Making a Murderer Part 2 Is a Brilliant Light Cast upon Depraved People — Wisconsin Cops and Prosecutors

Wisconsinites should watch Making a Murderer, Part 2,
and bear witness to the crucifixion of human beings by
Wisconsin at its most-depraved.
If it were in my power, I would make viewing both series
of Making a Murderer obligatory for Wisconsin
public school students and staff.

Revenge and malicious prosecutions — State terror in the Badger state

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"I hate injustice. I guess that's about the only thing I really do hate."
Ben Shahn, anti-fascist artist (1898–1969)

Madison, Wisconsin — We finished Making a Murderer, Part 2 (Laura Ricciardi and Moira Demos) with critical minds and open hearts.

Lifelong Wisconsinites, both my life partner and I felt we were bearing witness. Such is the power of this pioneering documentary.

Making a Murderer, Part 2 shows attorney Kathleen Zellner's dismantling another wrongful conviction of Steven Avery, and a second, equally dedicated defense team led by attorney Laura Nirider, working for the other wrongfully convicted victim, Brendan Dassey, (induced into a wild, false confession of sorts), in this account of the Wisconsin criminal justice system.

Step-by-step, piece-of-evidence by piece-of-evidence, Zellner offers not just a compelling case of Avery's innocence, but an equally compelling case of criminal guilt by Wisconsin cops and prosecutors.

Wisconsin is not equipped, not wired, to expose, challenge and change its hellacious criminal justice system. We need help.

This documentary series brings viewers a spectacle of brutality and state violence, what we did to Steven Avery and Brenden Dassey and their families, victims of a framing scheme perpetrated by the Manitowoc and Calumet County (Wisconsin) Sheriff's offices and multi-jurisdictional prosecutions in kangaroo federal and state courts.

Bearing witness in viewing a series is assuming a duty to speak out and state, this is what happened and this is not done in our name.

It means asking the Wisconsin people to consider that having prosecuted and convicted innocent people for horrific crimes, it follows that the guilty are free and likely not leading lives in the tradition of Bertrand Russell and 20th century radical pacifists.

Avery was framed for murder because he was about to expose the ugly realities of Wisconsin law enforcement in his $36 million civil lawsuit for his first wrongful conviction.

I don't know how these County cops live with themselves. Then again I don't think I really understand killers and those who would lie with the objective to destroy lives.

Making a Murderer Part 2 is a brilliant chronicle, showing viewers the moral equivalent of murder committed twice against Avery, and once against Dassey in east-central Wisconsin.

The murderers are Ken Kratz (disgraced former district attorney and sex offender); Mark Wiegert, (sergeant at the Calumet County Sheriff's Office); Tom Fassbender (Wisconsin Division of Criminal Investigation investigator); Gene Kusche, the Manitowoc County chief deputy sheriff under Sheriff Tom Kocourek; Manitowoc County Sheriff's Lt. James Lenk; and Sgt. Andrew Colborn, all of whom acted in their official capacities to imprison the innocent, and inflict the psychological and physical deterioration of Mrs. and Mr. Avery, and Barb, Brenden Dassey's mother. Dozens more.

What horrific human garbage. 

This visual presentation of torture inflicted on the Avery and Dassey families is critical to understanding what a few dozen yahoos in Wisconsin are capable of — a state crucifixion of ordinary people in Wisconsin, a pleasant place to live, a great place to grow up, but a region full of by-standers, ignoramuses, and cowards.
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I know. I grew up in east-central Wisconsin in Fond du Lac, about 45 miles southwest of Manitowoc.

I loved what for me was a privileged first 19 years amid nigger jokes, Jew jokes, and a population steeped in committed ignorance. But none of it touched me, though on more than one occasion I felt like I was bearing witness to a region steeped in stupidity and racism, and every public official bar none who failed to speak out.

The same dehumanization and madness behind racism are at play in Manitowoc and Calumet counties.
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There is plenty of footage in Making a Murderer Part 2 on Attorney General Brad Schimel (R), a typical Wisconsin Republican sadist who has kept the torture going.

Schimel was just defeated in his bid for reelection last November by a young Democratic candidate, Josh Kaul, another native of east-central Wisconsin and my hometown—Fond du Lac.

In the campaign for attorney general, crucifying the innocent was never an issue. It remains unclear how Kaul and the new governor, Tony Evers, also from east-central Wisconsin, will perform in their offices to put a stop to these obvious-to-any-rational-observer wrongful convictions.

With respect to Tony Evers, I don't think the man is equipped in intellect, character or inclination to correct an injustice through commutation or pardoning. Evers is just another by-stander, a bureaucratic non-entity.

When it comes to criminal justice and human lives, Wisconsin's political and legal cultures range from numb to malicious. Evers is numb.
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That addresses a question implicit in Making a Murderer Part 2: How did the Avery and Dassey crucifixions happen?

How do depraved criminals like Ken Kratz and the Calumet and Manitowoc County Sheriff's office get away with framing innocent people?

We in Wisconsin let them.

The injustice inflicted upon Avery and Dassey evokes Sacco and Vanzetti.

