Open Letter to ACLU Director Anthony Romero February 23, 2013Posted by rogerhollander in Civil Liberties, Criminal Justice, Democracy, Occupy Wall Street Movement.
Tags: #occupy movement, aaron swartzs, aclu, al-jazeera, Anthony Romero, barrett brown, bracley manning, civil liberties, democracy, drones, fbi infiltartion, first amendment, gary webb, Homeland Security, josh mitteldorf, julian assange, protest, roger hollander, torture
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OpEdNews Op Eds 2/22/2013 at 16:59:12
Dear Mr Romero-
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
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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
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.
US: Rights Groups Denounce Dropping of CIA Torture Cases September 2, 2012Posted 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
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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.
Tags: Abu Ghraib, aclu, afaghnaistan, cia, detainees, eric holder, Gul Rahman, human rights, Iraq, justice department, Manadel al-Jamadi, roger hollander, torture
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Published on Friday, August 31, 2012 by Common Dreams
Years-long Justice Dept. investigation ends without accountability
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.
When It Looks and Feels Like Totalitarianism… May 4, 2012Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Democracy, Human Rights.
Tags: aclu, civil liberties, domestic insurrection, executive power, human rights, jemima pierre, ndaa, obama administration, ows, patriot act, police state, preventive detention, roger hollander, surveillance state, trespass bill, trespass law
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by BAR editor and columnist Jemima Pierre
The Obama administration has spent the last three years building the infrastructure of a totalitarian police state, that “has surpassed the Bush administration’s attempts to expand executive power by crushing the civil liberties of US citizens.” At the center of the repressive edifice is preventive detention without trial, buttressed by various measures that, effectively, criminalize dissent. Clearly, and methodically, “the US government is preparing for domestic insurrection.”
When It Looks and Feels Like Totalitarianism…
by BAR editor and columnist Jemima Pierre
“The NDAA’S dangerous detention provisions would authorize the president – and all future presidents – to order the military to pick up and indefinitely imprison people captured anywhere in the world, far from any battlefield.”
George W. Bush would blush. Joseph McCarthy would be proud. And COINTELPRO now seems like child’s play. In only three years,the Obama administration and its enablers have established, legitimized, and normalized a national security state apparatus that removes any doubt that domestic policing is a prelude to a totalitarian police state. This apparatus has surpassed the Bush administration’s attempts to expand executive power by crushing the civil liberties of US citizens. And it has done so boldly, with only a few prominent critics, and without so much as a whimper from so-called leftists.
What we urgently need is a compilation of the various acts, presidential signing statements, domestic surveillance programs, secret military and police operations, censorships, and other administrative measures that affect not only our civil liberties, but also our human rights and human dignity. For now, I will focus on two of the more recent congressionally approved draconian laws passed by the Obama administration.
On New Year’s Eve, 2011, away from the glitter and swoon of the media, Obama signed into law the National Defense Authorization Act of 2012 (or NDAA).The law states that based on suspicion alone, the military can indefinitely detain anyone who is considered a “terrorist” or deemed an accessory to terrorism. This includes US citizens. According to the ACLU, this law codifies “indefinite military detention without charge or trial into law for the first time in American history.” “The NDAA’S dangerous detention provisions,” the ACLU continues, “would authorize the president – and all future presidents – to order the military to pick up and indefinitely imprison people captured anywhere in the world, far from any battlefield.”
“The Obama administration and its enablers have established, legitimized, and normalized a national security state apparatus that removes any doubt that domestic policing is a prelude to a totalitarian police state.”
What is most dangerous about this law, according to its many critics, is its broad language about who can be considered a target. In his column describing why he is suing the Obama administration over NDAA, journalist Chris Hedges points particularly to Section 1031 defining a potential target as a person who is either a member of, or substantially supported, al-Qaeda, the Taliban, or “associated forces that are engaged in hostilities against the United States or its coalition partners.” This also includes “any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” The law doesn’t define what “associated forces” are, or what “engaging in hostilities” against the US means. And because the definition of a “terrorist” shifts according to political necessity, all of us – all over the world – are potential targets and eventual victims. Historically, we have seen how the US government has labeled “domestic terrorist” any persons or groups, particularly those on the left, who have dared challenge inequality and state oppression (clear examples are the American Indian Movement and the Black Power Movement). Most recently, we have seen the brutal suppression of domestic dissent through the militarized dismantling of Occupy Wall Street encampments – which brings us to the next worrisome law, HR 347.
The Federal Restricted Buildings and Grounds Improvement Act of 2011 or the “Trespass Bill” (HR 347 and its companion Senate bill, S. 1794) was signed into law by Obama on March 9, 2012. This law, according to a Business Insiderarticle, “potentially makes peaceable protest anywhere in the U.S. a federal felony punishable by up to 10 years in prison.” What it says, specifically, is that anyone can be charged with a federal felony for “trespassing” on property or grounds that is under Secret Service protection, even if the supposed “trespasser” is not aware that the area is under such protection. One can also be charged if he or she “impede[s] or disrupt[s] the orderly conduct of Government business or official functions.” This law effectively criminalizes any form of protest. This means that any place or event can, at any time and under any circumstance, be designated a “trespass” area and, anyone protesting any event can potentially be arrested. Knowing also that under NDAA, once arrested, a person can be detained indefinitely and extradited if he or she is deemed a threat, should give us all pause.
