Tax the Deadbeats, Tax the Banksters

The narrative the banksters and their enablers have used to fight a foreclosure moratorium focuses on property values. If we put off foreclosures, they argue, it’ll have detrimental effects on the local community, not least by (continuing to) drive down local property values.

Now, the entire premise ignores the fact that the banksters have been sitting on a bunch of shadow inventory for years; the banks have been in no rush to foreclose on these properties and write down the losses, and Treasury has been happy to string out foreclosures to avoid a hit on the housing market.

But there’s another problem with that narrative.

If property values are falling because the properties are falling into disrepair, that’s partly the fault of the banks.

If property values are going down because no one is mowing lawns and preventing squatters, then that’s partly because banks are deadbeat neighbors who are not paying for the upkeep on the houses they own.

And, as this post from Mike Konczal (subbing for Ezra) notes, those deadbeat banks are costing local communities a fortune.

At $20,000 a pop, three vacant, unsecured and abandoned properties is the same as a teacher’s salary.

As Konczal explains, LA recently figured out a way to do something about the deadbeat banksters ruining our communities:

Given the high economic and social costs, the Los Angeles City Council, led by community activists including Alliance of Californians for Community Empowerment and others, as well as city workers who are members of SEIU Local 721 and L.A. Council member Richard Alarcon, did the sensible economic thing: They proposed a tax on abandoned and unkempt properties.

The details: “L.A.’s City Council recently passed a ‘foreclosure registry’ ordinance, requiring lenders to maintain foreclosed properties or be fined $1,000 per day, up to $100,000 a year. Lenders will have 30 days to fix problems before fines set in.”

What a sensible and elegant policy solution. This encourages banks to find suitable negotiations with homeowners to keep people in their homes. It has a serious stick to require banks to actually obey the law when it comes to the destruction of blight in neighborhood.

It works because everyone is well-incentivized to do their jobs; the city will collect money, which it loves to do, if the banks don’t comply. Citizens have a means to report blight, which they want to do to keep their neighborhoods well functioning and safe. In fact, cool online innovations like SEIU’s “Hoodwinked LA” Web page, which allows citizens to track foreclosed properties to report to city officials, have been created to empower people. And banks will avoid destroying neighborhoods out of neglect lest they pay a tax, which they had no incentive to do previously. The thing practically runs itself.

Not only does this policy have important benefits for local communities, not only does it incent everyone to modify loans and prevent foreclosures.

But it highlights the fact that banks are the deadbeats destroying your local community, not individual homeowners.

I hope as other communities follow LA’s example, they call this the “Deadbeat Bank Tax.”

Update: Via Atrios, here’s a heart-breaking story of a young boy who died in a foreclosed home’s pool. When his parents tried to sue for wrongful death, they couldn’t sort out who actually owned the house.

It took months for the family’s attorney, Janet Spence of Pembroke Pines, to sort through the property’s muddied chain of title possessions and transfers. At one point, Spence said, the home had two separate foreclosure actions pending simultaneously.

Spence also has faced some of the same paperwork irregularities that have put the nation’s foreclosure cases on indeterminate hold.

Several documents transferring the mortgage appear to be flawed or possibly fraudulent, with conflicting dates. Two documents show that the mortgage was transferred from one mortgage company to an affiliated company in November 2007 and again in February 2008.

One of the questionable documents was generated by the Florida Default Law Group in Tampa, one of four law firms that are under state investigation for allegedly “fabricating and/or presenting false and misleading documents in foreclosure cases,” according to the Florida Attorney General’s Office.

COMPLEX TRAIL

Because of the confusing paper trail, Spence has named 20 defendants in the case. They include banks that once owned the mortgage, companies that serviced the loan, property maintenance companies and even a company that was holding the mortgage for the banks.

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  1. masaccio says:

    This is an excellent idea. It’s worth noting that there are already laws in most cities creating fines for public nuisances. Aggressive enforcement against foreclosed houses is a cheap way to keep property values up.

