Posted by rogerhollander in Civil Liberties, Constitution, Criminal Justice, History, Wikileaks.
Tags: amy goodman, Birgitta Jonsdottir, bradley manning, collateral murder, Democracy Now, denis moynihan, foia, julian assange, kissinger, kissinger cables, roger hollander, wikileaks
WikiLeaks has released a new trove of documents, more than 1.7 million U.S. State Department cables dating from 1973-1976, which they have dubbed “The Kissinger Cables,” after Henry Kissinger, who in those years served as secretary of state and assistant to thepresident for national security affairs
.Henry Kissinger. (Flickr/Cliff CC-BY)
One cable includes a transcribed conversation where Kissinger displays remarkable candor: “Before the Freedom of Information Act, I used to say at meetings, ‘The illegal we do immediately; the unconstitutional takes a little longer.’ [laughter] But since the Freedom of Information Act, I’m afraid to say things like that.”
While the illegal and the unconstitutional may be a laughing matter for Kissinger, who turns 90 next month, it is deadly serious for Pvt. Bradley Manning. After close to three years in prison, at least eight months of which in conditions described by U.N. special rapporteur on torture Juan Ernesto Mendez as “cruel, inhuman and degrading,” Manning recently addressed the court at Fort Meade: “I believed that if the general public, especially the American public, had access to the information … this could spark a domestic debate on the role of the military and our foreign policy in general, as well as it related to Iraq and Afghanistan.”
These words of Manning’s were released anonymously, in the form of an audio recording made clandestinely, that we broadcast on the “Democracy Now!” news hour. This was Bradley Manning, in his own voice, in his own words, explaining his actions.
He testified about the helicopter gunship video that he released to WikiLeaks, which was later made public under the title “Collateral Murder.” In stark, grainy black-and-white, it shows the gunship kill 12 men in Baghdad on July 12, 2007, with audio of the helicopter crew mocking the victims, celebrating the senseless murder of the people below, two of whom were employees of the Reuters news agency.
Manning said: “The most alarming aspect of the video to me, however, was the seemingly delightful bloodlust the aerial weapons team. They dehumanized the individuals they were engaging and seemed to not value human life by referring to them as ‘dead bastards,’ and congratulating each other on the ability to kill in large numbers.”
Reuters had sought the video through a Freedom of Information request, but had been denied. So Manning delivered the video, along with hundreds of thousands of other classified electronic documents, through the anonymous, secure online submission procedure developed by WikiLeaks. Manning made the largest leak of classified documents in U.S. history, and changed the world.
The WikiLeaks team gathered at a rented house in Reykjavik, Iceland, to prepare the video for public release. Among those working was Birgitta Jonsdottir, a member of the Icelandic parliament. She told me: “When I saw the video in February 2010, I was profoundly moved. I was moved to tears, like many people that watch it. But at the same time, I understood its significance and how it might be able to change our world and make it better.”
Jonsdottir co-founded the Icelandic Pirate Party, a genuine political party springing up in many, mostly European countries. A lifelong activist, she calls herself a “pixel pirate.”
The “Collateral Murder” video created a firestorm of press attention when it was first released. One of the soldiers on the ground was Ethan McCord, who rushed to the scene of the slaughter and helped save two children who had been injured in the attack. He suffers from post-traumatic stress disorder. He recently penned a letter of support for Bradley Manning, writing: “The video released by WikiLeaks belongs in the public record. Covering up this incident is a matter deserving of criminal inquiry. Whoever revealed it is an American hero in my book.”
In the three years since “Collateral Murder” was released in April 2010, WikiLeaks has come under tremendous pressure. Manning faces life in prison or possibly even the death penalty. WikiLeaks founder Julian Assange spent a year and a half under house arrest in Britain, until he sought refuge in the Ecuadorean Embassy in London, where he has remained since June 2012, fighting extradition to Sweden. He fears Sweden could then extradite him to the United States, where a secret grand jury may have already issued a sealed indictment against him. Private details from Jonsdottir’s Twitter and four other online accounts have been handed over to U.S. authorities.
WikiLeaks’ latest release, which includes documents already declassified but very difficult to search and obtain, is a testament to the ongoing need for WikiLeaks and similar groups. The revealed documents have sparked controversies around the world, even though they relate to the 1970s. If we had a uniform standard of justice, Nobel laureate Henry Kissinger would be the one on trial, and Bradley Manning would win the Nobel Peace Prize.
Denis Moynihan contributed research to this column.
© 2013 Amy Goodman
Posted by rogerhollander in Barack Obama, Civil Liberties, Constitution, Criminal Justice.
Tags: bradley manning, commander-in-chief, constitution, Criminal Justice, denise lind, jacob chambderlain, kevin gosztola, military trial, roger hollander, rule of law, speedy trial, torture, wikileaks
Roger’s note: 1000 days in prison without trial is not considered by military judge Colonel Denise Lind, to be a violation of the accused’s right to a speedy trial. The standard is 120 days. But wait a second, Bradley Manning is a soldier and his commander in chief, the president of the United States has already convicted him, stating not that he is accused of breaking the law but that in fact he did break the law (http://www.politico.com/news/stories/0411/53601.html). Talk about justice.
Here is a comment from DarwinsBeagle in response to the judge’s decision:
80,000 American citizens are now held in solitary confinement for years, decades and lifetimes. The depravity of this society is unparalleled in human history. Manning is a prime example of how this vicious and sick society deals with people. This could be any one of us. All the while, they rubberstamp their criminality with court rulings like this one. Truly disgraceful. From www salem-news dot com:
His cell is approximately six feet wide and twelve feet in length. The cell has a bed, a drinking fountain, and a toilet. The guards at the confinement facility are professional. At no time have they tried to bully, harass, or embarrass PFC Manning. Given the nature of their job, however, they do not engage in conversation with PFC Manning.
At 5:00 a.m. he is woken up. Under the rules for the confinement facility, he is not allowed to sleep at anytime between 5:00 a.m. and 8:00 p.m. If he attempts to sleep during those hours, he will be made to sit up or stand by the guards.
He cannot see otherinmates from his cell. He can occasionally hear other inmates talk. Currently, there are no other inmates near his cell.
He is allowed to receive letters from those on his approved list and from his legal counsel. If he receives a letter from someone not on his approved list, he must sign a rejection form. The letter is then either returned to the sender or destroyed.
Due to being held on Prevention of Injury (POI) watch: PFC Manning is held in his cell for approximately 23 hours a day.
The guards are
required to check on PFC Manning every five minutes by asking him if he is okay. PFC Manning is required to respond in some affirmative manner.
At night, if the guards cannot see PFC Manning clearly, because he has a blanket over his head or is curled up towards the wall, they will wake him in order to ensure he is okay.
He receives each of his meals in his cell.
He is not allowed to have a pillow or sheets.
He is not allowed to have any personal items in his cell.
He is only allowed to have one book or one magazine at any given time to read in his cell.
The book or magazine is taken away from him at the end of the day before he goes to sleep.
He is prevented from exercising in his cell. If he attempts to do push- ups, sit-ups, or any other form of exercise he will be forced to stop.
He does receive one hour of “exercise” outside of his cell daily. He is taken to an empty room and only allowed to walk. PFC Manning normally just walks figure eights in theroom for the entire hour. If he indicates that he no longer feels like walking, he is immediately returned to his cell.
When PFC Manning goes to sleep, he is required to strip down to his boxer shorts and surrender his clothing to the guards. His clothing is returned to him the next morning.
In March 2011, they began stripping Manning naked, depriving him of his glasses as well.
BY ANY STANDARD THIS IS TORTURE; VENGEFUL PUNISHMENT AUTHORIZED BY PRESIDENT OBAMA HIMSELF.
WE USED TO SAY JOKINGLY THAT “MILITARY JUSTICE” IS AN OXYMORON; TODAY WE CAN SAY WITH REASON THAT “AMERICAN JUSTICE” IS AN OXYMORON.
Published on Tuesday, February 26, 2013 by Common Dreams
Manning’s Right to a Speedy Trial Not Violated After 1,000 Days, Judge Rules
Pre-trial hearings move to a full court martial trial in June
- Jacob Chamberlain, staff writer
Bradley Manning has not had his rights violated while waiting in a cell for almost three years before being granted a trial, judge Colonel Denise Lind ruled in a pre-trial hearing Tuesday.
Bradley Manning. (Reuters / Jose Luis Magaua)
Manning’s lawyer, David Coombs, had argued that the prosecution was guilty of “extreme foot-dragging” and “shameful” lack of diligence, which violated Manning’s right to a speedy trial—in a final bid that could have had the charges against Manning dismissed.
A soldier in the military has had his or her speedy trial rights violated when it takes over 120 days before an arraignment, Kevin Gosztola reports at FireDogLake, which is the case for Manning. However, Lind ruled in favor of the prosecution who said some of those days didn’t actually count in the speedy trial rule, due to “excludable delays” initiated by the prosecution.
The pre-trial hearings will now be certain to move to a full court martial trial in June.
Saturday marked the 1,000th day Manning has been in military custody without trial, and protesters gathered in 70 locations around the world in solidarity with Manning.
The Guardian adds more detail:
The judge, Colonel Denise Lind, spent two hours reading out her judgment to a pre-trial hearing in Fort Meade, Maryland. She went through the procedures in preparing for trial in minute detail, concluding that the exceptional length of the case was almost entirely justified as a result of its uniquely complex and sensitive nature. [...]
Under the Rules of Court Martial 707, any member of the military who is prosecuted must be brought to trial – as measured by the date of his or her arraignment – within a “speedy trial clock” of 120 days of being detained. But there are grounds for excusable delays that set back the clock that include the need for counsel to prepare for trial in a complex case, an inquiry into the mental condition of the accused, and the time taken to obtain security clearance for classified information.
In Manning’s case, the defense and prosecution agreed that there had been 84 days of diligent work between the soldier’s arrest and his arraignment on 23 February 2012. But the two sides were in dispute over 330 days.
Kevin Gosztola is live blogging from the courtroom here.
Posted by rogerhollander in Barack Obama, Civil Liberties, Constitution, Criminal Justice, Democracy, War on Terror.
Tags: Abdulrahman, aclu, anwar awlaki, assassination, constituion, Criminal Justice, democracy, doj, drone missiles, due process, eric holder, extrajudicial killings, glenn greenwald, global battlefield, john brennan, obama hit list, presidential assassination, roger hollander, samir khan, terrorism, war on terror
Roger’s note: OK, for the sake of argument, let’s give the benefit of doubt to the Obama supporters and say that he would never use this awesome power irresponsibly. But what about the next Reagan or Nixon or other future Republican wing nut — Bachman? Palin? In a democracy you just don’t give anyone, including the Chief Executive, the unlimited power of life and death, judge jury and executioner. This is such a no-brainer that one wonders about the collective lunacy that seems to have infected the Obama administration.
