The Brits Refuse Secret Trials Even as Obama Doubles Down
As bmaz reported last night, the Obama Administration has refused to accept Vaughn Walker’s ruling in al-Haramain–in fairly spectacular fashion (and yes, bmaz, Mary, MadDog and others did tell me this was going to happen).
Meanwhile, across the pond, the folks from whom we got our legal system are refusing the very concept that the government could avoid its legal liability by claiming its crimes were all a secret. The British Court of Appeals refused the British government’s attempt to respond to a suit from Binyam Mohamed and other former Gitmo detainees by claiming only the government and the judge could see the evidence–effectively the stance the Obama Administration has now doubled down on.
British residents held at Guantánamo Bay could be offered millions of pounds in compensation for wrongful imprisonment and abuse after the court of appeal today dismissed an attempt by MI5 and MI6 to suppress evidence of alleged complicity in torture.
The judges ruled that the unprecedented legal move by Britain’s security and intelligence agencies – which the attorney general and senior Whitehall officials backed – to suppress evidence in a civil trial undermined the principles of common law and open justice.
In the appeal court ruling, Lord Neuberger, master of the rolls, Lord Justice Maurice Kay and Lord Justice Sullivan said that accepting the argument of the security and intelligence agencies would amount to “undermining one of [the common law’s] most fundamental principles”. One of those principles was that “trials should be conducted in public, and the judgments should be given in public”.
The judges gave the attorney general, MI5 and MI6 28 days to appeal to the supreme court. But government officials have told the Guardian that the former detainees are now likely to be offered compensation of millions of pounds in out-of-court settlements as that would be preferable to having embarrassing evidence of the security and intelligence agencies’ complicity in abuse being exposed.
In other words, if the government refuses to share evidence of its own involvement in the torture of British residents and citizens, then they are going to have to settle with those men, rather than just dismissing the suit altogether by saying the plaintiffs can’t see the most crucial evidence in question. Had the government accepted Walker’s judgment in al-Haramain, they would have paid millions, but would have managed to keep evidence of their precious illegal wiretap program (a program both Obama and Holder have said was illegal) secret. (The Times has more, including some excellent quotes from the plaintiffs’ lawyer.)
How quaint the old country looks from this distance!
How quaint the old country looks from this distance!
Well put, EW!
With a similar take, Scott Horton writes that:
The decision is online —
“But government officials have told the Guardian that the former detainees are now likely to be offered compensation of millions of pounds in out-of-court settlements as that would be preferable to having embarrassing evidence of the security and intelligence agencies’ complicity in abuse being exposed.”
Sounds like a PAY TO TORTURE PROGRAM. Will the detainees roll over for the all mighty “millions of pounds”
I think the British government will make them offers they can’t refuse. And it may not be all cash, some of that secret data was no doubt incriminating.
Boxturtle (We don’t embarrass you, you don’t embarrass us. Deal?)
pay to torture program
Forgive me, but I feel this really has to be challenged. If similar Canadian cases now collapsing in the courts are anything to go by, the people concerned are innocent (although of course we all affirm that even the guilty must not be tortured).
Should Maher Arar have accepted his $12.5 million at the end of a stunningly competent judicial inquiry (even though it couldn’t be complete, given the refusal of the U.S., Syrian, and Jordanian governments to co-operate)? Good God, yes, given what he still has to put up with. He’s innocent (proved so by CSIS and the RCMP), and yet your government still has him on no-fly lists that obtain around the world, not just in the U.S. Why should he put his life on hold indefinitely, waiting for Obama and Clinton to look in a mirror and start to scream at what they see?
And he is the only one I know of who has won even that much fairly and openly. So many others have been forced, like the victims in this British case, to follow up the collapse of cases against them with civil suits, which can go on forever, depending on how perverse the government in question happens to be. My government certainly qualifies among the most perverse — I won’t list here all the cases they are stalling, which means real lives they are stalling, but trust me, there are a lot. Do you know how many people have been tortured on the basis of tainted testimony from Abu Zubaydah alone? Do you know how many intel agencies have run crookedly on that testimony alone?