  2. cbl says:

    wow. most excellent. and it has me thinking, what are Homeowner Associations doing about Bankster Blight ?

    and masaccio is right – oldnslow and I live in a small town where they’ll fine ya if you don’t mow your lawn often enough or leave the trash can at the curb for more than a day – gonna have to give ’em a call to see how they are dealing with this – as previously commented, our little town could be a poster child for this mess w/1 in 4 in Foreclosure

    • emptywheel says:

      In my conversations w/SEIU on the Where’s the Note campaign the other day, they said that it’s really hard to figure out when a house is in foreclosure or not (me, I just look at the notice on the door). But that’s one thing that makes it harder for municipalities to charge the deadbeats.

      • cinnamonape says:

        There are City Code Enforcers that are constantly on the prowl. It seems to me that they could easily trace ownership and vacancy. If a firm is allowing their home to become blighted it will stand out. If it is the result of a foreclosure then fine them at the higher rate.

        If the city has no mechanism for ascertaining foreclosures then they should be assuring that they do have one.

        • thatvisionthing says:

          Re

          It seems to me that they could easily trace ownership and vacancy.

          See EW’s last paragraph:

          Because of the confusing paper trail, Spence has named 20 defendants in the case. They include banks that once owned the mortgage, companies that serviced the loan, property maintenance companies and even a company that was holding the mortgage for the banks.

          Re

          If the city has no mechanism for ascertaining foreclosures then they should be assuring that they do have one.

          That’s one of the fallouts of MERS — by securitizing all the notes and keeping records of who owned the pieces away from the local recorder’s office, they were depriving the local governments of recorder fees to the tune of apparently billions overall. There’s a qui tam suit in California; I wish I knew how it was progressing.

          • thatvisionthing says:

            From Ellen Brown’s Homeowners’ Rebellion: Could 62 Million Homes Be Foreclosure-Proof?

            Local governments deprived of filing fees may also be getting into the act, at least through representatives suing on their behalf. Qui tam actions allow for a private party or “whistle blower” to bring suit on behalf of the government for a past or present fraud on it. In State of California ex rel. Barrett R. Bates, filed May 10, 2010, the plaintiff qui tam sued on behalf of a long list of local governments in California against MERS and a number of lenders, including Bank of America, JPMorgan Chase and Wells Fargo, for “wrongfully bypass[ing] the counties’ recording requirements; divest[ing] the borrowers of the right to know who owned the promissory note . . .; and record[ing] false documents to initiate and pursue non-judicial foreclosures, and to otherwise decrease or avoid payment of fees to the Counties and the Cities where the real estate is located.” The complaint notes that “MERS claims to have ‘saved’ at least $2.4 billion dollars in recording costs,” meaning it has helped avoid billions of dollars in fees otherwise accruing to local governments. The plaintiff sues for treble damages for all recording fees not paid during the past ten years, and for civil penalties of between $5,000 and $10,000 for each unpaid or underpaid recording fee and each false document recorded during that period, potentially a hefty sum. Similar suits have been filed by the same plaintiff qui tam in Nevada and Tennessee.

            Go California!

            • thatvisionthing says:

              From same article, MERS as disease:

              As alleged in a Nevada class action called Lopez vs. Executive Trustee Services, et al.:

              Before MERS, it would not have been possible for mortgages with no market value . . . to be sold at a profit or collateralized and sold as mortgage-backed securities. Before MERS, it would not have been possible for the Defendant banks and AIG to conceal from government regulators the extent of risk of financial losses those entities faced from the predatory origination of residential loans and the fraudulent re-sale and securitization of those otherwise non-marketable loans. Before MERS, the actual beneficiary of every Deed of Trust on every parcel in the United States and the State of Nevada could be readily ascertained by merely reviewing the public records at the local recorder’s office where documents reflecting any ownership interest in real property are kept….