“Any place or event can, at any time and under any circumstance, be designated a “trespass” area and, anyone protesting any event can potentially be arrested.”
Along with these new laws, there is the recent Executive Order signed by Obama on March 16, 2012: National Defense Resource Preparedness (EO 8248). This order allows the executive branch – through various federal authorities such as the Secretaries of Energy, Health and Human Services, Transportation, Defense, and Commerce – to take control of all food, all energy, all health resources and all transportation resources in the service of “national defense,” even in times of declared peace. It is true that this latest executive order is an update to the one signed by Bill Clinton in 1994. But in the context of the growing number of laws that expand executive and military power to stifle dissent along with the rapidly expanding national security enterprise, we should be wary.
Since the passing of the Patriot Act in 2001 and its reauthorization by Obama last year, we have seen assaults on our dignity, our human rights and ability to protest. These assaults now come from multiple fronts and contain diverse tactics. And they affect us all. We see examples in the local and federal militarized response to the Occupy Wall Street movements, the deployment of drones domestically by city governments, universities, private contractors, and local police (see domestic drone authorization map here), and we see how the Obama administration has waged an all out war against whistleblowers by using the archaic World War I era Espionage Act, prosecuting more people than all other presidents combined.More importantly, there is what the Washington Post last year called the “National Security Enterprise” that depends on “854,000 civil servants, military personnel and private contractors with top-security clearances,” and whose major work is domestic surveillance to curtail dissent. The unprecedented $1.5 billion, almost 1 million square feet National Security Agency data center (or “Spy Center”) that is being built in Utah, is to work both as a bottomless database for all information on all Americans, and as a remote interrogation center.
With all of this, it is clear that, even though it seems to only be concerned with international wars and other misadventures, the US government is preparing for domestic insurrection. And it has done so by unleashing the structures of totalitarianism, as it seeks to regulate our actions through mass surveillance, fear, and threats of repression. (For how else can we understand the recent purchase by the Department of Homeland Security of nearly 500 million rounds of ultra-deadlyhollow-point bullets and 40 caliber ammo, as well as a large number of semi-portable steel checkpoint guardhouses, complete with high-impact bulletproof glass windows and doors?)
And why not? The political order is being shaken, the Western financial infrastructure is collapsing, and empire is imploding. They know it and they are ready.
Jemima Pierre can be reached at BAR1804@gmail.com.
Obama takes Bush’s secrecy games one step further March 26, 2012Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Democracy.
Tags: aclu, cia drones, drone missile, eric holder, foia, glenn greenwald, national security, Obama, roger hollander, rule of law, state secret
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REPORTING FROM ISLAMABAD, PAKISTAN — A U.S. drone missile strike killed four suspected militants in northwest Pakistan on Wednesday, ending a six-week hiatus in such attacks, imposed by Washington following American airstrikes late last year that killed 24 Pakistani soldiers and severely marred relations between the two nations.
After repeatedly boasting about it in public, Obama officials tell courts it cannot confirm the CIA drone program
The ACLU is suing the Obama administration under the Freedom of Information Act (FOIA), seeking to force disclosure of the guidelines used by Obama officials to select which human beings (both U.S. citizens and foreign nationals) will have their lives ended by the CIA’s drone attacks (“In particular,” the group explains, the FOIA request “seeks to find out when, where and against whom drone strikes can be authorized, and how the United States ensures compliance with international laws relating to extrajudicial killing”). The Obama administration has not only refused to provide any of that information, but worse, the CIA is insisting to federal courts that it cannot even confirm or deny the existence of a drone program at all without seriously damaging national security; from the CIA’s brief in response to the ACLU lawsuit:
. . .
What makes this so appalling is not merely that the Obama administration demands the right to kill whomever it wants without having to account to anyone for its actions, choices or even claimed legal authorities, though that’s obviously bad enough (as I wrote when the ACLU lawsuit was commenced: “from a certain perspective, there’s really only one point worth making about all of this: if you think about it, it is warped beyond belief that the ACLU has to sue the U.S. Government in order to force it to disclose its claimed legal and factual bases for assassinating U.S. citizens without charges, trial or due process of any kind”). What makes it so much worse is how blatantly, insultingly false is its claim that it cannot confirm or deny the CIA drone program without damaging national security.
Numerous Obama officials — including the President himself and the CIA Director — have repeatedly boasted in public about this very program. Obama recently hailed the CIA drone program by claiming that “we are very careful in terms of how it’s been applied,” and added that it is “a targeted, focused effort at people who are on a list of active terrorists, who are trying to go in and harm Americans, hit American facilities, American bases and so on.” Obama has told playful jokes about the same drone program. Former CIA Director and current Defense Secretary Leon Panetta also likes to tell cute little jokes about CIA Predator drones, and then proclaimed in December that the drone program has “been very effective at undermining al Qaeda and their ability to plan those kinds of attacks.” Just two weeks ago, Attorney General Eric Holder gave a speech purporting to legally justify these same drone attacks.