BoxTurtle, sooner or later you’ve got to look at one hard truth: what was done to all these guys was done on the basis of crap evidence collected mainly by your crappy “intelligence” peeps, with whom the crappy “intelligence” services of countries like mine and the UK stupidly collaborated, all of them blithely indifferent to if not ghoulishly enthusiastic about the criminal methods of “intelligence” collection involved.
What is remarkable about the UK courts is that several levels of them have now said, in several cases, that any claims that protecting the intel or the ways it was collected have anything to do with national security or maintenance of international relations are the sheerest crap.
You figure out your own bottom line, but mine for sure is that I want to see CSIS taken apart in a public inquiry. I want to know what the hell they thought they were doing for the last ten years, plaguing innocents in my name with my money.
Am I willing to pay their victims? For sure I am. I live in a democracy. I am a citizen. I am responsible for every crappy thing CSIS did. And they won’t stop acting like that until every citizen says that. Until then, we pay — of course we do.
And thank you.
May your perspective find a home in hearts and minds, everywhere.
Thanks for the post EW. Was reading about it at The Guardian.
Read what Leen posted above and wondered about the same concern. I wonder what is the quiet “threat” if they do not take the settlements?
Is there a possible subtle/veiled form of torture (threat) tied to the settlement forcing all into a settlement perhaps?
It amazes me that the government did not accept Walkers most generous offer to buy their way out of Al-H. Had I been ObamaLLP, I’d have paid off AL-H, and wrote secret executive orders to negate the parts of the decision I didn’t like. It worked well for BushCo.
The only thing they’re going to gain is time. Is time really that valuable to them? The 9th has already made their opinion pretty clear and they’re not going to reverse themselves.
But can they get 5 votes with the supremes? I count three guarenteed (Roberts, Thomas, Alito), one probable (Scalia), one possible (Kennedy), and one unknown (Sotomeyer). Plus a new face, yet to be determined, but no doubt selected with this in mind. Ginsberg leaving may well have changed the math.
Boxturtle (Crow for breakfast. I was so sure ObamaLLP would take the deal)
Ginsburg is not leaving, Stevens is; and only time will tell where Kennedy and Scalia stand, but it is by no means clear. The biggest fear right now is that Obama is selecting Stevens replacement on the basis of their willingness to cower in favor of executive power, which is undoubtedly one of the biggest reasons, if not the biggest, that a patently unqualified hack like Kagan is being considered.
JIT commissioned “comissions”
JIT appointed “made to order” supreme court judges
Anyody remember this: “ad hoc legal approach” – 1:10
Shameless, the whole speech, a precrime if I ever saw one. Genuinely a threat to the United States.
Agrh! Proofread, dammit, proofread!
I notice you’re not disagreeing with my assessment of Roberts. :-)
ObamaLLP has got to manage to win over one of Kennedy or Scalia, with the best shot being Scalia. Their problem is that Scalia respects his own interpretion of the Constitution and it’s going to be difficult to wordsmith an Al-H appeal to appeal to Scalia and not get eaten by Ginsberg.
I have no feel for how Sotomeyer might vote. Do you?
Boxturtle (Kagan=Myers. Hope the Dems are as smart as the GOPers were)
Harriet Miers is Justice Robert Jackson compared to Elena Kagan. Say what you will about Miers, she was a real lawyer, was mentored by Melvin Belli, knew how to find a courtroom and had held and apparently been successful at several different important stations in the legal system during her career. Heck, as thin as her written work was, it far exceeded Kagan’s pitiful output. Equating Kagan with Miers is an insult to Miers.
I wasn’t so much comparing their experience, but their purpose. Both would be nothing more than tools for their respective presidents.
Boxturtle (Miers has a few extra layers of chrome, that’s all)
Maybe, but one was a hell of a lot more qualified than the other. Hint: it is not Kagan.
Ms. Kagan is a professional academic administrator of senior rank, more along the lines of Condi Rice than Miers. By comparison, Jackson was from another planet. Ms. Kagan would be intimately familiar with academic politics (“so fierce because the stakes are so low”), with kissing up and relieving frustrations downward, and with quiet diplomacy among the well-heeled, on which her institution and her tenure depend.
She seems to have taken as the bible of her professional life the Republican take-away from the Clarence Thomas nomination, a course also adopted by Chief Justice Roberts – be brilliant, support one’s patrons, and know nothing, say nothing, reveal nothing, that could be used against your professional advancement.