              After MERS, . . . the servicing rights were transferred after the origination of the loan to an entity so large that communication with the servicer became difficult if not impossible …. The servicer was interested in only one thing – making a profit from the foreclosure of the borrower’s residence – so that the entire predatory cycle of fraudulent origination, resale, and securitization of yet another predatory loan could occur again. This is the legacy of MERS, and the entire scheme was predicated upon the fraudulent designation of MERS as the ‘beneficiary’ under millions of deeds of trust in Nevada and other states.

              chain chain chain — there seem to be so many weak links in that, so many ways to break the chain. You’d think lawyers would be having fun.

    • klynn says:

      EW, I did not mean a change of pace from your great posts. Just a change from the news cycles from the MSM.

  3. cinnamonape says:

    OT: Perhaps a pipe dream. But what if the lame-duck House held the feet of the GOP to the fire by limiting the amount of tax reduction to (say) the estimated amount of the Middle Class income tax…and state that no tax reduction should exceed this in the interest of deficit reduction.

    Thus the GOP in the new session would face a choice. The Middle Class Tax Cut…or the Wealthy Tax Cut? Or more deficit?

    Of course the Repugs have consistently held that only the “Wealthy 2% Create Jobs”. So their obvious ideological position SHOULD BE to ONLY give the wealthy the extension of the Bush tax cut. But what do you want to bet that they will suddenly be supporting “more deficit” and a Middle Class tax cut as well as an Upper Class.

    But this puts them in the position of having to assert that the Middle Class cuts actually do produce a stimulus, and perhaps more so that the ones to the wealthy.

  4. parsnip says:

    How can LA know which bank actually is responsible for the taxes and maintenance of the houses? Reading the sad story of Isaac Dieudonne makes it clear that the banks intentionally obscure the records to avoid liability, responsibility, and accountability.

    OTOH, National Mortgage News reports Lenders Turning Their Backs on MERS, Going Back to Paper, in response to borrowers filing legal challenges, and Washington Attorney General Peter Nickles saying foreclosures cannot proceed in the District of Columbia unless a mortgage deed is recorded in public land records.

    In another article from the same source Fannie plans to hang maintenance costs of its REOs (estimated at up to $150 million) on the servicers, due to suspended sales in the wake of the robo-signing issue. And the servicers’ investment ratings are being downgraded as a result, I presume.

  5. parsnip says:

    This sadly reminds me of the 1950’s and 1960’s ‘Urban Renewal’ era, when neighborhoods were intentionally propelled into decay in order to drive down the value of the housing stock. The HUD-financed ‘renewal’ failed to actually ‘renew’, and a bunch of rich guys bought huge swathes of prime real estate and built office buildings and condominiums for the urban gentry.

    It’s hard to believe that anyone could expect to pull off this kind of scheme once again, but they’re surely setting the stage for it. It would be interesting to see a map of foreclosures to find a pattern…..Other than the ones such as in Philadelphia and Baltimore which have already been reported. Last year I read an article from a non-profit which had a scathing map of Philly (not the one linked), which I can’t find. It reminds me of the map of South Central LA on this webpage:scroll down.

    • thatvisionthing says:

      Parsnip — write a diary and flesh this out for us? I’m halfway through reading the 20-some page Catherine Austin Fitts thing you linked to earlier, from 2002. It’s a huge story and I’m not encompassing it. In fact, the control fraud she describes seems so total that I feel totally helpless.

      The Myth of the Rule of Law by Catherine Austin Fitts

      Specifically re Philadelphia she wrote:

      How the Money Works: West Philadelphia, Pennsylvania

      Georgie lives upstairs from my apartment on 54th street. She does not understand how her richest friend could now be one of her poorest friends, and what am I going to do about it. Georgie can’t figure out why the Department of Justice will not pay Hamilton for work performed and accepted by the government. I have explained that the Department of Justice says that the US is now money laundering $500 billion – $1 trillion a year. Such a volume would require significant pro-active leadership from the US Treasury, the Federal Reserve and the Department of Justice. Between the fed wire system and tools like PROMIS software, it is fair to say that the war on drugs is more about keeping the price of drugs up and the costs down than denying retail narcotics distributors access to our children. We drew a map of the US to demonstrate that the four largest state markets in drug import-exports, California, Texas, New York and Florida, are also the four largest states in money laundering and the four largest states in banking and investment. California, New York, Texas and Florida along with the law firms, lobbyists and government contractors in the DC area generate almost half of the national campaign contributions.