So Obama officials are eager to publicly tout the supposed benefits of the CIA’s drone programs in order to generate political gain for the President: to make him look like some sort of Tough, Brave Warrior single-handedly vanquishing Al Qaeda. The President himself boasts about how tightly controlled, precise and effective the CIA drones are. Everyone in the world knows the CIA has a drone program. It is openly discussed everywhere, certainly including the multiple Muslim countries where the drones routinely create piles of corpses, and by top U.S. Government officials themselves.
But then when it comes time to test the accuracy of their public claims by requesting the most basic information about what is done and how execution targets are selected, and when it comes time to ask courts to adjudicate its legality, then suddenly National Security imperatives prevent the government even from confirming or denying the existence of the program: the very same program they’ve been publicly boasting and joking about. As the ACLU’s Jameel Jaffer put it after Obama publicly defended the program: “At this point, the only consequence of pretending that it’s a secret program is that the courts don’t play a role in overseeing it” – that, and ensuring that any facts that contradict these public claims remain concealed.
This is why the U.S. Government’s fixation on secrecy — worse than ever under the Obama administration, as evidenced by its unprecedented war on whistleblowers — is so pernicious. It not only enables government officials to operate in the dark, which inevitably ensures vast (though undiscovered) abuses of power. Worse, it enables the government to aggressively propagandize the citizenry without challenge: Obama officials are free to make all sorts of claims about how great and targeted the drone program is and how it Keeps Us Safe™, while simultaneously suppressing any evidence or information that would test those claims and/or contradict them.
Worse still, it literally removes our highest political officials from the rule of law. The sole purpose of these vast claims of secrecy around the drone program — the absurd notion that they cannot even confirm or deny its existence without harming National Security — is to block courts from reviewing the legality of what they’re doing, which is another way of saying: they have removed themselves from the rule of law. Even Bush DOJ lawyer Jack Goldsmith, a vociferous advocate of executive power and secrecy powers, understands how abusive this is:
First, it is wrong . . . for the government to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications. It is wrong because it is illegal. It is wrong because it damages (though perhaps not destroys) the diplomatic and related goals of covertness. And it is wrong because the Executive branch seems to be trying to have its cake (not talking about the program openly in order to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking promiscuously to get credit for the operation and to portray it as lawful).
Indeed, one of the worst abuses of the lawless Bush presidency was that Bush officials repeatedly invoked secrecy powers (the State Secret privilege) to shield their most controversial and lawless programs from judicial review: warrantless eavesdropping, rendition, and torture. One of the earliest alarms about what the Obama presidency would be was when the Obama DOJ told courts early in 2009 that it would continue to assert those same radical secrecy claims: thus telling courts that the very programs which candidate Obama long denounced as illegal were now such vital State Secrets that courts must not risk their disclosure by adjudicating their legality. Beyond Obama’s decree that the DOJ must not investigate Bush-era crimes, that was the instrument used by Obama to shield Bush’s criminal policies from judicial challenge: through Kafkaesque claims of secrecy whereby programs that everyone in the world knows exist were Too Secret even to let courts examine. In sum, there is only one place in the entire world where these policies of warrantless eavesdropping, rendition, torture, and CIA drones cannot be discussed: in American courts, when it’s time to review their legality and/or allow its victims to vindicate their legal rights.
Now, in this ACLU/FOIA case, the Obama administration is taking these warped secrecy games one step further. They boast publicly about the programs to lavish themselves with praise, only to turn around once they’re sued in court and insist that the programs are too secret even to acknowledge. So extreme is the fixation on secrecy from the Most Transparent Administration Ever™ that they are routinely reduced to this type of self-parody; behold how they are insisting in response to a separate FOIA lawsuit from The New York Times that they cannot even confirm or deny the existence of the OLC memo which authorized the assassination of Anwar Awlaki — even though the NYT reported on its contents. More amazingly still, the Obama administration continues to insist that they cannot confirm or deny the memo’s existence even after Eric Holder talks about the memo in a Senate hearing.
This would be laughable if it were not so destructive. It results in the government’s most consequential actions being completely shielded not only from public scrutiny, but also from the rule of law. It enables the most powerful political officials to inculcate the public with claims about their actions while preventing any form of checks and suppressing any contrary information. It literally means that the Obama administration is able to conduct multiple secret wars around the world, ones conducted by drone attacks, the very existence of which they refuse to acknowledge. And it is yet another means of how the Obama presidency is cementing the worst abuses of the Bush presidency: the very same ones he so inspirationally vowed to reverse.
Glenn Greenwald (email: GGreenwald@salon.com) is a former Constitutional and civil rights litigator and is the author of two New York Times Bestselling books on the Bush administration’s executive power and foreign policy abuses. His just-released book, With Liberty and Justice for Some, is an indictment of America’s two-tiered system of justice, which vests political and financial elites with immunity even for egregious crimes while subjecting ordinary Americans to the world’s largest and most merciless penal state. Greenwald was named by The Atlantic as one of the 25 most influential political commentators in the nation. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, and is the winner of the 2010 Online Journalism Association Award for his investigative work on the arrest and oppressive detention of Bradley Manning.