Those are not the professional or life skills sorely needed on the Supreme Court. I may disagree with the politics of Justice Sotomayor, but I admire her life story as much as her brilliance and industry. Diane Wood illustrates those qualities, too, but comes with a common touch more akin to Elizabeth Warren than Warren Buffett. Moreover, she has demonstrated an ability our esteemed president has not – the ability to build a bridge of law between distant and opposing political shores.
Roberts may have been elusive in his confirmation hearing, but he certainly had an active and full record behind him. Kagan has nothing. There is literally nobody in the history of the court that has as much nothing supporting them as Kagan. There is no court analogy for Kagan because there has NEVER been anyone on the court with such a complete absence of record as a lawyer.
That seems to be because she has not practiced or taught or been a public advocate for her legal passions, but has been content to serve institutional interests, quietly, from the inside, without exposure. Even Brett Kavanaugh had more rough and tumble, non-academic administrative experience than Ms. Kagan, and he was wholly unworthy of the seat on the DC Circuit that Bush procured for him. The Roberts court members would eat Kagan up, as would the work itself.
A seat on the Supreme Court is not for everyone. Being brilliant and having had decades of superlative professional experience is the entry fee, not a winning hand. There are a hundred senior, experienced, progressive American lawyers, judges and academics who would be better qualified than Ms. Kagan, however brilliant she has been in her chosen approach to work.
Probably thousands but, yes, that is it exactly. I agree you do not have to be a Cicuit appellate judge to get on the Supreme Court, but you should have some lawyering experience. Kagan does not, and the literally handful of cases she has handled over the last five months or so, in only one cloistered court, she has been mediocre or below at. She has even admitted herself she was like a deer in headlights. This is not the stuff of a justice.
> you do not have to be a Cicuit appellate judge to get on the
> Supreme Court, but you should have some lawyering experience.
So one should automatically be excluded from serving on the Supreme Court and meting out justice if one is not an attorney? I don’t think I like the sound of that.
Yes, if you are going to decide law at the highest level, and set the process for every court in the country, you should actually have a clue about the law and courts. Non-lawyers need not apply.
So people here think Pamela Karlan is less likely to be nominated than Sam the Eagle?
About even odds.
England is still a democracy unlike the fascist states of america.
Britain is not an unqualified haven of democracy. In the last ten years, it has substantially ramped up police powers to surveille, search, seize and arrest, and to collect and keep (it argues, permanently) biometric data, including DNA, on all arrestees, regardless of the seriousness of the offense, whether the person is convicted or even tried, or even stopped in a case of mistaken identity.
It has instituted anti-social behavior orders (ASBO’s, a bete noir of Rumpole’s creator) that permit non-judicial government officers such as local authority executives to impose unilaterally and without due process criminal law like penalties (comparable to misdemeanor penalties here) for what are often seemingly mild outbursts of undesirable behavior.
To paraphrase Franklin, freedom and independence are easy to get, much harder to keep.
JIT commissioned “comissions”
JIT appointed “made to order” supreme court judges
Anyody remember this: “ad hoc legal approach” – 1:10
Shameless, the whole speech, a precrime if I ever saw one. Genuinely a threat to the United States.
// what is *up* with that “Edit” feature?
Just needs refresh?
Anyway – if you want it straight from the horse’s ass
Clearly, Obama Co. (and Bush Co. including Cheney) intend “this” to all be “settled” by a willing, complicit, and “compliant” Supreme Court. Indeed, since Bush v. Gore, political (and “economic”) “considerations” have driven, and directed, virtually all “policy” decisions.
By those “calculations”, the next “pick” for the court MUST be in favor of executive supremacy.
So far (despite the kabuki dramas of Pelosi and others, who whine that they were kept out of the loop and only demonstrate Congress’ incompetence for not demanding, for not insisting upon, “oversight” and control of those ever-so-quaint “purse-strings”), Congress has been complicit, compliant, and craven in its “response” to challenges to ITS legitimate authority.
With DOJ’s response to Walker’s decision in al-Haramin, it will soon become clear whether the “lower” courts intend to “knuckle under” as easily as has the House and Senate.
An aroused lower court sensibility might serve to waken the people to the dire straits in which all who care about the rule of law find themselves.
At least, we’ve the best of company.