      Georgie said that looking at the big picture was simply too overwhelming and wondered how this could affect our block in West Philadelphia? So we got out a piece of paper and started to estimate.

      Daily, two or three teenagers on the corner deal drugs across the street. Georgie and I did a simple exercise. We figured that our three street dealers had a 50% deal with a supplier, did $300 a day each, and worked 250 days a year. Their supplier could run the profits through a local fast food restaurant that was owned by a publicly traded company. So those three illiterate teenagers could generate approximately $2-3MM in stock market value and a nice flow of deposits and business for the Philadelphia banks and insurance companies. Indeed, if the DOJ is correct about $500 billion – $1 trillion of annual money laundering in the US, then about $20-40 billion should flow at some point through the Philadelphia Fed. Assuming a 20% margin and a 20x multiple, the total feasible stock market cap pre-leverage could be as much as $80-160 billion. Imagine the stock market crash if all those black teenagers stopped dealing drugs and all these kids stopped taking them.

      What does this say about a society that we believe that a highly sophisticated multibillion-dollar financial business is managed and controlled by black teenagers, Colombian warlords and a few Italians? How is it that a military-enforcement complex with a $350 billion budget and a Federal Reserve system that controls the bank wire transfer system is helpless to stop them?

      What’s HUD Got to Do with It?

      • captjjyossarian says:

        Has anyone with a decent investigative background examined the credibility of Catherine Austin Fitts claims? Mainstream media doesn’t seem to want to touch this ex-government official with a 10 ft pole… which gets me to worrying that she may be far more right than wrong.

  6. Peterr says:

    Nice post.

    I’m sure all the GOP folks who just love to use the power of the market will fall all over themselves cheering this proposal on. Or, you know, not. Raising taxes for anything on anyone is evil, dontcha know.

    (As long as we’re proposing new taxes, though, I’d also propose a tax on those who use “incent” as a verb. But maybe that’s another issue . . .)

  7. thatvisionthing says:

    sidebar — I’m watching your twitters — re Olbermann — don’t forget how Chuck Todd axed Mike Gravel from the Dem debates and effectively ended his candidacy before a single vote had been cast. I’ve been screaming about that ever since. And how Dennis Kucinich got excluded from the debates in Nevada. And how Ron Paul’s wins in audience polling after R debates were wiped away by networks — I remember that. We choose from the choices we are allowed to see. We were not allowed to see antiwar candidates as legitimate, and we were not allowed to hear them challenging frontrunners’ records and policies. Tampering seems like such a gentle little word for the monstrous harm corporations are capable of doing to elections.

  8. bigbrother says:

    I am dumping B of A in favor of a state chain… the guy at the main branch gave me a sob story on why they are raising account fees…no more securitization fees for them so they have to generate income another way! What about usury fees on credit cards?
    Wow they really have nerve complaining about not being able rob folks now that they have destroyed the housing market. No fees if you carry over $2k so it is a blind move to get more deposits. The crooks will do anything.
    Destroying neighborhood is Disaster Capitalism at it’s most vile form. Vampiring on your own.

    • thatvisionthing says:

      That’s just what I was thinking, hearing the word “blight” — thinking of Kelo and all the other ways the word “blight” has been used to take unblighted homes away from homeowners and give it to corporations in the name of serving state interests. How’d that work out?

      The City eventually agreed to move Kelo’s house to a new location and to pay substantial additional compensation to other homeowners. The redeveloper was unable to obtain financing and had to abandon the redevelopment project, leaving the land as an empty lot.

  9. harpie says:

    I’m down on the previous thread feeling like I’m getting all tangled up in Shelob’s webs.

    This post seems to be a breath of air, but then I get to @19. OY!