Tags: aclu, al-Qaeda, cia assassination, civil liberties, Criminal Justice, democratic party, due process, eric holder, glenn greenwald, judicial review, Obama, presidential power, roger hollander, rule of law, terrorists, war on terror, warrantless eavesdropping
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Roger’s note: declare “war” on something, war on terror, for example, and you then have the absolute right to kill the “enemy” no questions asked. Prior to the so-called war on terror, there had been acts of terrorism for centuries. They were always dealt with via intelligence gathering and other policing techniques, and alleged terrorists prosecuted through he judicial system (albeit with notable examples of abuse, e.g. Sacco and Vanzetti). This made sense. The ultimate purpose of the war on terror today is to militarize civilian authority. Declare war and you have every right to kill whomever you say is the enemy, be it a citizen or a foreigner. The world is a battlefield. By this logic, the president and the CIA should be able to execute anyone they deem active in the phony “war on drugs.” I am surprised that they haven’t … yet. When they declare war on left-wing political comedians, look out Jon Stewart and Stephen Colbert.
Tuesday, Mar 6, 2012 4:50 AM 20:09:43 EST, www.salon.com
A new speech by Eric Holder cements Obama’s legacy as the president who pioneered secretive, charge-less executions
Barack Obama and Eric Holder (Credit: Reuters)
In a speech at Northwestern University yesterday, Attorney General Eric Holder provided the most detailed explanation yet for why the Obama administration believes it has the authority to secretly target U.S. citizens for execution by the CIA without even charging them with a crime, notifying them of the accusations, or affording them an opportunity to respond, instead condemning them to death without a shred of transparency or judicial oversight. The administration continues to conceal the legal memorandum it obtained to justify these killings, and, as The New York Times‘ Charlie Savage noted, Holder’s “speech contained no footnotes or specific legal citations, and it fell far short of the level of detail contained in the Office of Legal Counsel memo.” But the crux of Holder’s argument as set forth in yesterday’s speech is this:
Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.
When Obama officials (like Bush officials before them) refer to someone “who is a senior operational leader of Al Qaeda or associated forces,” what they mean is this: someone the President has accused and then decreed in secret to be a Terrorist without ever proving it with evidence. The “process” used by the Obama administration to target Americans for execution-by-CIA is, as reported last October by Reuters, as follows:
American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions . . . There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council . . . Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.
As Leon Panetta recently confirmed, the President makes the ultimate decision as to whether the American will be killed: “[The] President of the United States obviously reviews these cases, reviews the legal justification, and in the end says, go or no go.”
So that is the “process” which Eric Holder yesterday argued constitutes “due process” as required by the Fifth Amendment before the government can deprive of someone of their life: the President and his underlings are your accuser, your judge, your jury and your executioner all wrapped up in one, acting in total secrecy and without your even knowing that he’s accused you and sentenced you to death, and you have no opportunity even to know about, let alone confront and address, his accusations; is that not enough due process for you? At Esquire, Charles Pierce, writing about Holder’s speech, described this best: “a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo.”
* * * * *
I’ve obviously written about the Obama assassination program many times before but there are several points worth examining in light of Holder’s speech and the reaction to it:
(1) The willingness of Democrats to embrace and defend this power is especially reprehensible because of how completely, glaringly and obviously at odds it is with everything they loudly claimed to believe during the Bush years. Recall two of the most significant “scandals” of the Bush War on Terror: his asserted power merely to eavesdrop on and detain accused Terrorists without judicial review of any kind. Remember all that? Progressives endlessly accused Bush of Assaulting Our Values and “shredding the Constitution” simply because Bush officials wanted to listen in on and detain suspected Terrorists — not kill them, just eavesdrop on and detain them — without first going to a court and proving they did anything wrong. Yet here is a Democratic administration asserting not merely the right to surveil or detain citizens without charges or judicial review, but to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, with some righteous exceptions, the silence is deafening, or worse.
How can anyone who vocally decried Bush’s mere eavesdropping and detention powers without judicial review possibly justify Obama’s executions without judicial review? How can the former (far more mild powers) have been such an assault on Everything We Stand For while the latter is a tolerable and acceptable assertion of war powers? If Barack Obama has the right to order accused Terrorists executed by the CIA because We’re At War, then surely George Bush had the right to order accused Terrorists eavesdropped on and detained on the same ground.
That the same Party and political faction that endlessly shrieked about Bush’s eavesdropping and detention programs now tolerate Obama’s execution program is one of the most extreme and craven acts of dishonesty we’ve seen in quite some time. By stark contrast, right-wing leaders, pundits and bloggers are being commendably consistent: they cheered for Bush’s due-process-free eavesdropping and detention programs and, based on exactly the same reasoning, they now lavishly praise President Obama for extending that mentality to assassinations.
(2) It isn’t merely the Democratic Party generally and its hordes of adherents who have performed a complete reversal on these issues as of January 20, 2009. It’s also true of Barack Obama and Eric Holder themselves.