The innocent Sacco and Vanzetti were targeted, tortured and killed.

The killers murdered them because they could and because they would.

There is overwhelming evidence of corruption in Wisconsin / Manitowoc County. You yourself admit law enforcement let a violent rapist go free in 1985 ... and that was without being motivated by Avery's lawsuit. History repeating itself? #MakingAMurderer #MakingAMurdererPart2

— Making A Murderer - NeedlessThings (@Presumed_Guilty) November 21, 2018

This is the role of the police in American society: To carry out injustice.

What our role as citizens becomes is precisely what we make of it.

Viewing Making a Murderer, Part Two, it's clear that we as citizens gave cops and assorted killers a free pass to seek revenge against Avery and Dassey.

Avery was about to publicly display Manitowoc County as stupid and malicious, and Dassey was available.

It's the way it is here for killer cops, for Penny Brummer, and so many innocents to list.

Woke up at 5am with my daughter this morning and rewatched the last 2 episodes of @MakingAMurderer Thankful for women like @ZellnerLaw who demand justice and fight corruption. #FreeStevenAvery

— Hilarie Burton (@HilarieBurton) November 23, 2018

Watching Making a Murderer, Part 2 is to experience an ongoing hope that at some point, surely some decent force, some authority with a regard for liberty and humanity, is going to put a stop to this madness in Manitowoc.

After-all, the state and governmental authority are mere instruments to assure the liberty and happiness of the individual.

There is the writ of habeas corpus petition, the great writ, the last-chance for the innocent — weakened in 1996 in the Antiterrorism and Effective Death Penalty Act (AEDPA). [Thank you, Bill and Hillary Clinton for that.]

There's two broad methods judges can employ in considering post-conviction, habeas petitions in federal litigation.

Judges can consider the wisdom of Richard Posner (U.S. Court of Appeals for the Seventh Circuit, (1981-2017)), on judicial opinion writing in federal appellate court: "Be sure to read every case, statute, regulation article, treatise, etc., [case documents]," (p. 257, Reflections on Judging (Harvard University Press. 2013)).

Alternatively, an appellate judge such as David F. Hamilton can effectively stick his head in a hole, dismissing facts and understanding of police and judicial action against a prisoner of the state.

Hamilton and appellate judges Frank Easterbrook, Michael Kanne and Diane Sykes of the Seventh Circuit chose the head-in-hole approach to habeas jurisprudence.

"[O]ur job as a federal court reviewing a state conviction under § 2254(d) [application for a writ of habeas corpus] is not to consult scholarly literature in search of new best practices," intoned Hamilton in his astonishingly dismissive opinion that overturned a federal district court and a three-judge ruling granting habeas relief to Brendan Dassey, (p.111, Dassey v. Dittman).

Avery's attorney, Kathleen Zellner, was clearly appalled at this Dred Scott of Habeas litigation.

Reading Hamilton's opinion on intentional ignorance of scholarly literature, Zellner replies, icy and incensed: "Really? Why not? Why would you not be availing yourself of what experts have determined about false confessions?" (Episode 8; 24 minutes, 45 seconds).

So WI Department of "Justice" doesn't care about justice in Brendan's case. They want him to rot in prison because they can't admit they went after innocent 16 yr old boy to convict his uncle.#makingamurderer#cjreform https://t.co/hLxeFy3MfC

— Jerome Buting (@JButing) May 10, 2018

Steven Avery is demonstrably innocent. Avery's case will become a wrecking crew of injustice. We're that close.

When Avery wins his legal fight, Brendan Dassey will be released. He cannot be an accomplice to a crime that did not occur.

But have we come to public crucifixions in Wisconsin? Has Wisconsin really come to that?

"It 'came to that' the first time you sentenced a man to death you knew to be innocent."

The quote is from Spencer Tracy as a composite character of Robert H. Jackson and other jurists in Judgement at Nuremberg (1961), a film worthy of the topic.

Wisconsin does not have the death penalty, but the bodies are piling up.

Wrongful Conviction—Missourian David Robinson Walks Free

From left, Jennett McCaster, David Robinson and Pat Jackson
embrace after Robinson's release from the Jefferson City
Correctional facility May 14 in Jefferson City, Missouri.
Photo: Kassi Jackson, Southeast Missourian

"David Robinson walked away a free man Monday night, after nearly 18 years of being incarcerated for a murder he did not commit," writes Bob Miller in the Southeast Missourian.

David Robinson is another victim of police-prosecutor-prison state America. Innocence doesn't matter in a system that is simultaneously mindless and malicious.

Without the work of the Southeast Missourian newspaper bringing this injustice to the attention of the state, Robinson likely would remain in prison for life for a crime he did not commit.

From the AP:

Missouri Attorney General Josh Hawley reviewed a judge’s ruling in February that found a police detective was 'lacking in candor or competence, or both.' That detective’s investigation helped send Robinson to prison for life in the fatal shooting of Sheila Box in Sikeston in 2001. The detective has resigned.

Hawley also evaluated the evidence available for a retrial. Since Robinson’s sentencing, another man has confessed to killing Box and two witnesses have recanted.

