligence, facts and structure. There are big bad things you don’t know so sit back and let us do whatever we want(while we rob you silly scaredy cats blind). I am still floored by the number of people who read Bushco as “there’s something scarey out there that he can’t tell us, so we should just let him lead us”. The scariest thing in the world would be losing our democracy and constitution. The constitution that protected the rights of all of people. I guess the positive in all of this, is that I have never appreciated the constitution or our forefathers as much as I do today. It really was a magnificent idea that they tried to impart and codify.

  31. Mary says:

    Argh – my today is worse than my yesterday on the busy front. If I had the time, I’d work up a kos diary around Scalia’s attempt at propaganda – something under this umbrella:







    Bush v. Gore.

  32. FrankProbst says:

    Random thoughts:

    1. Paul Clement’s vacation just got even better. I hope he splurged and got the deluxe four-handed massage today.

    2. I’m glad Mukasey is already ignoring the decision. The story is still hot, and it’ll highlight the fact that this Administration just ignores laws and rulings that it doesn’t like.

    3. Loved the comment by Bush that he’ll try to get Congress to act on this. I really hope Congress comes back with something like, “We’d love to hear your ideas! You can send them over with Karl when he comes to testify!”

    4. So Matt Apuzzo stood up for journalism. Any idea who the 40 other people were who are still on their kness?

    5. The DOJ totally flubbed this. I understand that they need time to read the ruling, but if that’s the case, then you don’t do Q&A with the press. You just say, “Look, it’s a 70 legal ruling, and it’s written in legalese, so we need a few days to figure out what it all means.” That being said, it’s not like they didn’t know this decision was coming down. And these ARE lawyers, after all. Shouldn’t somebody has already thought out what would happen if they lost?

    • emptywheel says:

      As the post points out, the other 40 people were on mute, so they couldn’t do anything. The teleconference format gives conference organizers a great deal of power to mute the voices of people they don’t want heard. And since it sounds like everyone was connecting in via phone, they really couldn’t do anything.

  33. FrankProbst says:

    Dahlia Lithwick’s take on it is up:

    I think it’s worth re-iterating that the prisoners at Guantanamo Bay have now won not one, not two, but THREE Supreme Court cases, and they STILL have nothing to show for it.

    I really don’t understand this. I get that we have a long-standing legal tradition in this country of the courts only dealing with actual cases, as opposed to hypothetical scenarios. But there’s nothing hypothetical about the fact that there are prisoners who have been trapped at Guantanamo for years and have no way out.

    And I don’t want to hear any crap about how there are some really bad people in there. I get that. I just don’t understand why we can try them. Fly Khalid Sheikh Mohammed to Manhattan and put him on trial. Put the whole thing on television, warts and all. If he’s convicted, he can rot in jail for the rest of his life. If he’s acquitted, the judge can just say, “Congratulations, Mr Mohammed! You’re free to leave through the front door! Welcome to New York!”

    • rxbusa says:

      Exactly! Quit mucking around with the rules, just try them on the evidence…and I really like the idea of dumping them out in NYC if they are acquitted (because I think if they are acquitted it will be because the Bush administration fucked up so bad).

  34. masaccio says:

    I don’t see why the habeas proceedings cannot go forward at the same time as the show-trials. In any event, they will give rise to appeals of the death sentence. Habeas Corpus is one of the routes to appeal of a criminal sentence in a state court proceeding, why not from a Military “tribunal”?

    • Ishmael says:

      Agreed – I do not see why they cannot be parallel processes – habeus by its very nature is not like a collateral attack on the process by way of certiorari or another prerogative writ, but even certiorari can be used in certain constitutional contexts, (sorry if the Canadian nomenclature is not accurate for the US context). If HC is sought in a federal court by the detainees, presumably they would seek a stay of the Military Tribunal proceedings? This makes the KSM shenanigans that Bmaz pointed out the other day look very suspect, could it be that there was a heads-up coming from the Supreme Court via law clerks or other insiders?

    • drational says:

      only an issue if the martyr wannabes want to appeal. I think they hand-picked the 5 defendants based upon prior knowledge of rejection of counsel. they got al qahtani out back in may. the only glitch came with 2 of the 5’s lawyers protesting self-representation.

      if they strip themselves of all representation and really just want to die, how will the sc decision result in justice for these 5 detainees? KSM at least, will not appeal. so Bush will get the big fish in time to help McC.

  35. masaccio says:

    bmaz, on an earlier thread, you asked if I thought the Afghan detainees might be released at some point. I think so. We are not at war with Afghanistan. The AUMF authorized the current administration to invade other countries that harbored the terrorists of 9/11. Bin Laden is now in Pakistan. The Taliban is not al-Qaeda, and in fact, represent no know threat to the US, except for their ability to kill the people we have in their country. So, yes, I think that the supremes will not stand for permanent holding of their detainees, or those of other countries we have rendered there for torture, at least not forever. Surely Congress will eventually grow a spine, or the citizens will create a congress with a spine before that happens.

    • masaccio says:

      In support of this view, see Part V Section 5. I like this quote:

      And the habeas court must have the power to order the conditional release of an individual unlawfully detained–though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted.

      Cites omitted.

  36. maryo2 says:

    “Shouldn’t somebody have already thought out what would happen if they lost?”

    Allow false flag attack on US homeland before November, steal elections, seat McCain, appoint a new Justice, live free on bail awaiting appeal for rest of life??

  37. Leen says:

    Has been enlightening spending many hours talking with my friend from Afghanistan who has been studying here in the states on a Fulbright. Was able to hear about not only his perspective but his family’s perspective that the U.S. is occupying Afghanistan and that due to this U.S. has occupation has reinforced the Taliban’s power due to the lack of funds layed out to build up Afghanistan’s infrastructure. My friends father who is a retired Brigadier General(and fought with the U.S. and the Mujahadeen against the Russian invasion) in Afghanistan firmly believes that the Bush administration has not wanted Afghanistan to build up it’s infrastructure. Maintain the chaos, collective disorientation etc appears to be in agenda. He is not absolutely clear as to what those reasons for maintaining the chaos are but he has his suspisions ( poppy production, Pipelines, war lords etc). According to these folks the situation in Aghanistan is extremely dangerous due to the Talibans growing power and influence.

    My friend wonders why the U.S. state Dept does not demand that the 52 Fulbright scholars are incorporated into the Karzi government. I have been able to talk with three of these Fulbright scholars and they clearly seem to understand how important it is to build the Afghani infrastructure with extreme respect for the religious and cultural beliefs of the Aghanis people. They also say that the evidence is very clear that the Taliban are brought to the table to negotiate. That it is incredibly important to incorporate the Taliban no way to block them out.

  38. Leen says:

    Ot Amy goodman had Kucinich on today talking about his 35 articles of Impeachment and Vincent Bugliosi on about bringing Bush to trial for murder. Worth the watch

  39. skdadl says:

    Does the expression “perfectly ambiguous” have a meaning in law? (Excuse me, but I’m reading Scalia, who is a hoot in many ways, but it occurred to me that that might be some law-talkin’ mystery.)

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