    • thatvisionthing says:

      I’m hoping Parsnip can write a cliff notes so I can get it. My brain is really very small and there’s no wikipedia entry for me to turn to. Which I find curious. The flavor of Fitts’ small wiki entry is that she’s a conspiracy theorist. No substance. Yet Parsnip has been linking to quite substantial articles.

  10. MadDog says:

    OT – Charlie Savage over at the NYT with an early review of Junya’s book:

    In Memoir, Bush Addresses 9/11 Policy Controversies

    Charlie cover the following topics that Junya blathers on about:

    The 9/11 Shoot-Down Order

    Interrogation

    Warrantless Wiretapping

    The Bush Legal Team

    The Constitutional Role of Congress

    I found the part about Warrantless Wiretapping interesting:

    …In his book, Mr. Bush says he was “blindsided” by the dispute and that he would not have sent his aides to Mr. Ashcroft’s hospital room if had known he was not acting as attorney general at the time. He also confirms that Robert Mueller, the director of the Federal Bureau of Investigation, threatened to resign, and explains why he backed down: “Some in the White House believed I should stand on my powers under Article II of the Constitution and suffer the walkout. Others counseled that I accept Justice’s objections, modify the program, and keep the administration intact. I was willing to defend the powers of the presidency under Article II. But not at any cost.”

    He added that he feared that his administration would implode and the details of the secret program would be exposed in a media firestorm, saying he was not eager to replicate the 1973 Saturday Night Massacre crisis, when the top two Justice Department officials resigned rather than carry out President Richard M. Nixon’s order to fire the Watergate prosecutor.

    • MadDog says:

      And this piece from The Bush Legal Team is as expected and is nothing but bullshit:

      …Mr. Bush wrote: “I have been troubled by the blowback against the intelligence community and Justice Department for their role in the surveillance and interrogation programs. … Legal officials in my administration did their best to resolve complex issues in a time of extraordinary danger to our country. Their successors are entitled to disagree with their conclusions. But criminalizing differences of legal opinion would set a terrible precedent for our democracy.”

      (My Bold)

      As I’ve said numerous times before:

      Namely, what they are saying is the following:

      “Our opponents are criminalizing policy!”

      But the truth of the matter is that it is they who are:

      “Politicizing criminality!”

      • MadDog says:

        And from the piece on The Constitutional Role of Congress, I’m left to wonder whether Junya (or Charlie) has a typo or whether this is indeed accurate:

        …”In retrospect, I probably could have avoided some of the controversy and legal setbacks by seeking legislation” regarding military tribunals, the wireless wiretapping program…

        (My Bold)

        Wireless or warrantless?

  11. harpie says:

    Thanks. If you have time, would you look at comments 41-43 on the previous thread, and tell me if you knew about those connections? Thanks.

      • thatvisionthing says:

        My brain is way too small.

        Ok, Austin Fitts had software in the ’90s that mapped HUD defaults and linked to database showing drug trafficking, and lo and behold they were the same places, and it was big business, and it was the CIA running drugs and laundering money and it was/is HUGE. HUD giant criminal enterprise. CIA giant criminal enterprise. Thomas Donahue wonderful servant to giant criminal enterprise, links go back 20 years to offshoring jobs and CIA, yet also was Secretary/Treasurer of the AFL-CIO from 1975-1995 (huh?). Meets with Timmeh Geithner, wonderful servant to giant criminal enterprise. Giant criminal enterprise goes back forever and spreads out forever and everything we can ever hope to do will be captured and subverted to giant criminal enterprise. Serfs up. Am I close?

        • thatvisionthing says:

          Is the upshot that giant criminal enterprise is systemic, that every single person can only ever be its servant and no one ever its master? One nation, one world, under giant criminal enterprise?

          Tell me again why we have a CIA and make it beyond law, oversight and reason?

          • harpie says:

            Yeah. That’s exactly how I was feeling. Ugh. And it was all supposedly to fight “communism”. And now it’s supposedly all to fight “terrorism”. But, all in support of [you’ve got it] the giant criminal enterprise. The Executive Branch is a monster. No checks and certainly no balances.