Throughout the Bush years, then-Sen. Obama often spoke out so very eloquently about the Vital Importance of Due Process even for accused Terrorists. As but one example, he stood up on the Senate floor and denounced Bush’s Guantanamo detentions on the ground that a “perfectly innocent individual could be held and could not rebut the Government’s case and has no way of proving his innocence.” He spoke of “the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.” He mocked the right-wing claim “that judicial inquiry is an antique, trivial and dispensable luxury.” He acknowledged that the Government will unavoidably sometimes make mistakes in accusing innocent people of being Terrorists, but then provided the obvious solution: “what is avoidable is refusing to ever allow our legal system to correct these mistakes.” How moving is all that? What a stirring tribute to the urgency of allowing accused Terrorists a day in court before punishing them.
Then we have Eric Holder, who in 2008 gave a speech to the American Constitution Society denouncing Bush’s executive power radicalism and calling for a “public reckoning.” He specifically addressed the right-wing claim that Presidents should be allowed to eavesdrop on accused Terrorists without judicial review in order to Keep Us Safe. In light of what the Attorney General said and justified yesterday, just marvel at what he said back then, a mere three years ago:
To those in the Executive branch who say “just trust us” when it comes to secret and warrantless surveillance of domestic communications I say remember your history. In my lifetime, federal government officials wiretapped, harassed and blackmailed Martin Luther King and other civil rights leader in the name of national security. One of America’s greatest heroes whom today we honor with a national holiday, countless streets, schools and soon a monument in his name, was treated like a criminal by those in our federal government possessed of too much discretion and a warped sense of patriotism. Watergate revealed similar abuses during the Nixon administration.
To recap Barack Obama’s view: it is a form of “terror” for someone to be detained “without even getting one chance to prove their innocence,” but it is good and noble for them to be executed under the same circumstances. To recap Eric Holder’s view: we must not accept when the Bush administration says “just trust us” when it comes to spying on the communications of accused Terrorists, but we must accept when the Obama administration says “just trust us” when it comes to targeting our fellow citizens for execution. As it turns out, it’s not 9/11/01 that Changed Everything. It’s 1/20/09.
(3) The ACLU said yesterday that Holder’s speech “is ultimately a defense of the government’s chillingly broad claimed authority to conduct targeted killings of civilians, including American citizens, far from any battlefield without judicial review or public scrutiny.” The ACLU then added:
Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact.
Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.
This is notable for three reasons. First, the ACLU isn’t merely saying this is a bad policy; they are instead pointing out the obvious: that there are “few things as dangerous” as having your own Government assert the right to target citizens for death with no judicial process, yet that’s exactly what the Obama administration is doing with little backlash. Second, the ACLU is challenging progressive defenders of the President to do what none will ever do: explain why they would trust not only Barack Obama, but also Sarah Palin, or Newt Gingrich, or Michele Bachmann, with the power to target U.S. citizens for assassination in secret and with no judicial oversight. Third, that the ACLU is condemning an Obama policy as “as dangerous to American liberty” as a policy can be — also known as: a supreme hallmark of tyranny — demonstrates the huge gulf that has arisen under the Obama presidency between the Democratic Party and the ACLU (a group universally praised by Democrats when a Republican President is in office), though this gulf has been obvious for quite some time.
(4) What’s so striking is how identical Obama officials and their defenders sound when compared to the right-wing legal theorists who justified Bush’s most controversial programs. Even the core justifying slogans are the same: we are at War; the Battlefield is everywhere; Presidents have the right to spy on, detain and kill combatants without court permission; the Executive Branch is the sole organ for war and no courts can interfere in the President’s decisions, etc. I spent years writing about and refuting those legal theories and they are identical to what we hear now. Just consider how similar the two factions sound to one another.
When it came to their War on Terror controversies, Bush officials constantly said back then exactly what Obama officials and defenders say now: we’re only using these powers against Terrorists — The Bad People — not against regular, normal, Good Americans; so if you’re not a Terrorist, you have nothing to worry about. Here’s White House spokesman Trent Duffy in December, 2005, defending Bush’s warrantless eavesdropping program:
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.
Similarly, when George Bush went before the cameras in December, 2005, to proudly admit and defend his warrantless spying program, he assured the nation that this was all justified because it was only aimed at “the international communications of people with known links to al Qaeda and related terrorist organizations.”
Find a defender of Obama’s assassination program and all you’ll hear is exactly the same thing: this is only being directed at The Terrorists like Awlaki, so we don’t need any court review or due process. Here was Holder yesterday: “it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks,” and assassination orders are only issued once “the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States.”
This is nothing more than an exercise of supremely circular reasoning and question-begging: whether someone is actually a Terrorist can be determined only when the evidence of their guilt is presented and they have an opportunity to respond, just as Holder and Obama said during the Bush years. Government assurances that they’re only targeting Terrorists — whether those assurances issue from Bush or Obama — should reassure nobody: this is always what those who abuse power claim, and it’s precisely why we don’t trust government officials to punish people based on unproven accusations. Here’s what Nixon’s Attorney General, John Mitchell, said in order to assuage growing fears of new government eavesdropping powers, as reported by this July 25, 1969 article from Time Magazine:
Mitchell refused to disclose any figures, but he indicated that the number was far lower than most people might think. “Any citizen of this United States who is not involved in some illegal activity,” he added, “has nothing to fear whatsoever.”