Published on Tuesday, February 5, 2013 by The Guardian
The president’s partisan lawyers purport to vest him with the most extreme power a political leader can seize
The most extremist power any political leader can assert is the power to target his own citizens for execution without any charges or due process, far from any battlefield. The Obama administration has not only asserted exactly that power in theory, but has exercised it in practice. In September 2011, it killed US citizen Anwar Awlaki in a drone strike in Yemen, along with US citizen Samir Khan, and then, in circumstances that are still unexplained, two weeks later killed Awlaki’s 16-year-old American son Abdulrahman with a separate drone strike in Yemen.
Since then, senior Obama officials including Attorney General Eric Holder and John Brennan, Obama’s top terrorism adviser and his current nominee to lead the CIA, have explicitly argued that the president is and should be vested with this power. Meanwhile, a Washington Post article from October reported that the administration is formally institutionalizing this president’s power to decide who dies under the Orwellian title “disposition matrix”.
When the New York Times back in April, 2010 first confirmed the existence of Obama’s hit list, it made clear just what an extremist power this is, noting: “It is extremely rare, if not unprecedented, for an American to be approved for targeted killing.” The NYT quoted a Bush intelligence official as saying “he did not know of any American who was approved for targeted killing under the former president”. When the existence of Obama’s hit list was first reported several months earlier by the Washington Post’s Dana Priest, she wrote that the “list includes three Americans”.
What has made these actions all the more radical is the absolute secrecy with which Obama has draped all of this. Not only is the entire process carried out solely within the Executive branch – with no checks or oversight of any kind – but there is zero transparency and zero accountability. The president’s underlings compile their proposed lists of who should be executed, and the president – at a charming weekly event dubbed by White House aides as “Terror Tuesday” – then chooses from “baseball cards” and decrees in total secrecy who should die. The power of accuser, prosecutor, judge, jury, and executioner are all consolidated in this one man, and those powers are exercised in the dark.
In fact, The Most Transparent Administration Ever™ has been so fixated on secrecy that they have refused even to disclose the legal memoranda prepared by Obama lawyers setting forth their legal rationale for why the president has this power. During the Bush years, when Bush refused to disclose the memoranda from his Office of Legal Counsel (OLC) that legally authorized torture, rendition, warrantless eavesdropping and the like, leading Democratic lawyers such as Dawn Johnsen (Obama’s first choice to lead the OLC) vehemently denounced this practice as a grave threat, warning that “the Bush Administration’s excessive reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the [OLC] upsets the system of checks and balances between the executive and legislative branches of government.”
But when it comes to Obama’s assassination power, this is exactly what his administration has done. It has repeatedly refused to disclose the principal legal memoranda prepared by Obama OLC lawyers that justified his kill list. It is, right now, vigorously resisting lawsuits from the New York Times and the ACLU to obtain that OLC memorandum. In sum, Obama not only claims he has the power to order US citizens killed with no transparency, but that even the documents explaining the legal rationale for this power are to be concealed. He’s maintaining secret law on the most extremist power he can assert.
Last night, NBC News’ Michael Isikoff released a 16-page “white paper” prepared by the Obama DOJ that purports to justify Obama’s power to target even Americans for assassination without due process (the memo is embedded in full below). This is not the primary OLC memo justifying Obama’s kill list – that is still concealed – but it appears to track the reasoning of that memo as anonymously described to the New York Times in October 2011.
This new memo is entitled: “Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of Al-Qa’ida or An Associated Force”. It claims its conclusion is “reached with recognition of the extraordinary seriousness of a lethal operation by the United States against a US citizen”. Yet it is every bit as chilling as the Bush OLC torture memos in how its clinical, legalistic tone completely sanitizes the radical and dangerous power it purports to authorize.
I’ve written many times at length about why the Obama assassination program is such an extreme and radical threat – see here for one of the most comprehensive discussions, with documentation of how completely all of this violates Obama and Holder’s statements before obtaining power – and won’t repeat those arguments here. Instead, there are numerous points that should be emphasized about the fundamentally misleading nature of this new memo:
1. Equating government accusations with guilt
The core distortion of the War on Terror under both Bush and Obama is the Orwellian practice of equating government accusations of terrorism with proof of guilt. One constantly hears US government defenders referring to “terrorists” when what they actually mean is: those accused by the government of terrorism. This entire memo is grounded in this deceit.
Time and again, it emphasizes that the authorized assassinations are carried out “against a senior operational leader of al-Qaida or its associated forces who poses an imminent threat of violent attack against the United States.” Undoubtedly fearing that this document would one day be public, Obama lawyers made certain to incorporate this deceit into the title itself: “Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of al-Qaida or An Associated Force.”
This ensures that huge numbers of citizens – those who spend little time thinking about such things and/or authoritarians who assume all government claims are true – will instinctively justify what is being done here on the ground that we must kill the Terrorists or joining al-Qaida means you should be killed. That’s the “reasoning” process that has driven the War on Terror since it commenced: if the US government simply asserts without evidence or trial that someone is a terrorist, then they are assumed to be, and they can then be punished as such – with indefinite imprisonment or death.
But of course, when this memo refers to “a Senior Operational Leader of al-Qaida”, what it actually means is this: someone whom the President – in total secrecy and with no due process – has accused of being that. Indeed, the memo itself makes this clear, as it baldly states that presidential assassinations are justified when “an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the US”.
This is the crucial point: the memo isn’t justifying the due-process-free execution of senior al-Qaida leaders who pose an imminent threat to the US. It is justifying the due-process-free execution of people secretly accused by the president and his underlings, with no due process, of being that. The distinction between (a) government accusations and (b) proof of guilt is central to every free society, by definition, yet this memo – and those who defend Obama’s assassination power – willfully ignore it.
Those who justify all of this by arguing that Obama can and should kill al-Qaida leaders who are trying to kill Americans are engaged in supreme question-begging. Without any due process, transparency or oversight, there is no way to know who is a “senior al-Qaida leader” and who is posing an “imminent threat” to Americans. All that can be known is who Obama, in total secrecy, accuses of this.
(Indeed, membership in al-Qaida is not even required to be assassinated, as one can be a member of a group deemed to be an “associated force” of al-Qaida, whatever that might mean: a formulation so broad and ill-defined that, as Law Professor Kevin Jon Heller argues, it means the memo “authorizes the use of lethal force against individuals whose targeting is, without more, prohibited by international law”.)
The definition of an extreme authoritarian is one who is willing blindly to assume that government accusations are true without any evidence presented or opportunity to contest those accusations. This memo – and the entire theory justifying Obama’s kill list – centrally relies on this authoritarian conflation of government accusations and valid proof of guilt.
They are not the same and never have been. Political leaders who decree guilt in secret and with no oversight inevitably succumb to error and/or abuse of power. Such unchecked accusatory decrees are inherently untrustworthy (indeed, Yemen experts have vehemently contested the claim that Awlaki himself was a senior al-Qaida leader posing an imminent threat to the US). That’s why due process is guaranteed in the Constitution and why judicial review of government accusations has been a staple of western justice since the Magna Carta: because leaders can’t be trusted to decree guilt and punish citizens without evidence and an adversarial process. That is the age-old basic right on which this memo, and the Obama presidency, is waging war.
2. Creating a ceiling, not a floor
The most vital fact to note about this memorandum is that it is not purporting to impose requirements on the president’s power to assassinate US citizens. When it concludes that the president has the authority to assassinate “a Senior Operational Leader of al-Qaida” who “poses an imminent threat of violent attack against the US” where capture is “infeasible”, it is not concluding that assassinations are permissible only in those circumstances. To the contrary, the memo expressly makes clear that presidential assassinations may be permitted even when none of those circumstances prevail: “This paper does not attempt to determine the minimum requirements necessary to render such an operation lawful.” Instead, as the last line of the memo states: “it concludes only that the stated conditions would be sufficient to make lawful a lethal operation” – not that such conditions are necessary to find these assassinations legal. The memo explicitly leaves open the possibility that presidential assassinations of US citizens may be permissible even when the target is not a senior al-Qaida leader posing an imminent threat and/or when capture is feasible.
Critically, the rationale of the memo – that the US is engaged in a global war against al-Qaida and “associated forces” – can be easily used to justify presidential assassinations of US citizens in circumstances far beyond the ones described in this memo. If you believe the president has the power to execute US citizens based on the accusation that the citizen has joined al-Qaida, what possible limiting principle can you cite as to why that shouldn’t apply to a low-level al-Qaida member, including ones found in places where capture may be feasible (including US soil)? The purported limitations on this power set forth in this memo, aside from being incredibly vague, can be easily discarded once the central theory of presidential power is embraced.
3. Relies on the core Bush/Cheney theory of a global battlefield
The primary theory embraced by the Bush administration to justify its War on Terror policies was that the “battlefield” is no longer confined to identifiable geographical areas, but instead, the entire globe is now one big, unlimited “battlefield”. That theory is both radical and dangerous because a president’s powers are basically omnipotent on a “battlefield”. There, state power is shielded from law, from courts, from constitutional guarantees, from all forms of accountability: anyone on a battlefield can be killed or imprisoned without charges. Thus, to posit the world as a battlefield is, by definition, to create an imperial, omnipotent presidency. That is the radical theory that unleashed all the rest of the controversial and lawless Bush/Cheney policies.
This “world-is-a-battlefield” theory was once highly controversial among Democrats. John Kerry famously denounced it when running for president, arguing instead that the effort against terrorism is “primarily an intelligence and law enforcement operation that requires cooperation around the world”.
But this global-war theory is exactly what lies at heart of the Obama approach to Terrorism generally and this memo specifically. It is impossible to defend Obama’s assassination powers without embracing it (which is why key Obama officials have consistently done so). That’s because these assassinations are taking place in countries far from any war zone, such as Yemen and Somalia. You can’t defend the application of “war powers” in these countries without embracing the once-very-controversial Bush/Cheney view that the whole is now a “battlefield” and the president’s war powers thus exist without geographic limits.
This new memo makes clear that this Bush/Cheney worldview is at the heart of the Obama presidency. The president, it claims, “retains authority to use force against al-Qaida and associated forces outside the area of active hostilities“. In other words: there are, subject to the entirely optional “feasibility of capture” element, no geographic limits to the president’s authority to kill anyone he wants. This power applies not only to war zones, but everywhere in the world that he claims a member of al-Qaida is found. This memo embraces and institutionalizes the core Bush/Cheney theory that justified the entire panoply of policies Democrats back then pretended to find so objectionable.