So, we have a system of dishonest cops, dishonest prosecutors, indecent Dept of Corrections bureaucrats in a country of by-standers. The deliverables are obscene.

The local Missouri paper freed this man against every crooked cop, prosecutor and prison bureaucrat for whom taking a human life is a game.

Would you help imprison a man you knew to be innocent? Most people would not, but the fact is we say nothing about those who perpetrate such crimes on routine basis in Missouri, Wisconsin, every state where cruel injustice and lies are objectives.

On May 5, 2018, the Southeast Missourian writes in its lead editorial after the Missouri Supreme Court "ruled that Robinson's constitutional rights had been violated when police and the state prosecution, led at the time by the Missouri Attorney General's Office, unfairly procured and presented testimony they knew to be false.":

Scott County Prosecutor Paul Boyd on Thursday said effectively that Robinson was not exonerated, because the state could continue to hold him and try him again without violating double jeopardy. While technically correct, the Supreme Court has in effect declared Robinson innocent and will now require the state to prove his guilt. With the court's approval of his habeas claim, Robinson no longer has to prove his innocence. Meanwhile, the evidence of the stunningly unjust way the Sikeston Department of Public Safety and the prosecution treated Robinson is there for everyone to see in court documents and this newspaper's extensive reporting on the case. Perhaps some introspection of how the county dispenses justice is in order, or even some contrition toward Robinson and his family are more prudent now than the parsing of the definition of the word exoneration. Maybe it's time for leadership in the county or the city of Sikeston to acknowledge the injustice that has been done. For now, the city of Sikeston has asked for a federal investigation into its past police practices regarding this case, only stating that it respects the Supreme Court's decision. As if it could do anything but.

Robinson's case is a reminder the role our police and prosecutors play in upholding our constitutional principles, and the importance of an impartial appeals system.

It also highlights the importance of attorneys who care about truth and justice. The Bryan Cave Law firm took on Robinson's case pro bono. Congratulations to them for carrying Robinson's torch.

Meanwhile, the Missouri Attorney General's Office has defended the jury's conviction at every turn, perhaps as expected. An exoneration shouldn't come easily, because a jury's decision is essential to our justice system. But it seems like a system that uses our tax dollars to defend a bad conviction for the sake of doing so is not a healthy system.

Judge Darrell Missey, in his scathing review of the handling of this case, quoted a previous ruling, Strickler v Greene, in his report to the Missouri Supreme Court:

"A prosecutor must seek truth rather than victory, 'because the prosecutor is considered the representative of not an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.'"

We couldn't agree more. It's time for the State of Missouri to let Robinson go.

Will anything change in Missouri's 'justice' system? No.

How about around the country where wrongful convictions abound from the same brand of sub-human cops, prosecutors and bureaucrats? No.

We live in a country where state-committed injustice is every bit as unchallenged as in Saudi Arabia, Israel, Iran, pick a monarchy or theocracy.

In Wisconsin, we have innocents Penny Brummer, Branden Dassey, Steven Avery for starters who remain in prison.

You can be sure there are many more. Every jurisdiction needs a Conviction Integrity Unit or a human governor to commute and pardon as in the Penny Brummer, Branden Dassey, and Steven Avery cases.

So WI Department of "Justice" doesn't care about justice in Brendan's case. They want him to rot in prison because they can't admit they went after innocent 16 yr old boy to convict his uncle.#makingamurderer#cjreform https://t.co/hLxeFy3MfC

— Jerome Buting (@JButing) May 10, 2018

Tyranny or Rule of Law at Stake in Al-Marri Case

Update: Supreme Court to Hear Indefinite Detention Case, Al-Marri v. Pucciarelli

A small band of lawyers remain diligently at work fighting for a Supreme Court win in Al-Marri v. Pucciarelli that would answer a huge question for our democracy: Whether we are a tyranny or a country where the rule of law, due process, and habeas corpus reign supreme.

Typical of today's Republican Party, the GOP has come down on the anti-liberty side of the argument.

From the Brennan Center:

Question Presented – Does the Executive have legal authority to detain a legal resident arrested in the United States without charge by declaring him an 'enemy combatant'? This case challenges the President’s assertion of unchecked executive detention power over all individuals in the United States.

For more information see:

NYT: Supreme Court should rule that presidents cannot seize and detain indefinitely individuals in US without charges

Voting for President Matters

Update: See An Animosity to Civil Liberties, John Yoo, Totalitarian

via mal contends - The bare five-to-four majority in the Supreme Court decision, Boumediene v. Bush /Al Odah v. United States, preserving the writ of habeas corpus (in Latin, "you shall have the body") demonstrates that civil liberties in our country today is a partisan deliberation.

Civil liberties, among the rationales behind the founding of the United States of America, do not (with notable exceptions) enjoy a high regard in today's Republican Party.

The conclusion is clear that voting Democratic (however problematic the Party proves in many spheres of concern to progressives) is imperative, if preserving civil liberty is an objective.

Just consider if Robert Bork and not Anthony M. Kennedy, the author of Boumediene opinion, were on the Court today.