We supposedly learned important lessons from the abuses of power of the Nixon administration, and then of the Bush administration: namely, that we don’t trust government officials to exercise power in the dark, with no judicial oversight, with no obligation to prove their accusations. Yet now we hear exactly this same mentality issuing from Obama, his officials and defenders to justify a far more extreme power than either Nixon or Bush dreamed of asserting: he’s only killing The Bad Citizens, so there’s no reason to object!
Here’s a critique I wrote in January, 2006, of the Bush DOJ’s 42-page whitepaper justifying its warrantless eavesdropping on accused Terrorists. Just read that and you’ll see: the essence of the Bush view of the world was that when it comes to war, it is the President who has sole responsibility and power and courts may not review or interfere with what he decides about who is a Terrorist and what should be done to them. The President is the “sole organ for the Nation in foreign affairs,” declared the Bush DOJ, and ”among the President’s most basic constitutional duties is the duty to protect the Nation from armed attack” and thus, “the Constitution gives him all necessary authority to fulfill that responsibility.” Or, as Holder put it yesterday: “The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history” and therefore “the president is [not] required to get permission from a federal court.” One cannot reject the Bush legal worldview invoked to justify those programs while embracing the Obama worldview expressed here — at least not with an iota of intellectual coherence or dignity.
(5) The dubious or outright deceitful legal claims made by Holder are too numerous to chronicle all of them, but there are a couple worth highlighting. He said, for instance, that “the Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.” That part is true: in the 2004 case of Hamdi v. Rumsfeld, the Supreme Court rejected the Bush administration’s argument that it could detain American citizens accused of Terrorism without any process for them to contest the accusations against them, though the Court held that something less than a full-scale trial could satisfy the Due Process clause. But as Marcy Wheeler points out, the Court imposed “due process” requirements that are the exact opposite of what the Obama administration is doing with its assassinations. Said the Court (emphasis added):
It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. . . .
We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. . . .
In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.
How can Eric Holder possibly cite the Supreme Court’s Due Process holdings in the War on Terror context when the Court has held that citizens — merely to be detained, let alone killed — are entitled to exactly that which the Obama administration refuses to provide: “a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker” and “a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator”? It’s precisely because Obama refuses to fulfill those Court-imposed obligations before ordering citizens executed that this behavior is so objectionable.
If, as Holder argues, the Due Process Clause allows a citizen to be killed based on accusations by the President that are made in total secrecy and which he has no opportunity even to hear, let alone refute, then that core Constitutional safeguard is completely meaningless. And the Supreme Court in the very ruling Holder references leaves no doubt about that, as it required an adversarial hearing before a neutral arbiter even for someone accused of being an “enemy combatant” at the height of the War on Terror.
Then there is Holder’s reliance on the old neocon trick: cite what Lincoln did in the Civil War or what FDR did in World War II — as though those are comparable to the War on Terror — to justify what is being done now. Thus we hear this from Holder: “during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto — the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board.” This argument has been hauled out before by administration officials when responding to my critiques of Obama’s assassination program.
Even leaving aside the vast difference between wars posing an existential threat (the Civil War, WW2) and the so-called War on Terror, the difference between the Yamamoto killing and Obama’s citizen assassinations is self-evident. There was no doubt that Adm. Yamamoto was in fact a commander of an enemy army at war with the U.S.: he wore that army’s uniform and identified himself as such. By contrast, there is substantial doubt whether Anwar Awlaki or other accused Al Qaeda members are in fact guilty of plotting Terrorist attacks on the U.S. That’s true for exactly the reason that Holder, in another part of his speech, explained: Al Qaeda members “do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack.”
That’s why applying traditional war doctrine to accused Terrorists (who are not found on a battlefield but in their cars, their homes, at work, etc.) is so inappropriate, and why judicial review is so urgent: because the risk of false accusations is so much higher than it is when capturing uniformed soldiers on an actual battlefield. Just recall how dubious so many government accusations of Terrorism turned out to be once federal courts began scrutinizing those accusations for evidentiary support. Indeed, Yemen experts such as Gregory Johnsen have repeatedly pointed out in response to claims that Awlaki plotted Terrorist attacks: “we know very little, precious little when it comes to his operational role” and “we just don’t know this, we suspect it but don’t know it.” Given this shameful record in the War on Terror, what rational person would “trust” the Government to make determinations about who is and is not a Terrorist in the dark, with no limits or checks on what they can do?