4. Expanding the concept of “imminence” beyond recognition
The memo claims that the president’s assassination power applies to a senior al-Qaida member who “poses an imminent threat of violent attack against the United States”. That is designed to convince citizens to accept this power by leading them to believe it’s similar to common and familiar domestic uses of lethal force on US soil: if, for instance, an armed criminal is in the process of robbing a bank or is about to shoot hostages, then the “imminence” of the threat he poses justifies the use of lethal force against him by the police.
But this rhetorical tactic is totally misleading. The memo is authorizing assassinations against citizens in circumstances far beyond this understanding of “imminence”. Indeed, the memo expressly states that it is inventing “a broader concept of imminence” than is typically used in domestic law. Specifically, the president’s assassination power “does not require that the US have clear evidence that a specific attack . . . will take place in the immediate future“. The US routinely assassinates its targets not when they are engaged in or plotting attacks but when they are at home, with family members, riding in a car, at work, at funerals, rescuing other drone victims, etc.
Many of the early objections to this new memo have focused on this warped and incredibly broad definition of “imminence”. The ACLU’s Jameel Jaffer told Isikoff that the memo “redefines the word imminence in a way that deprives the word of its ordinary meaning”. Law Professor Kevin Jon Heller called Jaffer’s objection “an understatement”, noting that the memo’s understanding of “imminence” is “wildly overbroad” under international law.
Crucially, Heller points out what I noted above: once you accept the memo’s reasoning – that the US is engaged in a global war, that the world is a battlefield, and the president has the power to assassinate any member of al-Qaida or associated forces – then there is no way coherent way to limit this power to places where capture is infeasible or to persons posing an “imminent” threat. The legal framework adopted by the memo means the president can kill anyone he claims is a member of al-Qaida regardless of where they are found or what they are doing.
The only reason to add these limitations of “imminence” and “feasibility of capture” is, as Heller said, purely political: to make the theories more politically palatable. But the definitions for these terms are so vague and broad that they provide no real limits on the president’s assassination power. As the ACLU’s Jaffer says: “This is a chilling document” because “it argues that the government has the right to carry out the extrajudicial killing of an American citizen” and the purported limits “are elastic and vaguely defined, and it’s easy to see how they could be manipulated.”
5. Converting Obama underlings into objective courts
This memo is not a judicial opinion. It was not written by anyone independent of the president. To the contrary, it was written by life-long partisan lackeys: lawyers whose careerist interests depend upon staying in the good graces of Obama and the Democrats, almost certainly Marty Lederman and David Barron. Treating this document as though it confers any authority on Obama is like treating the statements of one’s lawyer as a judicial finding or jury verdict.
Indeed, recall the primary excuse used to shield Bush officials from prosecution for their crimes of torture and illegal eavesdropping: namely, they got Bush-appointed lawyers in the DOJ to say that their conduct was legal, and therefore, it should be treated as such. This tactic – getting partisan lawyers and underlings of the president to say that the president’s conduct is legal – was appropriately treated with scorn when invoked by Bush officials to justify their radical programs. As Digby wrote about Bush officials who pointed to the OLC memos it got its lawyers to issue about torture and eavesdropping, such a practice amounts to:
“validating the idea that obscure Justice Department officials can be granted the authority to essentially immunize officials at all levels of the government, from the president down to the lowest field officer, by issuing a secret memo. This is a very important new development in western jurisprudence and one that surely requires more study and consideration. If Richard Nixon and Ronald Reagan had known about this, they could have saved themselves a lot of trouble.”
Life-long Democratic Party lawyers are not going to oppose the terrorism policies of the president who appointed them. A president can always find underlings and political appointees to endorse whatever he wants to do. That’s all this memo is: the by-product of obsequious lawyers telling their Party’s leader that he is (of course) free to do exactly that which he wants to do, in exactly the same way that Bush got John Yoo to tell him that torture was not torture, and that even it if were, it was legal.
That’s why courts, not the president’s partisan lawyers, should be making these determinations. But when the ACLU tried to obtain a judicial determination as to whether Obama is actually authorized to assassinate US citizens, the Obama DOJ went to extreme lengths to block the court from ruling on that question. They didn’t want independent judges to determine the law. They wanted their own lawyers to do so.
That’s all this memo is: Obama-loyal appointees telling their leader that he has the authority to do what he wants. But in the warped world of US politics, this – secret memos from partisan lackeys – has replaced judicial review as the means to determine the legality of the president’s conduct.
6. Making a mockery of “due process”
The core freedom most under attack by the War on Terror is the Fifth Amendment’s guarantee of due process. It provides that “no person shall be . . . deprived of life . . . without due process of law”. Like putting people in cages for life on island prisons with no trial, claiming that the president has the right to assassinate US citizens far from any battlefield without any charges or trial is the supreme evisceration of this right.
The memo pays lip service to the right it is destroying: “Under the traditional due process balancing analysis . . . . we recognize that there is no private interest more weighty than a person’s interest in his life.” But it nonetheless argues that a “balancing test” is necessary to determine the extent of the process that is due before the president can deprive someone of their life, and further argues that, as the New York Times put it when this theory was first unveiled: “while the Fifth Amendment’s guarantee of due process applied, it could be satisfied by internal deliberations in the executive branch.”
Stephen Colbert perfectly mocked this theory when Eric Holder first unveiled it to defend the president’s assassination program. At the time, Holder actually said: “due process and judicial process are not one and the same.” Colbert interpreted that claim as follows:
“Trial by jury, trial by fire, rock, paper scissors, who cares? Due process just means that there is a process that you do. The current process is apparently, first the president meets with his advisers and decides who he can kill. Then he kills them.”
It is fitting indeed that the memo expressly embraces two core Bush/Cheney theories to justify this view of what “due process” requires. First, it cites the Bush DOJ’s core view, as enunciated by John Yoo, that courts have no role to play in what the president does in the War on Terror because judicial review constitutes “judicial encroachment” on the “judgments by the President and his national security advisers as to when and how to use force”. And then it cites the Bush DOJ’s mostly successful arguments in the 2004 Hamdi case that the president has the authority even to imprison US citizens without trial provided that he accuses them of being a terrorist.
The reason this is so fitting is because, as I’ve detailed many times, it was these same early Bush/Cheney theories that made me want to begin writing about politics, all driven by my perception that the US government was becoming extremist and dangerous. During the early Bush years, the very idea that the US government asserted the power to imprison US citizens without charges and due process (or to eavesdrop on them) was so radical that, at the time, I could hardly believe they were being asserted out in the open.
Yet here we are almost a full decade later. And we have the current president asserting the power not merely to imprison or eavesdrop on US citizens without charges or trial, but to order them executed – and to do so in total secrecy, with no checks or oversight. If you believe the president has the power to order US citizens executed far from any battlefield with no charges or trial, then it’s truly hard to conceive of any asserted power you would find objectionable.
DOJ White Paper
Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Q… by
© 2013 Guardian News and Media Limited
Posted by rogerhollander in Barack Obama, Civil Liberties, Constitution, Criminal Justice, Democracy.
Tags: civil liberties, dianne feinstein, glenn greenwald, nsa, Obama, roger hollander, warantless eavesdropping, warrantless wiretapping
Roger’s note: More Obama hypocrisy and lies.
Published on Friday, December 28, 2012 by The Guardian/UK
The California Democrat’s disgusting rhetoric recalls the worst of Dick Cheney while advancing Obama’s agenda
Democratic Senate Intelligence Committee chair Dianne Feinstein joined with GOP Senator Saxby Chambliss (right) to extend Obama’s warrantless eavesdropping powers. (Photograph: J Scott Applewhite/AP)
by Glenn Greenwald
To this day, many people identify mid-2008 as the time they realized what type of politician Barack Obama actually is. Six months before, when seeking the Democratic nomination, then-Sen. Obama unambiguously vowed that he would filibuster “any bill” that retroactively immunized the telecom industry for having participated in the illegal Bush NSA warrantless eavesdropping program.
But in July 2008, once he had secured the nomination, a bill came before the Senate that did exactly that – the FISA Amendments Act of 2008 – and Obama not only failed to filibuster as promised, but far worse, he voted against the filibuster brought by other Senators, and then voted in favor of enacting the bill itself. That blatant, unblinking violation of his own clear promise – actively supporting a bill he had sworn months earlier he would block from a vote – caused a serious rift even in the middle of an election year between Obama and his own supporters.
Critically, the FISA Amendments Act of 2008 did much more than shield lawbreaking telecoms from all forms of legal accountability. Jointly written by Dick Cheney and then-Senate Intelligence Committee Chair Jay Rockefeller, it also legalized vast new, sweeping and almost certainly unconstitutional forms of warrantless government eavesdropping.
In doing so, the new 2008 law gutted the 30-year-old FISA statute that had been enacted to prevent the decades of severe spying abuses discovered by the mid-1970s Church Committee: by simply barring the government from eavesdropping on the communications of Americans without first obtaining a warrant from a court. Worst of all, the 2008 law legalized most of what Democrats had spent years pretending was such a scandal: the NSA warrantless eavesdropping program secretly implemented by George Bush after the 9/11 attack. In other words, the warrantless eavesdropping “scandal” that led to a Pulitzer Prize for the New York Times reporters who revealed it ended not with investigations or prosecutions for those who illegally spied on Americans, but with the Congressional GOP joining with key Democrats (including Obama) to legalize most of what Bush and Cheney had done. Ever since, the Obama DOJ has invoked secrecy and standing doctrines to prevent any courts from ruling on whether the warrantless eavesdropping powers granted by the 2008 law violate the Constitution.
The 2008 FISA law provided that it would expire in four years unless renewed. Yesterday, the Senate debated its renewal. Several Senators – Democrats Jeff Merkley and Ron Wyden of Oregon along with Kentucky GOP Senator Rand Paul – each attempted to attach amendments to the law simply to provide some modest amounts of transparency and oversight to ensure that the government’s warrantless eavesdropping powers were constrained and checked from abuse.
Just consider how modest these amendments were. Along with Democratic Sen. Mark Udall of Colorado, Sen. Wyden has spent two years warning Americans that the government’s eavesdropping powers are being interpreted (by secret court decisions and the Executive Branch) far more broadly than they would ever suspect, and that, as a result, these eavesdropping powers are being applied far more invasively and extensively than is commonly understood.
As a result, Wyden yesterday had two amendments: one that would simply require the NSA to give a general estimate of how many Americans are having their communications intercepted under this law (information the NSA has steadfastly refused to provide), and another which would state that the NSA is barred from eavesdropping on Americans on US soil without a warrant. Merkley’s amendment would compel the public release of secret judicial rulings from the FISA court which purport to interpret the scope of the eavesdropping law on the ground that “secret law is inconsistent with democratic governance”; the Obama administration has refused to release a single such opinion even though the court, “on at least one occasion”, found that the government was violating the Fourth Amendment in how it was using the law to eavesdrop on Americans.