            *****************

            In lighter news…Go Celtics! Go Zenyatta!

          • harpie says:

            Don’t know if you’ll be back, thatvisionthing, but Mason agrees with the “giant systemic criminal enterprise” language in a couple of comments on his posting of his letter to DOJ regarding the 92 destroyed interrogation tapes. He says Racketeer Influenced and Corrupt Organizations [RICO] is how it’s described in the law. ;-)

            Read the the comments near the top of this thread.

  12. parsnip says:

    captjjyossarian @ 23

    Re: Catherine Austin Fitts

    She has been smeared by the government ‘mafia’ because she refused to go along with corruption when she was Assistant Secretary of HUD during Bush41, and later, when her firm Hamilton Securities was the low bidder on a HUD contract, and used its proprietary software to put defaulted HUD loans up for open bid. This cut out the crony insiders from buying the defaulted loans for pennies, and netted HUD several billion more dollars than under the insider method. Hamilton Securities was shut down by a witch hunt (accused of ‘bid rigging’ but no charges filed; the ‘investigation’ dragged on 4 years beyond the 60-day cutoff, courtesy of Judge Sporkin). Here’s the chapter about Hamilton Securities, from Dillon Read and the Aristocracy of Stock Profits. But before you read that, read Chapter 12 A Note on Protecting the Brand with Dirty Tricks. Fitts connects the defaulted HUD mortgages in LA to Gary Webb: same neighborhoods. What happened to Gary Webb?

    Fitts also names names in the rise of private prisons, and the policies that filled them.

    • captjjyossarian says:

      Yep, I read her aristocracy of stock profits series a few years ago. And if her work is to be believed, it makes perfect sense why there’s no coverage of her in mainstream media. I was just wondering if anyone has taken a decent look at her work and made sure it checks out.

      Some pieces sure seem to check out…. Judge Sporkin who you mention seems to have made a career out of defending a lot of bad actors. He defended the CIA during Iran Contra, he worked for the law firm defending Enron’s during it’s collapse and he then moved on to work for BP taking care of whistle blowers. He’s basically the head legal council of disaster capitalism.

      Also worth noting: Eric Holder made her wrap sheet.

      Basically, if you believe her then we don’t have a government containing a few bad actors. We have a mafia containing a few good actors. Within this framework, it’s difficult to believe that the banks will ever be truely reformed. More likely, they’ll keep rolling along until the entire system completely collapses.

    • Kathryn in MA says:

      Right! I cite this chapter when I talk about a motive for keeping cannabis illegal – prisons for profit and Halliburton profiting.

  13. MadDog says:

    And more OT – An “interesting” article in The Financial Times:

    Does torture work?

    The title of the article is misleading to say the least. There’s far more in play and under discussion than the misleading title would indicate.

      • harpie says:

        Wow.

        From Worthington:

        Bizarrely, Bush also attempts to explain how Abu Zubaydah began cooperating, in a troubling passage in which he seems to be trying to make out that waterboarding was some sort of specific test for Muslims. He writes, “His understanding of Islam was that he had to resist interrogation only up to a certain point. Waterboarding was the technique that allowed him to reach that threshold, fulfill his religious duty, and then cooperate.” He adds that Abu Zubaydah then explained, “You must do this for all the brothers.”

        Bush-and-the-Cheney-Gang were being compassionate!

  14. parsnip says:

    thatvisionthing @ 37

    It’s like election fraud and rigged voting machines. No one talks about it in ‘polite society.’

  15. harpie says:

    Great line from Amy Davidson at The New Yorker:

    A Content Man; Amy Davidson; The New Yorker; 11/3/10

    […] In an interview with Matt Lauer, Bush describes himself as “a content man.” The emphasis is on the second syllable; Bush has plenty of contentment, but, based on what’s been released from the book so far, he comes across as remarkably content-free. […]

  16. harpie says:

    I’m probably not understanding how this all works, but…

    Court of Appeals for the DC Circuit decision on Salahi; 11/5/10 [No. 10-5087] [pdf]

    http://pacer.cadc.uscourts.gov/common/opinions/201011/10-5087-1275767.pdf

    According to the CNN article faster links to @ 41:

    Mohammedou Ould Salahi was set to be released after a lower court ruled the government could not prove his association with the terrorist network, but the decision was reversed in light of recent trial cases that raised questions over how an individual is determined to be part of al Qaeda.