(6) Holder’s attempt to justify these assassinations on the ground that “capture is not feasible” achieves nothing. For one, the U.S. never even bothered to indict Awlaki so that he could voluntarily turn himself in or answer the charges (though at one point, long after they first ordered him killed, they “considered” indicting him); instead, they simply killed him without demonstrating there was any evidence to support these accusations. What justifies that? Additionally, the fact that the Government is unable to apprehend and try a criminal does not justify his murder; absent some violent resistance upon capture, the government is not free to simply go around murdering fugitives who have been convicted of nothing. Moreover, that Awlaki could not have been captured in a country where the government is little more than an American client is dubious at best; if the U.S. could locate and enter the home of Osama bin Laden without the cooperation of the Pakistani government, why could it not do the same for Awlaki in Yemen?
But the most important point is that Holder is not confining this assassination power to circumstances where “capture is not feasible.” To the contrary, he specifically said that killing “would be lawful at least in the following circumstances”: meaning that the President’s asserted power is not confined to those conditions. As Charlie Savage wrote: “Significantly, Mr. Holder did not say that such a situation is the only kind in which it would be lawful to kill a citizen. Rather, he said it would be lawful ‘at least’ under those conditions.” We have no idea how far the Obama administration believes its assassination power extends because it refuses to release the legal memorandum justifying it; there is no legal framework governing it; and there is no transparency or accountability for the President’s execution orders.
* * * * *
In sum, Holder’s attempt to make this all seem normal and common should insult anyone with the most basic understanding of American law. As The New York Times put it when first confirming the assassination program in April, 2010: ” The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen. . . . It is extremely rare, if not unprecedented, for an American to be approved for targeted killing, officials said. A former senior legal official in the administration of George W. Bush said he did not know of any American who was approved for targeted killing under the former president.” To date, not a single such citizen has been identified.
As always, the most important point to note for this entire debate is how perverse and warped it is that we’re even having this “debate” at all. It should be self-negating — self-marginalizing — to assert that the President, acting with no checks or transparency, can order American citizens executed far from any battlefield and without any opportunity even to know about, let alone rebut, the accusations. That this policy is being implemented and defended by the very same political party that spent the last decade so vocally and opportunistically objecting to far less extreme powers makes it all the more repellent. That fact also makes it all the more dangerous, because — as one can see — the fact that it is a Democratic President doing it, and Democratic Party officials justifying it, means that it’s much easier to normalize: very few of the Party’s followers, especially in an election year, are willing to make much of a fuss about it at all.
And thus will presidential assassination powers be entrenched as bipartisan consensus for at least a generation. That will undoubtedly be one of the most significant aspects of the Obama legacy. Let no Democrat who is now supportive or even silent be heard to object when the next Republican President exercises this power in ways that they dislike.
ACLU sues Obama administration over assassination secrecy February 2, 2012Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Human Rights, War on Terror.
Tags: Abdulrahman al-Awlaki, aclu, al-Qaeda, anwar aslaki, drone missiles, foia, glenn greenwald, jameel jaffer, jay carney, leon panetta, national security, Obama, presidential assassination, rendition, rule of law, samir khan, state secrets, terrorists, torture, transparency
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Roger’s note: Here is a breath of fresh air for Tricky Dick Nixon as he boils in Hell . His infamous “if the president does it it’s legal,” thanks to Bush and Obama, is now the law of the land.
The President boasts in public about his executions, then hides behind secrecy claims to shield it from the law
President Barack Obama walks to Marine One on the South Lawn of the White House in Washington, Wednesday, Jan. 25, 2012. (AP Photo/Evan Vucci) (Credit: AP)
The ACLU yesterday filed a lawsuit against various agencies of the Obama administration — the Justice and Defense Departments and the CIA — over their refusal to disclose any information about the assassination of American citizens. In October, the ACLU filed a FOIA request demanding disclosure of the most basic information about the CIA’s killing of 3 American citizens in Yemen: Anwar Awlaki and Samir Khan, killed by missiles fired by a U.S. drone in September, and Awlaki’s 16-year-old son, Abdulrahman, killed by another drone attack two weeks later.
The ACLU’s FOIA request sought merely to learn the legal and factual basis for these killings — meaning: tell us what legal theories you’ve adopted to secretly target U.S. citizens for execution, and what factual basis did you have to launch these specific strikes? The DOJ and CIA responded not only by refusing to provide any of this information, but refused even to confirm if any of the requested documents exist; in other words, as the ACLU put it yesterday, “these agencies are saying the targeted killing program is so secret that they can’t even acknowledge that it exists.” That refusal is what prompted yesterday’s lawsuit (in December, the New York Times also sued the Obama administration after it failed to produce DOJ legal memoranda “justifying” the assassination program in response to a FOIA request from reporters Charlie Savage and Scott Shane, but the ACLU’s lawsuit seeks disclosure of both the legal and factual bases for these executions).
From a certain perspective, there’s really only one point worth making about all of this: if you think about it, it is warped beyond belief that the ACLU has to sue the U.S. Government in order to force it to disclose its claimed legal and factual bases for assassinating U.S. citizens without charges, trial or due process of any kind. It’s extraordinary enough that the Obama administration is secretly targeting citizens for execution-by-CIA; that they refuse even to account for what they are doing — even to the point of refusing to disclose their legal reasoning as to why they think the President possesses this power — is just mind-boggling. Truly: what more tyrannical power is there than for a government to target its own citizens for death — in total secrecy and with no checks — and then insist on the right to do so without even having to explain its legal and factual rationale for what it is doing? Could you even imagine what the U.S. Government and its media supporters would be saying about any other non-client-state country that asserted and exercised this power?