But the Obama White House opposed all amendments, demanding a “clean” renewal of the law without any oversight or transparency reforms. Earlier this month, the GOP-led House complied by passing a reform-free version of the law’s renewal, and sent the bill Obama wanted to the Senate, where it was debated yesterday afternoon.
The Democratic Chair of the Senate Intelligence Committee, Dianne Feinstein, took the lead in attacking Wyden, Merkley, Udall and Paul with the most foul Cheneyite accusations, and demanded renewal of the FISA law without any reforms. And then predictably, in virtually identical 37-54 votes, Feinstein and her conservative-Democratic comrades joined with virtually the entire GOP caucus (except for three Senators: Paul, Mike Lee and Dean Heller) to reject each one of the proposed amendments and thus give Obama exactly what he demanded: reform-free renewal of the law (while a few Democratic Senators have displayed genuine, sustained commitment to these issues, most Democrats who voted against FISA renewal yesterday did so symbolically and half-heartedly, knowing and not caring that they would lose as evidenced by the lack of an attempted filibuster).
In other words, Obama successfully relied on Senate Republicans (the ones his supporters depict as the Root of All Evil) along with a dozen of the most militaristic Democrats to ensure that he can continue to eavesdrop on Americans without any warrants, transparency or real oversight. That’s the standard coalition that has spent the last four years extending Bush/Cheney theories, eroding core liberties and entrenching endless militarism: Obama + the GOP caucus + Feinstein-type Democrats. As Michelle Richardson, the ACLU’s legislative counsel, put it to the Huffington Post: “I bet [Bush] is laughing his ass off.”
But what’s most remarkable here is not so much what happened but how it happened. When Obama voted in 2008 to massively increase the government’s warrantless eavesdropping powers, I so vividly recall his supporters insisting that he was only doing this because he wanted to win the election, and then would get into power and fix these abuses by reversing them. Yes, there were actually large numbers of people who believed this. And they were encouraged to believe this by Obama himself, who, in explaining his 2008 vote, said things like this:
“I know that the FISA bill that passed the House is far from perfect. I wouldn’t have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush’s abuse of executive power. . . .
I do so [vote for the FISA bill] with the firm intention – once I’m sworn in as president – to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.”
Needless to say, none of that ever happened. Now, the warrantless eavesdropping bill that Obama insisted was plagued by numerous imperfections is one that he is demanding be renewed without a single change. Last week, Marcy Wheeler documented the huge gap between (a) what Obama vowed he would do when he voted for this law in 2008 versus (b) what he has actually done in power (they’re opposites).
Indeed, when it came time last year to vote on renewal of the Patriot Act – remember how Democrats used to pretend during the Bush years to find the Patriot Act so alarming? – the Obama administration also demanded its renewal without a single reform. When a handful of Senators led by Rand Paul nonetheless proposed modest amendments to eliminate some of the documented abuses of the Patriot Act, Democratic majority leader Harry Reid did his best Dick Cheney impression by accusing these disobedient lawmakers of risking a Terrorist attack by delaying renewal:
“When the clock strikes midnight tomorrow, we will be giving terrorists the opportunity to plot against our country undetected. The senator from Kentucky is threatening to take away the best tools we have for stopping them.
“We all remember the tragic Fort Hood shootings less than two years ago. Radicalized American terrorists bought guns and used them to kill 13 civilians [by "civilians", Reid means: members of the US military]. It is hard to imagine why the senator would want to hold up the Patriot Act for a misguided amendment that would make American less safe.”
In other words: if you even try to debate the Patriot Act or add any amendments to it, then you are helping the Terrorists: classic Dick Cheney. (Democratic Sen. Udall defended Paul from Reid’s disgusting attack: “This is not a Patriot Act. Patriots stand up for the Constitution. Patriots stand up for freedom and liberty that’s embodied in the Constitution. And I think true patriots, when they’re public servants, public servants stand up and do what’s right, even if it’s unpopular”).
Yesterday, I watched as Dianne Feinstein went well beyond Harry Reid’s disgusting Cheneyite display. Feinstein is one of the Senate’s richest plutocrats, whose husband, Richard Blum, has coincidentally been quite enriched by military and other government contracts during her Senate career. During this time, Feinstein has acted as the most faithful servant in the Senate of the National Security State’s unchecked, authoritarian power.
Yesterday, Feinstein stood up on the Senate floor and began by heaping praise on her GOP comrade, Sen. Saxby Chambliss of Georgia, for leading his caucus to join her in renewing the FISA act without any reforms. She then unleashed a vile attack on her Democratic colleagues – Wyden, Merkley, and Udall, along with Paul – in which she repeatedly accused them of trying to make the nation vulnerable to a Terrorist attack.
Feinstein insisted that one could support their amendments only if “you believe that no one is going to attack us”. She warned that their amendments would cause “another 9/11″. She rambled about Najibullah Zazi and his attempt to detonate a bomb on the New York City subway: as though a warrant requirement, let alone disclosure requirements for the eavesdropping program, would have prevented his detection. Having learned so well from Rudy Giuliani (and Harry Reid), she basically just screamed “Terrorist!” and “9/11″ over and over until her time ran out, and then proudly sat down as though she had mounted rational arguments against the transparency and oversight amendments advocated by Wyden, Merkley, Udall and Paul.
Even more notably, Feinstein repeatedly argued that requiring even basic disclosure about the eavesdropping program – such as telling Americans how many of them are targeted by it – would, as she put it, “destroy the program”. But if “the program” is being conducted properly and lawfully, why would that kind of transparency kill the program? As the ACLU’s Richardson noted: “That Sen. Feinstein says public oversight will lead to the end of the program says a lot about the info that’s being hidden.” In response to her warnings that basic oversight and transparency would destroy the program, Mother Jones’ Adam Serwer similarly asked: “Why, if it’s all on the up and up?”
All of this was accomplished with the core Bush/Cheney tactic used over and over: they purposely waited until days before the law is set to expire to vote on its renewal, then told anyone who wants reforms that there is no time to consider them, and that anyone who attempted debate would cause the law to expire and risk a Terrorist attack. Over and over yesterday, Feinstein stressed that only “four days remained” before the law expires and that any attempts even to debate the law, let alone amend it, would leave the nation vulnerable.
It’s hard to put into words just how extreme was Feinstein’s day-long fear-mongering tirade. “I’ve never seen a Congressional member argue so strongly against Executive Branch oversight as Sen. Feinstein did today re the FISA law,” said Micah Zenko of the Council on Foreign Relations. Referring to Feinstein’s alternating denials and justifications for warrantless eavesdropping on Americans, the ACLU’s Jameel Jaffer observed: “This FISA debate reminds of the torture debate circa 2004: We don’t torture! And anyway, we have to torture, we don’t have any choice.”
Jaffer added that Feinstein’s strident denials that secret warrantless eavesdropping poses any dangers “almost makes you nostalgic for Ashcroft’s ‘phantoms of lost liberty’ speech” – referring to the infamous 2001 decree from Bush’s Attorney General:
“To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our unity and diminish our resolve. They give ammunition to America’s enemies and pause to America’s friends.”
That is exactly the foul message which Dianne Feinstein, doing the bidding of the Obama White House, spewed at her liberal Senate colleagues (and a tiny handful of Republicans) for the crime of wanting to bring some marginal transparency and oversight to the warrantless eavesdropping powers with which Obama vested himself when voting in 2008 for that FISA law. As it turns out, Yale Law Professor Jack Balkin had it exactly right in mid-2008 when explaining – in the face of lots of progressive confusion and even anger – why Obama decided to support a FISA bill that vested the executive with massive unchecked eavesdroppoing power: namely, Obama “plans to be the executive”, so “from Obama’s perspective, what’s not to like?”
Just four or five years ago, objections to warrantless eavesdropping were a prime grievance of Democrats against Bush. The controversies that arose from it were protracted, intense, and often ugly. Progressives loved to depict themselves as stalwartly opposing right-wing radicalism in defense of Our Values and the Constitution.
Fast forward to 2012 and all of that, literally, has changed. Now it’s a Democratic President demanding reform-free renewal of his warrantless eavesdropping powers. He joins with the Republican Party to codify them. A beloved Democratic Senator from a solidly blue state leads the fear-mongering campaign and Terrorist-enabling slurs against anyone who opposes it. And it now all happens with virtually no media attention or controversy because the two parties collaborate so harmoniously to make it happen. And thus does a core guarantee of the founding – the search warrant requirement of the Fourth Amendment – blissfully disappear into nothingness.
Here we find yet again a defining attribute of the Obama legacy: the transformation of what was until recently a symbol of right-wing radicalism – warrantless eavesdropping – into meekly accepted bipartisan consensus. But it’s not just the policies that are so transformed but the mentality and rhetoric that accompanies them: anyone who stands in the way of the US Government’s demands for unaccountable, secret power is helping the Terrorists. “The administration has decided the program should be classified”, decreed Feinstein, and that is that.
In 2005, the Bush White House invoked the “very bad guy” defense to assure us that we need not worry about the administration’s secret warrantless eavesdropping program; as a Bush White House spokesman put it:
“This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches.”
In 1968, Nixon Attorney General John Mitchell similarly told the public in the face of rising concerns over government eavesdropping powers that “any citizen of this United States who is not involved in some illegal activity has nothing to fear whatsoever.” That is the noble tradition which the Obama White House, Dianne Feinstein and their GOP partners are continuing now.
© 2012 Guardian News and Media Limited
Glenn Greenwald is a columnist on civil liberties and US national security issues for the Guardian. A former constitutional lawyer, he was until 2012 a contributing writer at Salon. His most recent book is, With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful. His other books include: Great American Hypocrites: Toppling the Big Myths of Republican Politics, A Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism.
Posted by rogerhollander in Barack Obama, Civil Liberties, Constitution, Criminal Justice, Dick Cheney, George W. Bush, Human Rights, Torture.
Tags: Alberto Gonzales, andy worthington, Bush, cheney, CIA torture, david addington, Guantanamo, human rights, jay bybee, john yoo, rendition, roger hollander, rumsfeld, state secrets, torture, torture memos
Roger’s note: the United States government has a long history of disgraceful behavior, and the Bush/Cheney torture regime is one of the most heinous. We need to be constantly reminded, and we need to acknowledge that the Obama government’s disregard of its constitutional obligation to prosecute constitutes legal and moral complicity.