    Could they be referring to their own decision [which Judge Roberts has already [according to Andy Worthington] “demolished”]?

    Court of Appeals for the DC Circuit decision on al-Bihani; 1/5/10 [No09-5051] [pdf]

    http://www.scotusblog.com/wp-content/uploads/2010/01/CADC-ruling-in-Bihani-1-5-10.pdf

    Worthington wrote about it here [when the original Salahi decision was written]:

    Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims; Andy Worthington; 4/21/10

    http://www.andyworthington.co.uk/2010/04/21/mohamedou-ould-salahi-how-a-judge-demolished-the-us-governments-al-qaeda-claims/

    Worthington writes:

    [Judge Robertson] added that, “until very recently, the government has focused entirely on its assertion that Salahi was ‘part of’ al-Qaeda, relying on evidence of Salahi’s pre-capture support of al-Qaeda only to bolster that assertion,” but that, “In an eleventh hour brief, the government has invoked the ‘purposeful[] and material[] support’ standard that was approved in Al-Bihani v. Obama. […]

    And then about al-Bihani:

    This is a reference to a disturbing Court of Appeals ruling in January, in which two of the three judges on the panel denied the appeal of Ghaleb al-Bihani, a Yemeni cook for Arab forces supporting the Taliban, who lost his habeas petition in January 2009. In this contentious ruling, the two judges claimed that the President’s war powers are not “limited by the international laws of war,” provoking dissent from the third judge

    […]

    [Judge Robertson] added, “In any event, what the standard approved in Al-Bihani actually covers is ‘those who purposefully and materially supported such forces in hostilities against US Coalition partners,’” and “The evidence in this record cannot possibly be stretched far enough to fit that test.” [emphasis added]

    They couldn’t be referring to the Khadr fiasco, could they? That wasn’t a “trial”…Anyway, at the risk of sounding stupid I’ll “submit” this comment now. :-/

    • harpie says:

      Well, if I had only read the beginning of the decision, I could have ansered my own question..sheesh!

      The district court thus granted the writ and ordered Salahi released. Since then, however, this Court has issued three opinions—Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010); Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010); and Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010)—that cast serious doubt on the district court’s approach to determining whether an individual is “part of” al Qaida. We agree with the government that we must therefore vacate the district court’s judgment, but because that court, lacking the benefit of these recent cases, left unresolved key factual questions necessary for us to determine as a matter of law whether Salahi was “part of” al-Qaida when captured, we remand for further proceedings consistent with this opinion.

        • harpie says:

          “How an individual is determined to be part of al Qaeda”

          Sweeping U.S. victory on detainees; Lyle Denniston; 7/13/10

          http://www.scotusblog.com/2010/07/sweeping-us-victory-on-detainees/

          wrt: The DC Circuit Court of Appeals decision on Al-Adahni, written by Judge Randolph:

          Although the three-judge panel said it was not deciding the issue finally, it said that detention might be legal if the government has only “some evidence” to support captivity. Even a “preponderance of the evidence” standard may be too strict, it indicated.

          […]

          The panel summed up: “When the evidence is properly considered, it becomes clear that Al-Adahi was — at the very least — more likely than not a part of al-Qaida. And that is all the government had to show in order to satisfy the preponderance standard.

          […]

          It thus appears that, even if the Justice Department did not now take the [DC] Circuit Court’s hint to propose a “some evidence” standard for use in the remaining Guantanamo cases, the way the panel interpreted the preponderance standard would seem to ease the government’s burden of proof significantly. In some earlier detainee cases, before the Supreme Court’s series of rulings, the Bush Administration did take the view that “some evidence” should be sufficient to justify detentions by the military during a time of armed conflict.