Kennedy was confirmed in 1988 after the U.S. Senate rejected Bork and his statist-reactionary jurisprudence that is hostile to the very concept of individual liberty.

Kennedy is no William O. Douglas, but we can be thankful that Robert Bork is not on the Court today supplying the fifth vote to entrench reactionaries' politcal power and destroy the liberty and due process rights of American citizens.

The stakes are high.

Scalia: The New Joe McCarthy

Update: Gitmo Ruling Enters The Election: 'One Of The Worst Decisions' In History

via mal contends - The hysterical dissent by the always colorful Justice Scalia in Boumediene v. Bush/Al Odah v. United States offers a glimpse into the fearful mind of the rightwinger in which can be viewed watery reflections of Senator Joe McCarthy.

[Pictured above-left are Center for Constitutional Rights staff and Co-Counsel, dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights.]

Scalia, scolding five of his breathen, offers his dissent from the majority’s decision, including his terrified opinion that, "It (the majority opinion) will almost certainly cause more Americans to be killed."

Wow. I never knew that habeas corpus, due process, the rule of law, and the separation of powers were such dangerous dynamics to have in a country.

Damn liberals. And that goes double for you, Jefferson, Madison and Hamilton.

We ought to bring back loyalty oaths and raise Joe McCarthy from the dead to expose these Islamo-fascists sympathizers who are going to get us killed.

But today is a day for celebration for liberty as we smile at the fears of Scalia and his ilk who never could stomach the notion that "the Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, (understanding) the writ of habeas corpus as a vital instrument to secure that freedom," or that quaint idea, in Hamilton's formulation, that the "... practice of arbitrary imprisonments, in all ages, is the favorite and most formidable instruments of tyranny." (Justice Kennedy)

As a commentator on this piece flushes out, those engaging in fearmongering combined with an implicit hostility to civil liberties tend to have as a goal the diminishment of said liberties.

Below-right is our famed Senator McCarthy pictured from the early 1950s, protecting America from the Communists and sympathizers among us (from McCarthyism, The Fight for America, 1952). You know, McCarthy even kind of looks like Scalia.

Landmark Supreme Court Win for Liberty Points Way for Dem Victory in November

Update: CCR Produces Analysis of Landmark Supreme Court Decision

via mal contends
The Supreme Court decision (in Boumediene v. Bush /Al Odah v. United States) is a historic affirmation of the principle of habeas corpus (in Latin, "you shall have the body"), and a rejection of the acclaimed right of the tyrant, George W. Bush in this instance, to imprison another with no sound recourse for the accused; in these cases, the detained prisoners at the U.S. base at Guantánamo.

Habeas corpus refers simply to the right of the accused to go before an impartial judge and challenge the rationale behind the denial of his/her liberty.

"One of the oldest and most basic legal protections, habeas corpus affords the incarcerated the right to stand before a judge and confront the charges presented against him or her. The Center for Constitutional Rights (CCR) has been sending habeas counsel to represent the prisoners at the base since winning the first Guantánamo case, Rasul v. Bush, in 2004, and applauds today’s decision," reads CCR's press release.

That's a modest statement.

It's fitting that CCR, an organization that grew out the civil rights movement— specifically Arthur Kinoy and the Kunstler brothers (nigga-loving Jews as they were known back then, and let's never forget, in the 1960s by the southern states' white power structures) and 1,000s more heroes of liberty whose names history will not record—researched and argued this landmark victory for liberty.

It is also sobering, as a NYT editorial notes today, that "... habeas hangs by a single vote in the Supreme Court of the United States—a reminder that the composition of the court could depend on the outcome of this year’s presidential election. The ruling is a major victory for civil liberties—but a timely reminder of how fragile they are."

Sobering, yes, but also inspiring of optimism for the coming November rejection of the Bush-Cheney-McCain crowd.

Barack Obama who is for the moment underperforming with white women will undoubtedly improve his standing as the campaign crystallizes how dangerous an instrument the Supreme Court has become to the cause of liberty, specifically women's liberty.

Lose any one of the five-member majority, and replace him/her with a Scalia/Roberts/Alito/Thomas clone, as John McCain has promised to do were he elected, and the right of a woman to choose will vanish. MAKE NO MISTAKE.

The decades-old victory by the feminist movement (to which Hillary Clinton and many of her supporters can proudly lay claim) for women to have the simple power over their own bodies means nothing to the hateful ideology that is prepared to eradicate the centuries-old habeas corpus rights.

Thus, look for Hillary's supporters to move decisively to Obama's camp as the repercussions of a John McCain win become clear and unity beats back the forces of hate and tyranny. Obama should be thinking about Hillary as a Supreme Court appointment for when he wins this fall.

Habeas Corpus Wins, Bush Loses; Obama Applauds SC Decision

Update IV: Justice 5, Brutality 4

Update III: Obama applauds the decision, McCain condemns it.

Update II: Justice Kennedy declared for the majority: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

Update: See also Supreme Court restores habeas corpus, strikes down key part of Military Commissions Act

The rule of law and due process right to habeas corpus review win, and Bush and his sons of anti-liberty crowd are not too happy.