Thanks for giving this story more prominence. As I said on bmaz’s post yesterday
Here is a good lawblog that covers the UK Supreme Court. Given Lord Neuberger’s judgment and his status as the chief judge for the appellate court’s civil division, I suspect the British government won’t appeal it.
A related Guardian article, asks a question we might well ask here about Bush and Obama’s entire approach to justice, not simply the trial of terrorism cases:
O.T. : McClatchy report of testimony on Khadr interrogations.
In which some details of the interrogations under medication are similar to John Walker-Lindh interrogations.
Several excerpts provided to encourage following the link to the whole story.
“By Carol Rosenberg | McClatchy Newspapers”
Obama gives the Supreme Court of Canada the finger.
Well, the author of the message quoted in that report is never called much more than “the U.S. government.” And trust me, this rejection of his request is not going to distress our justice minister Nicholson. He and Harper were forced to make it by the Supreme Court decision, and it was the most minimal response to that decision they could have made.
But apart from our worms up here, what appalled me about the message from the U.S. government was this part:
Gee, kids, no. Somebody has the blinkin’ bricklefritzin’ nerve to compare the standards of Col Parrish’s kangaroo court at GTMO to the standards of the Supreme Court of Canada, who have ruled that Khadr’s rights have been violated (2008) and that executive claims of jurisdictional privilege cannot justify violations of the constitution? Some ignorant dork in Washington thinks that there is some equivalence there?
skdadl is losing temper. Not good to type when losing temper. Must have glass of wine to calm down. Or up.
losing your temper or not, this:
made me laugh. Slainte!
Sláinte, harpie. And a glass over the water.
i think your selection criteria as expressed in the para:
“a seat on thebsupreme court is not for everyone…”
sets out a rule for appointment to the supreme court that is about the worst possible selection rule one coulld follow.
at its best (and worst), the supreme court is first and foremost a political entity, NOT first and foremost a legal entity.
an intelligent and thoughtful politician with sufficient minimal knowledge of law would be a superb addition to this court.
i have no brief at al tto file for elena kagan, and i do not trust her rubbing up against right-wing lawyers and enticing them to harvard law school.
good god, have you ever looked at the background of h law grads. these are a mob of torch bearing liberals (in any sense). these are smart kids who have always known what to do to compete and to advance their careers.
if brillance and legal experience were the best-for-the-nation selection criteria,
why is it that the r-wing were ecstatic over roberts and scalia?
answer: because intellectual brillance and strong legal and judicial experience, are great tools to have if you are a right-wing judicial obstructionist and sophist as are roberts or scalia.
give me a smart, caring, sceptical gov or mayor any day.
Man, is that dead wrong. Having someone that does not know their ass from a hole in the ground about the law and court process is one of the freaking worst ideas I have ever heard.
Basically, bmaz, I agree with you that knowledge of the law is critically important to those who would sit on the supreme bench.
However, as irony is a most abundant element in this universe, as you elsewhere observe, how well, of late, have we fared with the selection of genuine “attorneys” to sit on that bench?
You have expressed some reservations as to the legal competency of many of those “attorneys” who become Congress-persons.
And, I gather you’ve not been especially impressed with many of those so far proposed by Obama for SCOTUS, all from the “appropriate” pool (due deference, applied).
How shall we get “better” nominees until law “schools” start putting out a better “product”.
Should law “schools” and their professors be endorsing the idea of using the law to destroy the law?
How may we have better eggs until we have “better” chickens?
(All of whom do come “home” to roost.)
Well, except for Kagan, I think they have all been qualified. Other than Wood, I really am not crazy policy wise about most of them, but at least they are qualified. I honestly do not think Kagan is. for the same reasons, but to an even further degree, I do not think a non-lawyer would be qualified. The problem with the politician lawyers I have carped about is that they were never really much in the way of actually being a lawyer, they just possess law degrees – Obama would be an example – or they are so far removed and so heavy into politics they have forgotten what the law and procedure is about. There are many that still remember – heck even Arlen Specter has flashes where he wakes up and says “hey, that just can’t be” or “no, we have to be mindful of this”. Leahy, Whitehouse and several others still have it in them. You can see it all over Alan Grayson.