By Andy Worthington (about the author)
OpEdNews Op Eds 11/29/2012 at 20:45:34
In June 2004, in the wake of the Abu Ghraib scandal, a notorious memo from August 2002 was leaked . It was written by John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel and it claimed to redefine torture and to authorize its use on prisoners seized in the “war on terror.” I had no idea at the time that its influence would prove to be so long-lasting.
Ten years and four months since it was first issued, that memo — one of two issued on the same day that will forever be known as the “torture memos” — is still protecting the senior Bush administration officials who commissioned it (as well as Yoo and his boss, Jay S. Bybee, who signed it).
Those officials include George W. Bush, former Vice President Dick Cheney, and their senior lawyers, Alberto Gonzales and David Addington. None of them should be immune from prosecution, because torture is illegal under U.S. domestic law and is prohibited under the terms of the UN Convention Against Torture, which the United States, under Ronald Reagan, signed in 1988 and ratified in 1994. As Article 2.2 states, unequivocally, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
However, the architects of the torture program didn’t care, and still don’t care, because for them the disgraceful memos written by Yoo were designed to be a “golden shield,” a guarantee that, whatever they did, they were covered, because they had legal advice telling them that torture was not torture.
Barack Obama came into office promising to ban the use of torture. His administration released the second Yoo and Bybee “torture memo” and three later “torture memos” from 2005 as part of a court case in April 2009. That, however, was the end of the Obama administration’s flirtation with accountability. In court, every avenue that lawyers have tried to open up has been aggressively shut down by the government, citing the “state secrets doctrine,” another “golden shield” for torturers, which prohibits the discussion of anything the government doesn’t want discussed, for spurious reasons of national security.
The only other opportunity to stop the rot came three years ago, when an internal DoJ ethics investigation concluded, after several years of diligent work, that Yoo and Bybee were guilty of “professional misconduct” when they wrote and signed the memos. That could have led to their being disbarred, which would have been inconvenient for a law professor at UC Berkeley (Yoo) and a judge in the Ninth Circuit Court of Appeals (Bybee). It also might well have set off ripples that would have led to Bush and Cheney and their lawyers.
However, at the last minute a long-time DoJ fixer, David Margolis, was allowed to override the report’s conclusions, claiming that both men were guilty only of “poor judgment,” which, he alleged, was understandable in the aftermath of the 9/11 attacks, and which carried no sanctions whatsoever.
Thwarted in the United States, those seeking accountability have had to seek it elsewhere: in Spain; in Poland, where one of the CIA’s “black sites” was located; and in Italy, where 23 Americans — 22 CIA agents and an Air Force colonel — were convicted in November 2009,
in a ruling that was upheld on appeal
in September this year, of kidnapping an Egyptian cleric, Abu Omar, and rendering him to Egypt, where he was tortured.
The United States has refused to extradite any of the men and women convicted in Italy, but the ruling is a reminder that not everyone around the world believes in Yoo’s and Bybee’s “golden shield.”
Moreover, although senior Bush administration officials — Bush and Cheney themselves and Donald Rumsfeld — have so far evaded accountability, their ability to travel the world freely has been hampered by their actions. In February 2011, for example, Bush called off a visit to Switzerland when he was notified that lawyers — at the New York-based Center for Constitutional Rights (CCR) and the Berlin-based European Center for Constitutional and Human Rights — had prepared a massive torture indictment that was to be presented to the Swiss government the moment he landed in the country.
The former president was told that foreign countries might take their responsibilities under the UN Convention Against Torture more seriously than America has and arrest him on the basis that his home country had failed to act on the clear evidence that he had authorized torture, which he had actually boasted about in his memoir, Decision Points, published in November 2010.
Most recently, lawyers seeking accountability have tried pursuing Bush in Canada. Last September, prior to a visit by the former president, CCR and the Canadian Centre for International Justice (CCIJ) submitted a 69-page draft indictment to Attorney General Robert Nicholson, along with more than 4,000 pages of supporting material setting forth the case against Bush for torture.
When that was turned down, the lawyers launched a private prosecution in Provincial Court in Surrey, British Columbia, on behalf of four Guantanamo prisoners — Hassan bin Attash, Sami el-Hajj, Muhammed Khan Tumani, and Murat Kurnaz (all released, with the exception of bin Attash) — on the day of Bush’s arrival in Canada.
That avenue also led nowhere because the attorney general of British Columbia swiftly intervened to shut down the prosecution. Undeterred, however, CCR and CCIJ last week tried a new approach on behalf of those four men who, as Katherine Gallagher of CCR explained in the Guardian, “are all survivors of the systematic torture program the Bush administration authorized and carried out in locations including Afghanistan, Iraq, GuantÃ¡namo, and numerous prisons and CIA “black sites’ around the world.”
“Between them,” she added, “they have been beaten; hung from walls or ceilings; deprived of sleep, food, and water; and subjected to freezing temperatures and other forms of torture and abuse while held in U.S. custody.”
The new approach taken by the lawyers was to file a complaint with the UN Committee Against Torture, in which the four men “are asking one question: how can the man responsible for ordering these heinous crimes openly enter a country that has pledged to prosecute all torturers regardless of their position and not face legal action?”
As Gallagher explained, “Canada should have investigated these crimes. The responsibility to do so is embedded in its domestic criminal code that explicitly authorizes the government to prosecute torture occurring outside Canadian borders. There is no reason it cannot apply to former heads of state, and indeed, the convention has been found to apply to such figures including HissÃ¨ne HabrÃ© [the former president of Chad] and Augusto Pinochet.”
That is true, and it will be interesting to see how the UN Committee Against Torture responds. Probably the “golden shield” will not need to be invoked once more by the United States, as the Canadian government evidently has no wish to annoy its neighbor. Moreover, it has its own appalling track record when it comes to preserving human rights in the “war on terror,” as the cases of Omar Khadr in Guantanamo, and Mahar Arar and others who were tortured in Syria demonstrate. However, the submission is to be commended for reminding people that great crimes — committed by the most senior U.S. officials and their lawyers — still remain unpunished, and that that is a situation that ought to be considered a major disgrace rather than something to be brushed aside.
Posted by rogerhollander in Barack Obama, Civil Liberties, Constitution, Criminal Justice, Democracy, Pakistan, War, War on Terror.
Tags: al-Qaeda, civilian casualties, cluster bombs, constitution, cruise missiles, democratic party, drone missile, due process, fifth amendment, George Bush, glenn greenwald, kill list, Muslims, Obama, presidential assassination, roger hollander, targetede killing, terrorists, War Crimes, war on terror
Roger’s note: No one says it better than Glenn Greenwald.
Published on Tuesday, November 27, 2012 by The Guardian/UK
The president’s flattering view of himself reflects the political sentiments in his party and the citizenry generally
For the last four years, Barack Obama has not only asserted, but aggressively exercised, the power to target for execution anyone he wants, including US citizens, anywhere in the world. He has vigorously resisted not only legal limits on this assassination power, but even efforts to bring some minimal transparency to the execution orders he issues.
Mitt Romney and Barack Obama during the second US presidential debate. (Photograph: Mike Segar/Reuters)
This claimed power has resulted in four straight years of air bombings in multiple Muslim countries in which no war has been declared – using drones, cruise missiles and cluster bombs – ending the lives of more than 2,500 people, almost always far away from any actual battlefield. They are typically targeted while riding in cars, at work, at home, and while even rescuing or attending funerals for others whom Obama has targeted. A substantial portion of those whom he has killed – at the very least – have been civilians, including dozens of children.
Worse still, his administration has worked to ensure that this power is subject to the fewest constraints possible. This was accomplished first by advocating the vague, sweeping Bush/Cheney interpretation of the 2001 Authorization to Use Military Force (AUMF) – whereby the President can target not only the groups which perpetrated the 9/11 attack (as the AUMF provides) but also those he claims are “associated” which such groups, and can target not only members of such groups (as the AUMF states) but also individuals he claims provide “substantial support” to those groups. Obama then entrenched these broad theories by signing into law the 2011 National Defense Authorization Act, which permanently codified those Bush/Cheney interpretation of these war powers.
From the start, Obama officials have also ensured that these powers have no physical limits, as they unequivocally embraced what was once the core and highly controversial precept of Bush/Cheney radicalism: that the US is fighting a “global war” in which the “whole world is a battlefield”, which means there are no geographical constraints to the president’s war powers. In sum, we have had four straight years of a president who has wielded what is literally the most extreme and tyrannical power a government can claim – to execute anyone the leader wants, even his own citizens, in total secrecy and without a whiff of due process – and who has resisted all efforts to impose a framework of limits or even transparency.
But finally, according to a new article on Sunday by The New York Times’ Scott Shane, President Obama was recently convinced that some limits and a real legal framework might be needed to govern the exercise of this assassination power. What was it that prompted Obama finally to reach this conclusion? It was the fear that he might lose the election, which meant that a Big, Bad Republican would wield these powers, rather than a benevolent, trustworthy, noble Democrat – i.e., himself [emphasis added]:
“Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials. . . .
“The matter may have lost some urgency after Nov. 6. But . . . Mr. Obama and his advisers are still debating whether remote-control killing should be a measure of last resort against imminent threats to the United States, or a more flexible tool, available to help allied governments attack their enemies or to prevent militants from controlling territory. . . .
“For years before the Sept. 11, 2001, attacks, the United States routinely condemned targeted killings of suspected terrorists by Israel, and most countries still object to such measures.
“But since the first targeted killing by the United States in 2002, two administrations have taken the position that the United States is at war with Al Qaeda and its allies and can legally defend itself by striking its enemies wherever they are found.
“Partly because United Nations officials know that the United States is setting a legal and ethical precedent for other countries developing armed drones, the U.N. plans to open a unit in Geneva early next year to investigate American drone strikes. . . .
“The attempt to write a formal rule book for targeted killing began last summer after news reports on the drone program, started under President George W. Bush and expanded by Mr. Obama, revealed some details of the president’s role in the shifting procedures for compiling ‘kill lists’ and approving strikes. Though national security officials insist that the process is meticulous and lawful, the president and top aides believe it should be institutionalized, a course of action that seemed particularly urgent when it appeared that Mitt Romney might win the presidency.
“‘There was concern that the levers might no longer be in our hands,’ said one official, speaking on condition of anonymity. With a continuing debate about the proper limits of drone strikes, Mr. Obama did not want to leave an ‘amorphous’ program to his successor, the official said. The effort, which would have been rushed to completion by January had Mr. Romney won, will now be finished at a more leisurely pace, the official said.”
Now that Obama rather than Romney won, such rules will be developed “at a more leisurely pace”. Despite Obama’s suggestion that it might be good if even he had some legal framework in which to operate, he’s been in no rush to subject himself to any such rules in four full years of killing thousands of people. This makes it safe to assume that by “a more leisurely pace”, this anonymous Obama official means: “never”.