The Center for Constitutional Rights, the civil liberties group that grew out of the civil rights movement, nails a well-earned victory.

That idiot who serves as the American president said, "It was a deeply divided court, and I strongly agree with those who dissented. And that dissent was based upon their serious concerns about U.S. national security."

The next thing you know, we'll stop torturing the accused and treat them as human beings.

Barack Obama Statement on Today's Supreme Court Decision:

Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy. We cannot afford to lose any more valuable time in the fight against terrorism to a dangerously flawed legal approach. I voted against the Military Commissions Act because its sloppiness would inevitably lead to the Court, once again, rejecting the Administration's extreme legal position. The fact is, this Administration's position is not tough on terrorism, and it undermines the very values that we are fighting to defend. Bringing these detainees to justice is too important for us to rely on a flawed system that has failed to convict anyone of a terrorist act since the 9-11 attacks, and compromised our core values.

CCR on Habeas Corpus for Guantanamo Bay Detainees

From the Center for Constitutional Rights:

Guantánamo Attorneys to Justices: Restore the Constitution

Combined Cases Will Determine Legal Fate of Men and Boys Held at Offshore Detention Center

NELL MCGARITY

WASHINGTON, D.C. – In a landmark human rights case with significant implications for the separation of powers, the Supreme Court today heard a challenge brought by the Center for Constitutional Rights (CCR) and co-counsel to the legality of Guantánamo Bay detentions.

This case will decide whether federal courts have any say in checking the power of the Executive Branch to hold men at Guantanamo indefinitely and outside of the law.

“All have been confined at Guantanamo for almost 6 years yet not one has had meaningful notice of the factual grounds of their detention,” said former Solicitor General Seth Waxman in his oral arguments.

Thirty-six of the 37 detainees involved in this suit have been in detention for more than five years without ever having faced formal charges or having a fair hearing before a civilian court.

Attorneys for the detainees—supported by dozens of former federal officials and legal experts—are asking the court to restore the right to habeas corpus—the basic right to challenge the legality of their detention—to the men and boys held at the offshore prison.

“We have been back and forth in the courts as the government has tried one maneuver after another to avoid the Supreme Court’s past rulings – that the detainees are entitled to challenge their detention in U.S. courts,” said Vincent Warren, executive director of CCR, which has organized legal representation for Guantánamo detainees since the prison opened in January 2002. “We hope the Supreme Court will end this travesty once and for all and provide full, fair and prompt hearings, which are the very foundation of a free society.”

The Court ruled in favor of the detainees in Rasul v. Bush (2004) and in Hamdan v. Rumsfeld (2006). Following the Hamdan decision, Congress passed the Military Commissions Act, which has kept Guantanamo prisoners in legal limbo.

“The precedent set in past Guantanamo Supreme Court cases—that every person detained has the right to a fair hearing, including those jailed at the detention center for almost six years—is a necessity for any country calling itself a nation under law,” CCR President Michael Ratner said.

The Court received more than two dozen amicus curiae (“friend of the Court”) briefs on behalf of the men and boys held at Guantánamo. Former military officials and diplomats, former Congressmen of both parties and a bipartisan group of non-government organizations showed their support of granting habeas rights.

More information:
CCR lawyers were the first civilian attorneys to visit clients at Guantánamo, in 2004, and have been petitioning on behalf of the men and boys there since the detention center opened six years ago. After winning the Rasul case in 2004, CCR coordinated the largest ever coalition of pro bono lawyers to defend the prisoners there, ensuring that nearly all have been represented.

CCR’s legal team comprises leading experts on human rights and related legal issues. They have spoken at various prestigious law schools, been interviewed on numerous national and local radio programs and have recently penned an op-ed that ran in the Washington Post on being the first attorneys ever to visit a former CIA “ghost” detainee.

CCR’s “Beyond Guantánamo” campaign is working to bring national awareness to the issues surrounding this landmark case. Notably, television ads are running this week on CNN and MSNBC, as well as a print ad in the Wall Street Journal. CCR’s ad was rejected, though, by the Fox News Channel. The “Beyond Guantánamo” campaign has also helped tens of thousands of people to send the President an early holiday present—a copy of the Constitution.

Important note:
CCR Executive Director Vincent Warren, CCR President Michael Ratner and leading CCR staff attorneys are available for both live and taped interviews on Dec. 5 and 6.

Vincent Warren became executive director of the Center for Constitutional Rights 2006. He spent seven years as national senior staff attorney with the American Civil Liberties Union, where he led national constitutional and impact litigation to advance civil rights and civil liberties and coordinated the legal efforts to respond to the devastation of Hurricane Katrina.

Michael Ratner is president of the Center for Constitutional Rights and served as co-counsel in Rasul v. Bush. Ratner is a world-renowned legal advocate who has taught at both the Columbia and Yale law schools. For more than three decades, he has represented individuals who have suffered injustice the world over—from East Timor and the South Bronx to Haiti and Guatemala. Last year, the National Law Journal named Ratner one of the 100 most influential lawyers in the United States and is the winner of this year’s Nation/Puffin Award. Ratner is the author of several books, including Guantánamo: What the World Should Know and the forthcoming The Trial of Donald Rumsfeld.

