This will be a very significant showdown for the Constitution.

In the thread at my Seminal diary from today, there is discussion of whether there is a constituency either for or against the Constitution. This case might help answer that question.

I guess if you believed in Karma, part of the en banc would be just to make Bybee publically recuse.

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/10/27/BAMQ1AB9KF.DTL

The court said six of its 27 judges had disqualified themselves from the case, for reasons that were not disclosed. The six included Judge Jay Bybee, who as a Justice Department lawyer in the Bush administration wrote a March 2002 memo saying the president could legally transfer captives to foreign custody.

You never know what the context should or shouldn’t be, but I’ve also been looking at the Canadian Khadr (big brother, not the younger one at GITMO) proceedings. Right now, Canada is making Canadian Intel testify – and not ex parte – about their, and the US’s, roles in Khadr’s torture. And they are indicating that if they think confessions were abused out of Khadr, they aren’t going to extradite him to the US. A lot of threads are starting to come together. Whether you get a huge tangle or a piece of fabric will be up in the air for a bit still.

There has been the British proceeding, where Miliband has been arguing that info by British gov from the US indicating US participation in or complicity in torture of a British national had to be kept secret for “national security reasons. There, the court has progressed from a very cautious position, where they were initially very deferential to gov’s assertions of state’s secrets issues and, as they were presented ex parte with more info, they got less deferential and began to demand more, then they went so far as to solicit appeals of their earlier secrecy rulings and are now coming out on the side of ordering the release of the info.

In Canada, much of the Maher Arar investigation and legal filings was conducted in great secrecy. This article (mostly on Khadr) notes the prior secrecy and contrasts it with the current Khadr proceeding.

The current proceeding involves a US extradition request for Khadr. And in connection with that proceeding, a judge has made Canadian intel (testifying under pseudonyms and behind a screen though) fess up to a number of things. First, they have fessed up that the US, Canada and Pakistani ISI had various conversations about all wanting to get Khadr, but none of them having anything to charge him with. Canadian intel has testified to

…the delicate dance that went on between Ottawa, Islamabad and Washington. It seems everyone wanted information from Khadr but no one had the evidence to charge him – until Khadr confessed – which is the crux of the case.

They have testified that the US paid Pakistani ISI (big Taliban supporters) $500,000 to disappear Khadr into Pak custody and also that after the Oct 2004 “arrest” of Khadr in Pakistan, the US originally wanted Pakistan to turn over Khadr to a US operated black site or GITMO, “but that the Canadians and Pakistanis refused to consent to his transfer.” Even Pakistan didn’t want to ship a guy to a US black site. There’s a proud moment.

Khadr has claimed that he was abused the first 20 days in Pakistani custody, as a joint Pakistani/FBI effort.

…Khadr also told her he was forced to stand for lengthy periods, only allowed to sleep a couple of hours at a time, and repeatedly interrogated by the FBI during his first 20 days in the custody of Pakistan’s intelligence service, ISI.
“He used the words beating – the beating he described was blows to the head,” Christine said.
“He was clearly upset by the treatment he had received.”
The Canadian Intelligence Security Service agent testified Khadr also told her one Pakistani officer apologized for the mistreatment, saying it was “the American way of handling things.”

emph added

As Miliband has in the UK, one of the Canadian intel assertions has been that national security is involved, because, for example, discussing what Canada knew/knows about Pakistani prisoner abuse is a “national security” issue.

The Crown objected on national security grounds when defence lawyer Nate Whitling questioned Christine about what CSIS knew at the time about Pakistan’s reputation as a gross violator of human rights.
Justice Christopher Speyer appeared frustrated at the objection, saying the issue of Pakistan’s human-rights record went to the “heart” of Khadr’s defence against extradition.
“This is a critical part of the case,” Speyer said.
“I can’t think of anything more germane with respect to an intelligence service than as to how they treated individuals.”

The British court, so far, is also lining up on the “acknowleging that Americans and Moroccan abused a British resident in their custody is NOT a matter of national security – it’s a fact in a torture claim” side.

And that swings us through the US heartland, where a similar issue was about to get to the Sup Ct in the Higazy case. There, the FBI was “interviewing” an Egyptian man after 9/11 by telling him that they were going to have his sister picked up by Egyptian intel for questioning. A very similar issue of what the FBI knew about Egyptian handling of prisoners and what this threat would realistically mean to Mr. Higazy (who ended up confessing to something that could have easily landed in in a DOJ approved torture site or disappeared to Egypt or Syria or GITMO), who was in fear for his sister’s life and safety after the threat. What did the FBI know? Well, Coleman and Clooney have filled us in, but it is never going to become a part of the judicial record because Obama slid in a settlement with Higazy just last month. A relatively quiet settlement of that abuse suit – timed not too distantly from the settlement of the Horn suit.

All of which gives a little extra perspective to the Chi-Town arrests of Canadians, but not for any plot involving the US. For allegedly plotting against a Danish paper. They didn’t turn the info over to Denmark and ask Denmark to pursue, instead – we picked up directly and issued a statement explaining why we could do that (arrest Canadian residents who happen to be in the US for a plot against Denmark).

U.S. Attorney Patrick J. Fitzgerald said in a statement that “law enforcement has a duty to be vigilant to guard against not just those who would carry out attacks here on our soil but those who plot on our soil to help carry out violent attacks overseas.” [unless they are plotting massive kidnap to torture programs for a US president, or to pad out lies to take a nation to war and create millions of refugees and victims – that they can do here with no problem and even with an OLC opnion authorizing them].

Ok – not so much the bracketed parts. But we are now laying the groundwork for pressure on Canada to take action directly against Khadr if they don’t extradite, following the Fitzgerald model. Also, we now pad out the Obama model of renditions. Now anyone can be shipped anywhere for any kind of prosecution involving any countries. That’s nifty – you can get Syria to prosecute Mohamed for plots against Afghanistan. And the admissibility of his statements can be analyzed under Syrian law then. Super duper nifty.

So to get it straight, Comey files an affidavit and DOJ turns a blind eye and Khalid el-Masri can be kidnapped and tortured by the US and US courts will not entertain his case; but some guys from Canada are allegedly plotting against Denmark and THAT is a case for the US courts. Uh huh. Makes sense. Or not. A torture regime gets to snatch foreign nationals from one country up and try them for plotting against other nations. How could that kind of precedent ever go wrong?

Anyway – lots of threads. And both weavers and tanglers each trying to accomplish their separate goals. Karma meet Kismet meet Fate meet the Devil meet the Deep Blue Sea meet, maybe, at some point, Justice. Or maybe not.