There are many important points raised by this report: Kevin Gosztola and Marcy Wheeler, among others, have done their typically excellent job of discussing some of them, while this Guardian article from Sunday reports on the reaction of the ACLU and others to the typical Obama manipulation of secrecy powers on display here (as usual, these matters are too secret to permit any FOIA disclosure or judicial scrutiny, but Obama officials are free to selectively leak what they want us to know to the front page of the New York Times). I want to focus on one key point highlighted by all of this:
Democratic Party benevolence
The hubris and self-regard driving this is stunning – but also quite typical of Democratic thinking generally in the Obama era. The premise here is as self-evident as it is repellent:
I’m a Good Democrat and a benevolent leader; therefore, no limits, oversight, checks and balances, legal or Constitutional constraints, transparency or due process are necessary for me to exercise even the most awesome powers, such as ordering people executed. Because of my inherent Goodness and proven progressive wisdom, I can be trusted to wield these unlimited powers unilaterally and in the dark.
Things like checks, oversight and due process are desperately needed only for Republicans, because – unlike me – those people are malevolent and therefore might abuse these powers and thus shouldn’t be trusted with absolute, unchecked authority. They – but not I – urgently need restrictions on their powers.
This mentality is not only the animating belief of President Obama, but also the sizable portion of American Democrats which adores him.
There are many reasons why so many self-identified progressives in the US have so radically changed their posture on these issues when Barack Obama replaced George W. Bush. Those include (a) the subordination of all ostensible beliefs to their hunger for partisan power; (b) they never actually believed these claimed principles in the first place but only advocated them for partisan opportunism, i.e., as a way to discredit the GOP President; and (c) they are now convinced that these abuses will only be used against Muslims and, consumed by self-interest, they concluded that these abuses are not worth caring about because it only affects Others (this is the non-Muslim privilege enjoyed by most US progressives, which shields them from ever being targeted, so they simply do not care; the more honest ones of this type even admit this motivation).
But the primary reason for this fundamental change in posture is that they genuinely share the self-glorifying worldview driving Obama here. The core premise is that the political world is shaped by a clean battle of Good v. Evil. The side of Good is the Democratic Party; the side of Evil is the GOP. All political truths are ascertainable through this Manichean prism.
This is the simplistic, self-flattering morality narrative that gets reinforced for them over and over as they sit for hours every day having their assumptions flattered and validated (and never questioned or challenged) by watching MSNBC, reading pro-Obama blogs that regularly churn out paeans to his greatness, and drinking up the hundreds of millions of dollars of expertly crafted election-year propaganda from the Party that peddles this Justice League cartoon.
The result is that, for so many, it is genuinely inconceivable that a leader as noble, kind and wise as Barack Obama would abuse his assassination and detention powers. It isn’t just rank partisan opportunism or privilege that leads them not to object to Obama’s embrace of these radical powers and the dangerous theories that shield those powers from checks or scrutiny. It’s that they sincerely admire him as a leader and a man so much that they believe in their heart (like Obama himself obviously believes) that due process, checks and transparency are not necessary when he wields these powers. Unlike when a GOP villain is empowered, Obama’s Goodness and his wisdom are the only safeguards we need.
Thus, when Obama orders someone killed, no due process is necessary and we don’t need to see any evidence of their guilt; we can (and do) just assume that the targeted person is a Terrorist and deserves death because Obama has decreed this to be so. When Obama orders a person to remain indefinitely in a cage without any charges or any opportunity to contest the validity of the imprisonment, that’s unobjectionable because the person must be a Terrorist or otherwise dangerous – or else Obama wouldn’t order him imprisoned. We don’t need proof, or disclosed evidence, or due process to determine the validity of these accusations; that it is Obama making these decisions is all the assurance we need because we trust him.
Similar sentiments shaping the Bush era
This mindset is so recognizable because it is also what drove Bush followers for years as they defended his seizures of unchecked authority and secrecy powers. Those who spent years arguing against the Bush/Cheney seizure of extremist powers always confronted this mentality at bottom, once the pseudo-intellectual justifications were debunked: George Bush is a Good man and a noble leader who can be trusted to exercise these powers in secret and with no checks, because he only wants to keep us safe and will only target the Terrorists.
Molded by exactly the same species of drooling presidential hagiography now so prevalent in progressive circles – compare this from the Bush era to things like this and this – conservatives believed that Bush was a good man and a great leader and thus needed no safeguards or transparency. If Bush wanted to eavesdrop on someone, or wanted to imprison someone, then – solely by virtue of his decree – we could and should assume the person was a Terrorist, or at least there was ample evidence to believe he was.
We were graced with a leader we could trust to exercise unlimited war powers in the dark. This is precisely the same mentality applied by Democrats (and by Obama himself) to the current President, except it not only justifies due-process-free eavesdropping and detention but also execution.
Faith v. reason and evidence
It is, for several reasons, extraordinary that so many citizens have been successfully trained to so venerate their Party’s leaders that they literally believe no checks or transparency are necessary, even as those leaders wield the most extremist powers: executing people, bombing multiple countries, imprisoning people with no charges, mass monitoring and surveilling of entire communities.
For one, there is ample evidence that virtually every leader of both major parties over the last century systematically abused these powers because they were able to exercise them in the dark. It was this discovery by the Church Committee that led to the reforms of the mid-1970s – reforms grounded in the premise that virtually all leaders, by virtue of human nature, will inevitably abuse these powers, exercise them for ignoble ends, if they operate without serious restraints and oversight. One has to ignore all of this historic evidence in order to place trust in any particular leader to exercise these powers without checks.
Then there is all the specific evidence of all the post-9/11 abuses. Over the last decade, the US government – under both parties – has repeatedly accused people of being Terrorists and punished them as Terrorists who were nothing of the sort. Whether due to gross error or more corrupt motives, the Executive Branch and its various intelligence and military agencies have proven beyond any reasonable doubt that their mere accusation that someone is a Terrorist – unproven with evidence and untested by any independent tribunal – is definitively unreliable.
Even beyond that, it is well-documented that the US government, under Obama, often targets people for death when they don’t even know the identity of the person they’re trying to kill. From the Sunday New York Times article:
“Then there is the matter of strikes against people whose identities are unknown. In an online video chat in January, Mr. Obama spoke of the strikes in Pakistan as ‘a targeted, focused effort at people who are on a list of active terrorists.’ But for several years, first in Pakistan and later in Yemen, in addition to ‘personality strikes’ against named terrorists, the CIA and the military have carried out ‘signature strikes’ against groups of suspected, unknown militants.
“Originally that term was used to suggest the specific ‘signature’ of a known high-level terrorist, such as his vehicle parked at a meeting place. But the word evolved to mean the ‘signature’ of militants in general – for instance, young men toting arms in an area controlled by extremist groups. Such strikes have prompted the greatest conflict inside the Obama administration, with some officials questioning whether killing unidentified fighters is legally justified or worth the local backlash.”
It is truly staggering to watch citizens assert that their government is killing “Terrorists” when those citizens have no clue who is being killed. But that becomes even more astounding when one realizes that not even the US government knows who they’re killing: they’re just killing anyone whose behavior they think generally tracks the profile of a Terrorist (“young men toting arms in an area controlled by extremist groups”). And, of course, the Obama administration has re-defined “militant” to mean “all military-age males in a strike zone” – reflecting their propagandistic sloganeering that they are killing Terrorists even when they, in fact, have no idea who they are killing.
In light of all this evidence, to continue to blindly assume that unproven government accusations of “Terrorist” are tantamount to proof of those accusations is to embrace the type of faith-based trust that lies at the core of religious allegiance and faith in a god, not rational citizenship. Yet over and over, one encounters some form of this dialogue whenever this issue arises:
ARGUMENT: The US government shouldn’t imprison/kill/surveil people without providing evidence of their guilt.
GOVERNMENT-DEFENDING RESPONSE: But these are Terrorists, and they have to be stopped.
OBVIOUS QUESTION: How do you know they’re Terrorists if no evidence of their guilt has been presented and no due process accorded?
Ultimately, the only possible answer to that question – the only explanation for why this definitively authoritarian mentality persists – is because people have been so indoctrinated with the core Goodness of their particular party leader that they disregard all empirical evidence, and their own rational faculties, in order to place their blind faith in the leader they have grown to love and admire (if my leader says someone is a Terrorist, then I believe they are, and I don’t need to see evidence of that).
One can reasonably debate the extent to which democracy requires that some degree of trust be vested in the capabilities and judgment of whichever political leaders one supports. But however far that trust should extend, surely it must stop well before the vesting of the power to imprison and kill in total secrecy, far from any battlefield and without any checks or due process.
Core principles disregarded in lieu of leader-love
The Times article describes the view of Obama that some “drone rules” would be needed to be developed in light of the possibility of Romney’s victory. But at least some such rules already exist: they’re found in these things called “the Constitution” and “the Bill of Rights”, the Fifth Amendment to which provides:
“No person shall be . . . deprived of life, liberty, or property, without due process of law;”
Yet all of that has been tossed aside in lieu of a deeply disturbing and unhealthy faith-based belief that our leader can make these determinations without the need for any such bothersome impediments.
To me, this comment, left in response to a Gawker post from Sunday on the new NYT article, perfectly conveys the sentiment I heard for years in right-wing circles to justify everything Bush did in secret, and is now just as miserably common in progressive circles to justify Obama’s wielding of the same and even greater powers:
“The fact of the matter is that the complexities of security and war go far beyond what those interested in appearing morally superior are willing to concede. It just so happens that a lot of liberals are most interested in the appearance of moral superiority. . . .
“I used to be the exact same way, but then I actually genuinely considered how I would feel if I held the weight of the presidency and these decisions. I have no doubt that most liberals, when presented with that, would act just as Obama has. . . .
“I’m liberal, I’m no fan of war, I’m no fan of Republican fanaticism and thumping America-is-the-best nonsense across the globe. But I can understand why drone strikes might be the most expedient option in a war. Or, perhaps more precisely, can understand just how incapable I am of understanding. And instead of supposing myself worthy of understanding the complexity and therefore offering criticism, I trust those more intelligent than myself. But a lot of my fellow liberals don’t believe there are people more intelligent than themselves. I have no self-loathing of liberals. Its just like a moderate Republican finding the right wing of their party crazy even if they believe in most of the same stuff.”
That’s the Platonic form of authoritarian leader-faith:
I don’t need to know anything; my leader doesn’t need to prove the truth of his accusations; he should punish whomever he wants in total secrecy and without safeguards, and I will assume that he is right to do so (as long as I and others like me are not the ones targeted) because he is superior to me and I place my faith in Him.