Gitanjali Gutierrez has been working on legal challenges to Guantanamo since 2003 and was a member of the legal team that argued the first Guantanamo case, Rasul v. Bush, before the Supreme Court in 2004. Following CCR's victory in Rasul, Gita was the first civilian attorney to meet with clients at the base and currently travels regularly to the detention center for client meetings. Last month, she became the first attorney to meet with a former CIA “ghost detainee.”

Shayana Kadidal is senior managing attorney of the Guantanamo Global Justice Initiative at CCR. In addition to supervising the Guantanamo litigation, he also works on CCR’s major case on the illegal NSA domestic spying program, CCR v. Bush, as well as the Center’s Patriot Act case, and has testified before Congress on the material witness statute.

Wells Dixon works on the Guantánamo Global Justice Initiative at CCR. His clients include Uighur prisoners cleared for release in 2003, a U. N.-mandate refugee from Somalia and former Baltimore-area resident Majid Khan, who was imprisoned in secret CIA “black sites” for more than three years before he was transferred to Guantanamo in Sept. 2006.
AL ODAH/BOUMEDIENE LEGAL ARGUMENT AND IMPLICATIONS

What the Supreme Court will consider in Al Odah v. United States:

1. Did the D.C. Circuit err in relying again on Johnson v. Eisentrager, 339 U.S. 763 (1950), to dismiss these petitions and to hold that Petitioners have no common law right to habeas protected by the Suspension Clause and no constitutional rights whatsoever, despite this Court’s ruling in Rasul v. Bush, 542 U.S. 466 (2004), that these Petitioners are in a fundamentally different position from those in Eisentrager, that their access to the writ is consistent with the historical reach of the writ at common law, and that they are confined within the territorial jurisdiction of the United States?

2. Given that the Court in Rasul concluded that the writ at common law would have extended to persons detained at Guantanamo, did the D.C. Circuit err in holding that Petitioners’ right to the writ was not protected by the Suspension Clause because they supposedly would not have been entitled to the writ at common law?

3. Are Petitioners, who have been detained without charge or trial for more than five years in the exclusive custody of the United States at Guantanamo, a territory under the plenary and exclusive jurisdiction of the United States, entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?

4. Should section 7(b) of the Military Commissions Act of 2006, which does not explicitly mention habeas corpus, be construed to eliminate the courts’ jurisdiction over Petitioners’ pending habeas cases, thereby creating serious constitutional issues?

What the Supreme Court will consider in Boumediene v. Bush:

1. Whether the Military Commissions Act of 2006 validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay.

2. Whether Petitioners’ habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.

Analysis on the Center for Constitutional Rights’ Argument

Petitioners in Al Odah argue that the precedent set by the Supreme Court in Rasul v. Bush in 2004 precludes the D.C. Circuit Court of Appeals’ conclusion that Guantanamo detainees have no common law right to habeas corpus protected by the Suspension Clause. The Suspension Clause, Article 1, Section 9, Clause 2 of the United States Constitution, provides that habeas corpus, such as it existed at common law, may be suspended by Congress only in cases of “rebellion or invasion.”

Furthermore, Petitioners challenge the D.C. Circuit’s reliance on Johnson v. Eisentrager to dismiss the detainee habeas corpus petitions, given that in Rasul, the U.S. Supreme Court ruled that the Petitioners are differently situated to those in Eisentrager, and are confined within an area in the exclusive territorial jurisdiction of the United States. Petitioners argue further that they are entitled to the writ of habeas corpus at common law, such as it existed historically, outside the definitions of the federal habeas statute, and thus are protected from any unlawful suspension of habeas by the Suspension Clause.

In addition, Petitioners argue that they are entitled to Fifth Amendment rights under the U.S. Constitution to not be deprived of liberty without due process of law, and to the protections of the Geneva Conventions. The Petitioners have been detained without a judicial hearing for well over five years, within an area under the exclusive control and jurisdiction of the United States. Petitioners further argue that any substitute procedures – and the review of those substitute procedures by the D.C. Circuit Court – that have been created are so limited and narrowly defined, as well as fraught with error – are no substitute for habeas corpus and due process.

Thus, Petitioners argue, the Military Commissions Act of 2006 cannot have validly and Constitutionally stripped Petitioners of their right to the writ of habeas corpus at common law.

In response, the Executive argues that “as aliens held outside the sovereign territory of the United States, [the detainees] enjoy no rights under the Suspension Clause. Second, even if they could invoke the Suspension Clause, it would not entitle them to relief because they seek an expansion of the writ well beyond its historic scope. And third, the [Detainee Treatment Act] in any event provides an adequate alternative to any habeas rights [these detainees] may have.”

In reality, Petitioners have been held for nearly six years at a U.S. Naval Base, in a territory under the exclusive control and jurisdiction of the United States, without any judicial process or hearing, despite the clear mandate of the Rasul court. They are not citizens of enemy nations, but citizens of our closest allies who maintain that they are innocent of any wrongdoing. Furthermore, they have been denied any meaningful process for a period that now stretches to six years – and threatens to continue indefinitely.