This makes me think a bit about all the cyber experts, when Judge Taylor’s opinion was coming out, decrying why she didn’t base it on x or y or z – people like Anne Althouse and some of the guys at Volokh and Glen Greenwald had to patiently explain legal procedure to them and why the opinion could NOT, as a matter of legal procedure (that they all should have learned about as first years, but never had to actually put into practice and so forgot about over the years) have done what any of them were suggesting.
you’re wrong, bmaz.
you’re dead wrong,
and i would add for insult [ :-) ], disastrously wrong.
when one gets to the top rung of the ladder in the executive, the legislative, or the judicial branches,
you are dealing with, required to deal with, and expected to deal competently with, politics – first.
in the supreme court’s case, that’s the politics of the law.
john roberts, who fits earl of h’s criterion perfectly, understands this well and has supervised two highly political decisions –
1) that on late term abortions (one of the most medically ignorant, politically-motivated, catholic-church-impregnated decisions the us supreme court has ever made.
2) that on based on the convient legal sophistry of the “personhood” of the corporation with respect to well-established federal legislation limiting the role of incorporated entities (including labor unions and public interest groups) i influencing elections.
i’ll take lawyer, and three time gov of calif earl warren, any day over
brilliant, deeply experienced, heartless, AND deeply politically motivated republican operative john roberts, antonin scalia, laurence silberman, or robert bork.
That is a policy difference you are talking about. There is a difference between that and not knowing shit about the law. And yes, you really do need to know that to function at the highest levels of it. The great majority of law determined and set by the Supreme Court you never hear or know about and it involves complex cases determined on a variety of interconnected legal principles and technical court processes. You need to know what you are doing to engage in that. the handful of cases you hear about and even that are discussed here, are a drop in the bucket of what they do. Do you think non-engineers should be setting building specs and tolerances for the highest skyscrapers? Do you think non-doctors should be setting protocols for neurosurgery? Then why do you think some pissant off the street should be on the Supreme Court?
I think there is a difference between what is “the law” and what is “justice”, although there would be pros and cons with non-lawyers making these decisions. I do not see a problem with a smart and wise person fully examining and understanding any issue of law given sufficient study.
Do I think:
> non-engineers should be setting building specs
> non-doctors should be setting protocols for neurosurgery?
No, but I should think there would be a perceived difference between the laws of the universe, which we cannot change, and the laws of humankind, which we can.
With all due respect, there is a reason people are trained to be lawyers and study and practice for years to understand and become expert in it. The highest bastion of the law in the land is no place for dreamy eyed social experimentation and learning on the job. It is an insulting and absurd suggestion. You want to see somebody run over and marginalized to the point of uselessness? Put him on the Supreme bench with eight real Justices. It is one of the most ridiculous ideas I have ever heard in my life.
You may be right 9 times out of 10, or more, on a practical basis. (NB: 9 times out of 10 is not 100%.)
However, like any good lawyer — I presume — you completely avoided addressing my two main points:
1) “The law” is not necessarily “justice”.
2) The laws of the universe cannot be changed by people, but our laws can be.
As a general observation, all the educated specialties seem to feel that no one else can possibly comprehend what they do for a living. I happen to disagree.
> It is an insulting and absurd suggestion.[…]
> It is one of the most ridiculous ideas I have ever heard in my life.
Thanks for the (personally insulting) tough talk, but I’m not trying to be insulting or absurd. I greatly respect your views and experience. However, in my analysis, the lack of a law license should not automatically prevent someone from being a Supreme Court Justice.
Feel free to actually address my two points above, or not. Either response is certain to be illuminating.
I too did not mean to be insulting. But I do find the thought that someone who does not know anything about the law or court process should be put in charge of it to be absurd. It has nothing to do with physics or whatever you are referring to with the term “laws of the universe”; that seems to be an inapposite red herring. I also am not sure exactly what you mean by the relative terms “law” and “justice”; I am not sure they are separable. In fact, i do not think they are. And the great majority of the work of the Supreme Court is technical law and process; I personally do not want someone on the bench deciding that who has no clue what it is about. I don’t even want Elena Kagan for that very reason, and she is light years ahead of someone who is not even a lawyer. Could such a person be put on the Supreme Court? Sure, but it would be a remarkably horrid move.
back to basics, bmaz
my initial criticism was based on eofh’s comment that “…being brilliant and having decades of superlative legal experience…” was the central criterion for selecting a supreme court judge.
the right-wing supreme court justices who meet that criterion, but fail the test of helping their society assimilate social and scientific change are the evidence, prima facie, that smarts and experience don’t produce wise sup court judges or decisions.