Anyone who thinks the leader (when he’s of my party) should have to show proof before killing someone, or allow them due process, is being a childish purist. I used to be like that – until Obama got in office, and now I see how vital it is to trust him and not bother him with all this “due process” fanaticism. That’s what being an adult citizen means: trusting one’s leader the way children trust their parent.
This is the only sentiment that can explain the comfort with allowing Obama (and, before him, Bush) to exercise these extreme powers without checks or transparency. This is exactly the sentiment any Obama critic confronts constantly, even if expressed a bit more subtly and with a bit more dignity.
Ultimately, what is most extraordinary about all of this – most confounding to me – is how violently contrary this mentality is to the ethos with which all Americans are instilled: namely, that the first and most inviolable rule of government is that leaders must not be trusted to exercise powers without constant restraints – without what we’re all taught in elementary school are called “checks and balances”. Here is how Thomas Jefferson expressed this warning in the Kentucky Resolutions of 1798:
“In questions of power…let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
And here is what John Adams said in his 1772 Journal:
“There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty”.
It is literally impossible to conceive of any mindset more at odds with these basic principles than the one that urges that Barack Obama – unlike George Bush or Mitt Romney or whoever the scary GOP villain of the day is – can be trusted to unilaterally and secretly kill or imprison or surveil anyone he wants because he is a Good man and a trustworthy leader and therefore his unproven accusations should be assumed true. But this is, overwhelmingly, the warped and authoritarian sentiment that now prevails in the bulk of the Democratic Party and its self-identified “progressive” faction, just as it did in the GOP and its conservative wing for eight years.
Ultimately, this unhealthy and dangerous trust in one’s own leader – beyond just the normal human desire to follow – is the by-product of over-identifying with the brand-marketed personality of politicians. Many East and West Coast progressives (which is overwhelmingly what Democratic Party opinion leaders are) have been trained to see themselves and the personality traits to which they aspire in Obama (the urbane, sophisticated, erudite Harvard-educated lawyer and devoted father and husband), just as religious conservatives and other types of Republicans were trained to see Bush in that way (the devout evangelical Christian, the brush-clearing, patriotic swaggering cowboy, and devoted father and husband).
Politicians are thus perceived like contestants in a reality TV show: viewers decide who they like personally and who they dislike – but the difference is that these images are bolstered with hundreds of millions of dollars of relentless, sophisticated, highly manipulative propaganda campaigns (there’s a reason the Obama 2008 campaign won multiple branding awards from the advertising and marketing industry). When one is taught to relate to a politician based on a fictitious personal relationship, one comes to place excessive trust in those with whom one identifies (the way one comes to trust, say, a close family member or loved one), and to harbor excessive contempt for those one is trained to see as the villain character. In sum, citizens are being trained to view politicians exactly the way Jefferson warned was so dangerous: “In questions of power…let no more be heard of confidence in man.”
There’s one final irony worth noting in all of this. Political leaders and political movements convinced of their own Goodness are usually those who need greater, not fewer, constraints in the exercise of power. That’s because – like religious True Believers – those who are convinced of their inherent moral superiority can find all manner to justify even the most corrupted acts on the ground that they are justified by the noble ends to which they are put, or are cleansed by the nobility of those perpetrating those acts.
Political factions driven by self-flattering convictions of their own moral superiority – along with their leaders – are the ones most likely to abuse power. Anyone who ever listened to Bush era conservatives knows that this conviction drove them at their core (“you are with us or with the Terrorists”), and it is just as true of Obama-era progressives who genuinely see the political landscape as an overarching battle between forces of Good (Democrats: i.e., themselves) and forces of Evil (Republicans).
Thus should it be completely unsurprising that Obama (and his most ardent followers) genuinely believe that rules are urgently necessary to constrain Republicans from killing whoever they want, but that such urgency ceases to exist when that power rests in the hands of the current benevolent leader. Such a dangerous and perverse mindset is incredibly pervasive in the citizenry, and goes a long way toward explaining why and how the US government has been able to seize the powers it has wielded over the last decade with so little resistance, and with no end in sight.
© 2012 Guardian News and Media Limited
Posted by rogerhollander in Civil Liberties, Constitution, Criminal Justice.
Tags: bradley manning, civilian casualties, constitution, cruel and unusual, Iraq war, nobel peace, presumption of innocence, roger hollander, solitary confinement, wikileaks
Roger’s note: nothing much new in this post, but I think it is important for us not to forget Bradley Manning. Wouldn’t it be a genuine triumph for justice if he were awarded the Nobel Peace Prize?
Published on Monday, November 26, 2012 by Common Dreams
24-year-old accused of releasing classified documents to WikiLeaks
– Common Dreams staff
Three months before Bradley Manning is scheduled to face a court martial, and more than two years after his arrest, lawyers for 24-year-old Army Private First Class say the intelligence analyst accused of releasing classified documents to Wikileaks has already been punished for yet unproven charges, including violation of the Espionage Act and aiding the enemy.
A rally outside the gates of Fort Meade on Dec. 17, 2011, to bring media awareness to the growing movement supporting PFC Bradley Manning. At front, left to right, are political spokespeople attorney Kevin Zeese, LGBTQ activist Lt. Dan Choi and retired US Diplomat Col Ann Wright. Pentagon Papers whistle-blower Daniel Ellsberg joined the group of supporters at the hearing later in the week. (Photo: Bradley Manning Support Network via Flickr)
Manning is accused of releasing hundreds of thousands of classified documents which were published on Wikileaks that show the killing of unarmed civilians and two Reuters journalists by a US Apache helicopter in Iraq, McClatchy reports.
The exposed Baghdad attack left 12 dead. In a video, the American helicopter crew can be heard laughing and referring to Iraqi dead as “dead bastards.”
Manning is also accused of sharing the Afghan War Diary, the Iraq War Logs and a series of embarrassing US diplomatic cables, in violation of military regulations, which the website BradleyManning.org says “have illuminated such issues as the true number and cause of civilian casualties in Iraq, along with a number of human rights abuses by US-funded contractors and foreign militaries, and role that spying and bribes play in international diplomacy.”
Earlier this month, Manning acknowledged that he was the source of the documents as “an act of conscience,” and was nominated for the Nobel Peace Prize. He faces 22 charges and is scheduled for a court martial in February 2013.
But from July 2010 to April 2011, Manning was held in solitary confinement at the US marine corps Brig in Quantico, Virginia.
The Baltimore Sun reports today that Manning’s lawyers allege that during that time:
Manning was held in ‘the functional equivalent of solitary confinement: ‘Confined to a six-by-eight-foot cell, with no window or natural light, for more than 23 and a half hours each day. He was awakened at 5 a.m. each morning and required to remain awake until 10 p.m., his lawyers say. He was not permitted to lie on his bed or lean against the cell wall. He was not allowed to exercise in his cell.
If guards found him asleep during five-minute checks, they awakened him.
Lawyers argue that such “egregious” treatment of an as-yet-untried suspect, despite testimony by psychiatrists who said he presented no risk to himself and that the treatment was causing him psychological harm, is illegal pretrial punishment and violates the Uniform Code of Military Justice and US Constitution.
The British government and Amnesty International spoke out against his treatment, with Amnesty International calling conditions “unnecessarily severe and amount(ing) to inhumane treatment by US authorities.”
“Manning has not been convicted of any offense, but military authorities appear to be using all available means to punish him while in detention,” the human rights group said. “This undermines the United States’ commitment to the principle of the presumption of innocence.”
In July, UN torture investigator Juan Mendez accused the US government of harsh treatment of Manning that may amount to torture.
Since the Quantico brig was closed in December 2011, Manning has been in medium-security confinement in Fort Leavenworth, the Baltimore Sun reports.
McClatchy reports that Dwight H. Sullivan, a former Marine Corps attorney who now teaches military law at George Washington University, says military law allows for the dismissal of charges against a suspect who is found to have been punished before trial— but such cases are rare.
Manning may begin testifying as a witness in pre-trial hearings as soon as Tuesday. If convicted, he could be sentenced to life in prison.
Posted by rogerhollander in Barack Obama, Civil Liberties, Constitution, Criminal Justice, War.
Tags: drone missiles, kill list, Obama, presidential assassination, roger hollander, targeted killing, War Crimes
Roger’s note: it is typical hubris of Obama and the Democratic Party to think that only they have the moral stature to order assassinations totally devoid of any process, much less due process. In the worry of the drone killing machine in the hands of a Romney presidency, it never occurred to them the precedent they have set, and that some day in the future the presidency will indeed be in the hands of a maniac like Romney or worse. The thinking of Barack Obama, the constitutional scholar and Nobel Peace laureate: let’s construct a legal structure for an immoral and illegal (by any reasonable standards) project of presidential ordained murder. It has been said over and over again — and we have right before us the ludicrous and disgusting Bush administration’s “legal” justification for torture – that the greatest crimes in history, from the poisoning of Socrates to the Nazi Holocaust, have been done within a “legal” structure. There seems to be a collective amnesia with respect to the Nuremberg principles.
Published on Sunday, November 25, 2012 by Common Dreams
– Common Dreams staff
A report in the New York Times on Sunday describes how, leading up to the recent US election, the Obama administration made a determined push to codify guidelines for its targeted assassination (aka ‘Kill List’) program and clarify rules for the use of US predator drones strikes overseas.
(Amarjit Sidhu/Al Arabiya)
Critics of the US drone program have long made the argument that Demoractic supporters of the President would perhaps lose their enthusiasm (or passive acceptance) for the “kill list” program if it was placed in the hands of a Republican president like the party’s most recent hopeful, Mitt Romney.
The Times reporting on Sunday seems to indicate that the fear of handing over an amiguous and secretive assassination program to a Republican administration was also shared by some top officials in the Obama administration.
Reported by the paper’s Scott Shane, the article says that the “attempt to write a formal rule book for targeted killing began last summer after news reports on the drone program, started under President George W. Bush and expanded by Mr. Obama, revealed some details of the president’s role in the shifting procedures for compiling “kill lists” and approving strikes.”
Though the Obama administration has continually sought to protect the secrecy of certain details of its program, it has simultaneously defended its usefulness in combating international terrorism. This contradiction has been seized by international human rights groups, US civil libertarians, journalists, and the United Nations, calling on the US government to come clean on how it justifies the extrajudicial killing of individuals–both foreign citizens and American nationals–in countries like Pakistan, Yemen, Somalia, and others.
Shane reports that “the president and top aides believe [the programs] should be institutionalized,” and that efforts to do “seemed particularly urgent when it appeared that Mitt Romney might win the presidency.”
The report continues:
“There was concern that the levers might no longer be in our hands,” said one official, speaking on condition of anonymity. With a continuing debate about the proper limits of drone strikes, Mr. Obama did not want to leave an “amorphous” program to his successor, the official said. The effort, which would have been rushed to completion by January had Mr. Romney won, will now be finished at a more leisurely pace, the official said.