Two military officers who sat on Combatant Status Review Tribunals have stated in affidavits that the panels relied on shoddy evidence in order to reach preordained results -- no substitute for habeas corpus at law.
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The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.
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Supreme Court Membership and Restoration of Habeas Corpus for Guantanamo Bay Detainees

Update II: Read Jon Wiener's Arguing About Gitmo in The Nation.

Update: The transcript of today’s consolidated argument in Boumediene v. Bush (06-1195) and Al Odah v. United States (06-1196) is available at U.S. Oral Arguments Transcripts.

-End of delayed C-Span 3 stream of oral arguments -

Facing hostile questioning from Justices Scalia, Roberts and Alito, attorney Seth Waxman, seeking habeas corpus protections for Guantanamo Bay detainees ran into what appears as an authoritarian block representing the ideology of the George W. Bush administration.

Waxman is seeking for the accused access to the U.S. federal courts, via habeas corpus and other means, to challenge the detention and conditions of confinement of the accused.

Solicitor General Paul Clement, arguing for the Bush administration, faced skeptical and aggressive questioning from Justices Stevens, Souter, Breyer ("Habeas (writs) are supposed to be speedy"), and Ginsberg.

Clement seeks the Court to rule that the Bush administration may deny habeas corpus based on reasons of geographical jurisdiction, lack of POW status of detainees, and common and case law deference to the Executive branch in times of war.

Clement has also argued that the Congress and Executive branch have already spoken on the matter.

Justice Kennedy asked questions about the applicability of past decisions and the authority of a given U.S. Court of Appeals Court to declare the Military Commissions Act unconstitutional, and also raised the possibility of a lower federal court reviewing the issue.

Kennedy also asked Clement what appeared to be a skeptical question on the administrative procedures implementing the Military Commissions Act (MCA) in light of the detainees having now had no liberty for six years, and Clement's comment that: " ... the courts -- the lower courts should be instructed to with due cognizance for the fact these individuals have been detained six years and this is the process that has been provided in order to decide whether or not that continuing custody is lawful, they should expedite this to the greatest extent possible."

Asked Kennedy, "How can we fit your position when we have no jurisdiction here?", as the Congress and Executive branches have already spoken on the matter with the enactment of the MCA which bars federal courts from hearing detainee appeals, in what appears to be one very weak aspect of the Bush administration's case.

The capacity of the Congress and Executive branch to simply declare that the U.S. Court system may not rule on a legislative act flies in the face of centuries of American jurisprudence.

Justice Clarence Thomas, in keeping with his habits during oral arguments and what some observers see as a lack of legal curiosity, asked not a single question in this possible landmark case.

In rebuttal, Waxman said the traditional writ of habeas corpus does apply to situations of executive detention like what Bush has done at Guantanamo Bay, and that military tribunals are "inadequate".

Based on the ideologies in past decisions, here's a wild guess on how the Justices will rule:

John Paul Stevens (1975) – Will vote to restore ancient and fundamental protection of habeas corpus for Guantanamo Bay detainees, per the U.S. Constitution and international law.

Antonin Scalia (1986) – Will vote to uphold Bush administration military tribunals, with no habeas corpus protections.

Anthony M. Kennedy (1988) – ?

David H. Souter (1990) – Will vote to restore ancient and fundamental protection of habeas corpus for Guantanamo Bay detainees, per the U.S. Constitution and international law.

Clarence Thomas (1991) – Will vote to uphold Bush administration military tribunals, with no habeas corpus protections.

Ruth Bader Ginsburg (1993) – Will vote to restore ancient and fundamental protection of habeas corpus for Guantanamo Bay detainees, per the U.S. Constitution and international law.

Stephen G. Breyer (1994) – Will vote to restore ancient and fundamental protection of habeas corpus for Guantanamo Bay detainees, per the U.S. Constitution and international law.

Chief Justice John G. Roberts (2005) – Will vote to uphold Bush administration military tribunals, with no habeas corpus protections.

Samuel A. Alito, Jr. (2006) – Will vote to uphold Bush administration military tribunals, with no habeas corpus protections.

Al Odah v. U.S. Amicus Briefs page

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Evidence Of Innocence Rejected at Guantanamo

Update: Boumediene v. Bush and Al Odah v. United States arguments (are scheduled) be heard at: C-Span 3 11.15 (eastern), 10:15 (central), and ScotusBlog will be (after-arguments)-blogging at 11:15 eastern time this a.m.

The Washington Post has a front-page story by Carol D. Leonnig detailing the plight on an innocent man, student Murat Kurnaz, held at Guantanamo Bay, Cuba, since 2002.

In fact, Kurnaz was and is known by U.S. authorities to be innocent.

The "... intelligence community's consensus view that Kurnaz is innocent is detailed in newly released military and court documents that track his fate."

Excerpt from the piece:

The (U.S. military tribunal) process is "fundamentally corrupted," said Baher Azmy, a professor at Seton Hall Law School who represents Kurnaz. "All of this just reveals that they had the wrong person and they knew it."