“wise” judges,by the way, help the society move smoothly forward.
the two r-wing decisions i cited above have NOT helped this society move forward.
the defense you raise above is not
related to my central concern and criticism.
the scotus of today (and yesterday) with all its ” brillant and deeply experienced” justices,
has utterly failed this society for at least the last decade.
and you call for more “brillance and expertise” ?
Yes, but a different and better quality of it.
bmaz, are not “policy” differences the essential essence of “politics”?
And is “that” policy “difference” kind of thing precisely “what” Sunstein and Obama will not look “back” upon?
What if “policy differences” (Ha!) involve torture, illegal or un-Constitutional “behaviors?
I am of the non-legal opinion (just a lowly human one) that certain “policies”, such as using the law to destroy the rule of law are ALWAYS “bad” and socially “destructive” and are not legitimate philosophies. “Legal” minds which possess them and would implement them are a clear and present(!) danger to the rest of us.
And, bmaz, if the law dies not care about people and the quality of their lives, then it is merely a bludgeon for the powerful to have their way, however destructive.
My concern is the percentage (which we cannot know, it would seem, professional reticence, and all that) of lawyers who appear to be comfortable with that appalling concept.
(What of my concern about better “eggs”? Where does responsibility lie for the “policies” of lawyers and those who make “use” of lawyers? Certainly NOTHING happens without lawyers at the levels of destruction our nation has endured for more time than I care to contemplate.)
“And, bmaz, if the law dies not care about people and the quality of their lives, then it is merely a bludgeon for the powerful to have their way, however destructive.”
Looking back over labor history this is basically the definition of what the courts were used for.
“dreamy-eyed social experimentation…”
why, bmaz, that would describe “brown v. board of education…”
that would describe the 14th amendment
that would describe the court upholding civil rights voting cases
perhaps you may recall it was the wealthy, right-wing poppinjay, billy buckley,jr. who argued that govt should not try to change the social structure of the south.
roberts, scalia, thomas and alito might very well have picked up buckley’s sophistry and enacted it into final law of the land .
fortunately for the nation these brilliant, experienced jurists had not had a chance to work their magic on the nation, yet.
“you want to see somebody run over and marginalized…”
you must mean someone like clarence thomas who does not know law or have experience outside the sup ct.
but funny thing, bmaz,
thomas has not been run over or marginalized at all.
empathy, kindness, open-mindedness,intellect, scepticism, intellectual honesty, understanding of american politics,
are all qualities that i view as far more important than judicial experience or legal brillance.
@16/17 – AMEN! You need a tent and back up singers swaying and clapping for those EOH.
@19/25- scarey and depressing, but true. Miers would outclass Kagan as a pick and to have someone less qualified than Kavenaugh and whose main claim to fame is her argument that Obama can toss lawyers representing terrorist defendants into jail by Deciderating that they are providing support (by giving legal representation) – it’s pretty depressing. Apparently she’s good at raising money and getting group hugs from the same guys who wanted to put Jim Haynes on the 4th Cir. Yippee.
@34/35 – It is what we allow it to be. I think that everything has been set up to try to prevent it from becoming only and overtly such a political creatrue, but it could. One thing that keeps that from happening as outrageously as you might think it would is that the law is a much more complicated and complex thing than many justice-sayers and politicizers understand. The ripples from a set of decisions and determinations has so many consequences that in the end, even the overtly political creatures like Cheney and Bush shy a bit away from putting someone too horribly underqualified in the law onto the Sup Ct bench.
It’s a bit like setting up a medical team to take on the cases of only the most nationally prominent. It might be nice to have on that team someone who is really concerned with making sure that a Mother Theresa runs just as much chance as a Warren Buffet at getting access to the best medical treatment – but if that member of the team has no training in medicine and just brings the “right” (but untutored) sense of justice and welfare and moral guide with them, you put the patients much more at risk than if you had someone who was the right moral guide AND the proper medical training.
There are lawyers out there who aren’t Kagans.