Mr. Obama himself, in little-noticed remarks, has acknowledged that the legal governance of drone strikes is still a work in progress.
“One of the things we’ve got to do is put a legal architecture in place, and we need Congressional help in order to do that, to make sure that not only am I reined in but any president’s reined in terms of some of the decisions that we’re making,” Mr. Obama told Jon Stewart in an appearance on “The Daily Show” on Oct. 18.
In an interview with Mark Bowden for a new book on the killing of Osama bin Laden, “The Finish,” Mr. Obama said that “creating a legal structure, processes, with oversight checks on how we use unmanned weapons, is going to be a challenge for me and my successors for some time to come.”
The president expressed wariness of the powerful temptation drones pose to policy makers. “There’s a remoteness to it that makes it tempting to think that somehow we can, without any mess on our hands, solve vexing security problems,” he said.
Despite public remarks by Mr. Obama and his aides on the legal basis for targeted killing, the program remains officially classified. In court, fighting lawsuits filed by the American Civil Liberties Union and The New York Times seeking secret legal opinions on targeted killings, the government has refused even to acknowledge the existence of the drone program in Pakistan.
In an interesting aside, the report also notes that the United Nations plans to open a unit in Geneva early next year to investigate American drone strikes.
Such a development was hinted at last month when the UN’s special rapporteur on counterterrorism and human rights announced that the Human Rights Council at the UN would likely initiate an investigation into civilian deaths caused by the CIA and US military’s use of drones and other targeted killing programs.
Ben Emmerson, UN special rapporteur on counterterrorism and human rights, at speech given at Harvard Law School, that he and his UN colleague, Christof Heyns, the special rapporteur on extrajudicial killings, warned that an investigation of the US program was warranted and said that if certain allegations against the US proved true, he would consider them serious enough to call “war crimes”.
Posted by rogerhollander in Civil Liberties, Constitution, Criminal Justice, Human Rights, Torture.
Tags: Abu Ghraib, aclu, cia interrogators, CIA torture, detainee deaths, eric holder, geneva conventions, Guantanamo, Gul Rahman, jim lobe, justice department, Manadel al-Jamadi, roger hollander, torture, waterborading
Roger’s note: when Obama made that ridiculous and inane statement, I posted here an article entitled “Looking forward not backward code for no justice.” Next time you commit a crime and are put on trial, just tell the judge that it is time to look forward and not backward. Refer to the brilliant opinion of that constitutional law scholar who is the current president of the United States. The charges against you are sure to be dropped.
WASHINGTON – U.S. human rights groups have roundly condemned Thursday’s announcement by Attorney General Eric Holder that the Justice Department will not pursue prosecutions of Central Intelligence Agency (CIA) officers who may have been responsible for the deaths of two prisoners in their custody.
Rights groups denounced the decision not to pursue prosecutions of CIA officers who may have been responsible for the deaths of two prisoners in their custody. (Credit: Fahim Siddiqi/IPS)
The announcement appeared to mark the end of all efforts by the U.S. government to hold CIA interrogators accountable for torture and mistreating prisoners detained during the so-called “Global War on Terror” launched shortly after the Al Qaeda attacks on Sep. 11, 2001.
For rights activists and for supporters of President Barack Obama, it was the latest in a series of disappointing decisions, including the failure to close the detention facility at the U.S. base in Guantanamo, Cuba. They had hoped Obama would not only end the excesses of President George W. Bush’s prosecution of the war, but also conduct a full investigation of those excesses, if not prosecute those responsible.
“This is truly a disastrous development,” said Laura Pitter, counter-terrorism advisor at Human Rights Watch (HRW). “To now have no accountability whatsoever for any of the CIA abuses for which there are now mountains of evidence is just appalling.”
“It completely undermines the U.S.’s ability to have any credibility on any of these issues in other countries, even as it calls for other countries to account for abuses and prosecute cases of torture and mistreatment,” she told IPS.
“Continuing impunity threatens to undermine the universally recognised prohibition on torture and other abusive treatment and sends the dangerous signal to government officials that there will be no consequences for their use of torture and other cruelty,” noted Jameel Jaffar, deputy legal director of the American Civil Liberties Union (ACLU).
“Today’s decision not to file charges against individuals who tortured prisoners to death is yet another entry in what is already a shameful record.”
In his announcement, Holder suggested that crimes were indeed committed in the two cases that were being investigated by Assistant U.S. Attorney John Durham but that convictions were unlikely.
“Based on the fully developed factual record concerning the two deaths, the department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt,” he said.
The two deaths took place at a secret CIA detention facility known as the Salt Pit in Afghanistan in 2002 and at the notorious Abu Ghraib prison the following year. The victims have been identified as Gul Rahman, a suspected Taliban militant, and Manadel Al-Jamadi, an alleged Iraqi insurgent.
The two were the last reviewed by Durham, who had originally been tasked by Bush’s attorney general, Michael Mukasey, in 2008 with conducting a criminal investigation into CIA interrogators’ use of “waterboarding” against detainees and the apparently intentional destruction of interrogation videotapes that recorded those sessions.
In August 2009, Holder expanded Durham’s mandate to include 101 cases of alleged mistreatment by CIA interrogators of detainees held abroad to determine whether any of them may be liable to prosecution.
At the time, he also stressed that he would not prosecute anyone who acted in good faith and within the scope of the controversial legal guidance given by the Bush administration regarding possible “enhanced interrogation” techniques that could be used against detainees.
Such techniques, which include waterboarding, the use of stress positions and extreme heat and cold, are widely considered torture by human rights groups and international legal experts. As such, they violate the U.N. Convention Against Torture (CAT), as well as the Geneva Conventions and a 1996 U.S. federal law against torture.
Holder’s position was consistent with Obama’s statement, which human rights groups also strongly criticised, shortly after taking office in 2009 that he did not want CIA officials to “suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering” to escape prosecution and that he preferred “to look forward as opposed to…backwards”.
In his first days in office, Obama ordered all secret CIA detention facilities closed and banned the enhanced techniques authorised by his predecessor.
In late 2010, Durham announced that he would not pursue criminal charges related to the destruction of the CIA videotapes. Seven months later, he recommended that, of the 101 cases of alleged CIA abuse referred to him, only two warranted full criminal investigations in which CIA officers had allegedly exceeded the Bush administration’s guidelines for permissible interrogation techniques.
Now that Holder and Durham have concluded that prosecutions of the individuals involved are unlikely to result in convictions, it appears certain that no CIA officer will be prosecuted in a U.S. jurisdiction. Prosecutions of Bush officials responsible for authorising the “enhanced interrogation” techniques have also been ruled out.
In 2006, a private contractor for the CIA was successfully prosecuted and sentenced to six years in prison for beating an Afghan detainee to death three years before.
Some commentators suggested that these decisions, including the dropping of the two remaining cases, have been motivated primarily by political considerations. Indeed, HRW director Kenneth Roth wrote in an op-ed last year that “dredging up the crimes of the previous administration was seen as too distracting and too antagonistic an enterprise when Republican votes were needed”.
In a statement Thursday, the Republican chairman of the House Intelligence Committee praised Holder’s decision. Republicans protested Holder’s referral of the 101 cases to Durham in 2009.
But rights activists expressed great frustration. Holder’s announcement “is disappointing because it’s well documented that in the aftermath of 9/11, torture and abuse were widespread and systematic,” said Melina Milazzo of Human Rights First (HRF), which has been one of the most aggressive groups in investigating and publicising torture and abuse by U.S. intelligence and military personnel.
“It’s shocking that the department’s review of hundreds of instances of torture and abuse will fail to hold even one person accountable.”
Similarly, the Centre for Constitutional Rights (CCR) noted that Holder’s announcement “belies U.S. claims that it can be trusted to hold accountable Americans who have perpetrated torture and other human rights abuses”.
It said the decision “underscores the need for independent investigations elsewhere, such as the investigation in Spain, to continue”. Victims and rights groups including CCR filed criminal complaints against former Bush officials in Spanish courts in 2009, launching two separate investigations by judges there.
© 2012 IPS
Posted by rogerhollander in Civil Liberties, Constitution, Criminal Justice, Human Rights, Torture.
Tags: Abu Ghraib, aclu, afaghnaistan, cia, detainees, eric holder, Gul Rahman, human rights, Iraq, justice department, Manadel al-Jamadi, roger hollander, torture
Published on Friday, August 31, 2012 by Common Dreams
Years-long Justice Dept. investigation ends without accountability
- Common Dreams staff
The CIA will face no charges over the torture and death of detainees while in custody, the U.S. Justice Department announced on Thursday as it ended a criminal investigation begun by Assistant U.S. Attorney John Durham in 2008. Rights groups have called the decision “nothing short of a scandal.”
Gul Rahman, who died in 2002 while being held at a secret CIA facility known as the ‘Salt Pit’ in Afghanistan (photo: AP)
Attorney General Eric Holder said in a statement, “Based on the fully developed factual record concerning the two deaths, the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”
Democracy Now! summarizes the part of the investigation begun in June of 2011 into the deaths of two detainees: “The Justice Department had been probing the deaths of two men: one in Iraq, and one in Afghanistan. Gul Rahman died in 2002 while being held at a secret CIA facility known as the ‘Salt Pit’ in Afghanistan. He had been shackled to a concrete wall in near-freezing temperatures. Manadel al-Jamadi died in 2003 while in CIA custody at Iraq’s notorious Abu Ghraib prison. His corpse was photographed packed in ice and wrapped in plastic.”
The ACLU slammed the decision.
“That the Justice Department will hold no one accountable for the killing of prisoners in CIA custody is nothing short of a scandal,” said Jameel Jaffer, ACLU deputy legal director. “The Justice Department has declined to bring charges against the officials who authorized torture, the lawyers who sought to legitimate it, and the interrogators who used it. It has successfully shut down every legal suit meant to hold officials civilly liable.
“Continuing impunity threatens to undermine the universally recognized prohibition on torture and other abusive treatment and sends the dangerous signal to government officials that there will be no consequences for their use of torture and other cruelty. Today’s decision not to file charges against individuals who tortured prisoners to death is yet another entry in what is already a shameful record.”
The Center for Constitutional Rights also criticized the decision and noted the importance of independent investigations.
“Once again, the United States has shown it is committed to absolving itself of any responsibility for its crimes over the past decade. Today’s announcement belies U.S. claims that it can be trusted to hold accountable Americans who have perpetrated torture and other human rights abuses, and underscores the need for independent investigations elsewhere, such as the investigation underway in Spain, to continue. Impunity does not always cross borders,” the group stated.