He added: "His entire file reveals he has no connection with terrorism. None. Confronted with this uncomfortable fact, the military panel makes up evidence" to justify its claim that only real terrorists are incarcerated at Guantanamo Bay.

Cmdr. Jeffrey D. Gordon, a Pentagon spokesman, declined to comment on whether the military now believes that it erred in imprisoning Kurnaz, or to discuss the release of new records. He stressed that a substantial amount of information about Kurnaz remains classified. ...
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Center for Constitutional Rights Argues Guantánamo Due Process Case at SC Today

Update II: Boumediene v. Bush and Al Odah v. United States arguments can be heard at: C-Span 3 11.15 (eastern), 10:15 (central).

Update: ScotusBlog will be (after-arguments)-blogging at 11:15 eastern time this a.m.

The Center for Constitutional Rights (CCR) argues the Bush administration's nightmare case today, Al Odah v. United States, before the U.S. Supreme Court.

A companion case, Boumediene v. Bush, is also being argued today.

In Al Odah v. United States, the CCR is attempting to restore the right of accused inmates to challenge their detention and conditions of confinement, a long-cherished legal principle known as habeas corpus.

Numerous people held at Guantánamo Bay are believed to be innocent, and several have already been freed and sent back to their native countries.

But though the Bush administration retains a harsh and hostile view of civil liberties, even those inmates later found to be guilty deserve due process and access to an impartial court, according to liberty-supporting communities the world-over.

A decision against the Bush administration could put an end to indefinite detention and mandate an opportunity to be heard before an impartial court, a result that the Bush administration attempts to block.

As CCR webpage reads:

On June 28, 2004, the Supreme Court held in Rasul v. Bush, that the nearly-600 men imprisoned by the U.S. government in Guantánamo Bay, Cuba had a right of access to the federal courts, via habeas corpus and otherwise, to challenge their detention and conditions of confinement. Subsequent to this
decision, the habeas petitions were remanded to the district court for further proceedings.

Immediately after the Supreme Court's decision in Rasul, CCR and cooperating counsel filed 11 new habeas petitions in the United States District Court for the District of Columbia on behalf of over 70 detainees.

These cases eventually became the consolidated cases of Al Odah v. United States and Boumediene v. Bush, the leading cases determining the significance of the Supreme Court's decision in Rasul, the rights of non-citizens to challenge the legality of their detention in an offshore U.S. military base, and the constitutionality of the Military Commissions Act of 2006.

Al Odah v. U.S. Amicus Briefs page

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Gonzo on Habeas Corpus Was the Perfect Bushie

That Bush could let an Attorney General express the opinion that the "U.S. Constitution doesn’t expressly recognize habeas corpus" and not fire the person as both an unimpressive lightweight and an ignoramus with no understanding of the liberties enshrined in our Constitution is revealing of Bush's shallow (shallow because the man does not hold deep and nuanced opinions) contempt for classical liberal thought.

Robert Parry has a great piece at Consortiumnews.com.

Writes Parry:

First, (Gonzo's comment) exposed the narrow, ideological thinking that has pervaded the legal analysis of Gonzales and other Bush administration lawyers.

Neoconservative and right-wing legal operatives have long functioned with the notion that if they could conjure up a clever legal argument – no matter how flimsy – that their argument must be accepted as sound or at least treated with the utmost seriousness. If we can devine a rationale, we must be right.

That self-absorbed thinking has been at the core of the legal theories behind George W. Bush’s treatment of profound issues such as presidential power, government secrecy, and limitations on the inalienable rights of individuals who are not in Bush’s inner circle.

... Article I, Section 9, of the Constitution states that “the 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.”

Liberty scares the hell out of rightwingers, and yet they repeat their "they hate us for our freedom" braying endlessly.

A reader objecting to the challenge here to Bush's appropriation of extra-constitutional powers in the Jose Padilla case commented:

Interesting. If the U.S. was an actual fascist state or descending into one, you wouldn't be able to say things like that without getting arrested or worse.

What escapes rightwingers is the fact that authoritarian and fascist states do not inflict their power on all citizens uniformly. Discrete minorities (like disaffected Muslims here) suffer disproportionally at the hands of the state.

If Bush were to go after the elites (like McCarthy and Nixon did) or after someone protected by a political culture of openness and civil liberties (like a news blogger in Wisconsin), the political reaction would be devastating to the administration.

That's why writers are able to say things without getting arrested or worse.

Liberty has a prominent placement in the Constitution.

But I wonder if Bush has ever read the document, despite his canned judges-ought-to-interpret-and-not-make-law sound bites.

Warning of the emergence of a new authoritarianism in the early 1980s, Prof. Richard Epstein writes in the preface to Prof. Macedo's The New Right v. the Constitution, "... partisans of the New Right advocate ... a fundamental narrowing of judicial protections of individual rights. ... But the New Right's claim to the Founders' legacy is dubious, its allegiance to the Constitution largely rhetorical, and its stature in relation to the great tradition of American constitutional thought unimpressive."

Epstein and Macedo's work applies well today to Bush and his Constitutional lightweights.

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