But there’s one abuse that deserves special attention here: namely, the way in which the Obama administration manipulates and exploits its secrecy powers. Here is what the DOJ said to the ACLU about why it will not merely withhold all records, but will refuse even to confirm or deny whether any such records exist:
So the Most Transparent Administration Ever™ refuses even to confirm or deny if there is an assassination program, or if it played any role in the execution of these three Americans, because even that most elementary information is classified.
What makes this assertion so inexcusable — beyond its inherently and self-evidently anti-democratic nature — is that the Obama administration constantly boasts in public about this very same program when doing so is politically beneficial for the President. The day Awlaki was killed, the President himself began a White House ceremony by announcing Awlaki’s death, trumpeting it as “a major blow to al Qaeda’s most active operational affiliate,” boasting that “the death of al-Awlaki marks another significant milestone in the broader effort to defeat al Qaeda and its affiliate,” and then patting himself on the back one last time: “this success is a tribute to our intelligence community.” Here’s how Obama hailed himself for the Awlaki killing on The Tonight Show with Jay Leno:
THE PRESIDENT: But al Qaeda is weaker than anytime in recent memory. We have taken out their top leadership position. That’s been a big accomplishment.
JAY LENO: Can I ask you about taking out their top leadership, al-Awlaki, this guy, American-born terrorist? How important was he to al Qaeda?
THE PRESIDENT: Do you — what happened was we put so much pressure on al Qaeda in the Afghan/Pakistan region –
JAY LENO: Right.
THE PRESIDENT: — that their affiliates were actually becoming more of a threat to the United States. So Awlaki was their head of external operations. This is the guy that inspired and helped to facilitate the Christmas Day bomber. This is a guy who was actively planning a whole range of operations here in the homeland and was focused on the homeland. And so this was probably the most important al Qaeda threat that was out there after Bin Laden was taken out, and it was important that working with the enemies, we were able to remove him from the field.
Earlier this week, Defense Secretary Leon Panetta went on 60 Minutes and described the process by which U.S. citizens are targeted for assassination: “the President of the United States has to sign off and he should.” Obama officials have repeatedly gone to the media anonymously to make claims about Awlaki’s guilt and to justify their assassination program. Here is one “senior administration lawyer” — cowardly hiding behind anonymity — responding to my criticisms and justifying the assassination program to Benjamin Wittes (who naturally protected him from being identified). When I spoke at an NYU Law School event in 2010 and criticized what was then the Awlaki assassination attempt while sitting next to FBI Counter-Terrorism official Niall Brennan, NPR’s national security reporter, Dina Temple-Raston, stood up and revealed that Obama officials had secretly shown her snippets of evidence to demonstrate that Awlaki was involved in actual Terrorist plots.
So Obama can go on TV shows and trigger applause for himself by boasting of the Awlaki killing. He can publicly accuse Awlaki of all sorts of crimes for which there has been no evidence presented. He can dispatch his aides to anonymously brag in newspapers about all the secret evidence showing Awlaki’s guilt and showing how resolute and tough the President is for ordering him executed. Justice Department and Pentagon officials scamper around in the dark flashing snippets of evidence about Awlaki to reporters like Temple-Raston so that they dutifully march forward to defend the government’s assassination program. Obama officials will anonymously insist in public that they have legal authority to target citizens for killing without trial.
But when it comes time to account in a court or under the law for the legal authority and factual basis for what they have done — in other words, when it comes time to demonstrate that they are actually acting legally when doing it — then, suddenly, everything changes. When they face the rule of law, then the program is so profoundly classified that it cannot be spoken of at all — indeed, the administration cannot even confirm or deny that it exists — and it therefore cannot be scrutinized by courts at all.
Worse, they not only invoke these secrecy claims to avoid the ACLU and NYT‘s FOIA requests, but they also invoked it when Awlaki’s father sued them and asked a court to prevent President Obama from executing his son without a trial. When forced to justify their assassination program in court, the Obama DOJ insisted that the program was so secretive that it could not even safely confirm that it existed — it’s a state secret – and thus no court could or should review its legality (see p.43 of the DOJ’s brief and Panetta’s Affidavit in the Awlaki lawsuit). As the ACLU said yesterday:
The government’s self-serving attitude toward transparency and disclosure is unacceptable. Officials cannot be allowed to release bits of information about the targeted killing program when they think it will bolster their position, but refuse even to confirm the existence of a targeted killing program when organizations like the ACLU or journalists file FOIA requests in the service of real transparency and accountability.
This selective, manipulative abuse of secrecy reveals its true purpose. It has nothing to do with protecting national security; that’s proven by the Obama administration’s eagerness to boast about the program publicly and to glorify it when it helps the President politically. The secrecy instead has everything to do with (1) preventing facts that would be politically harmful from being revealed to the American public, and (2) shielding the President’s conduct from judicial review. And this cynical abuse of secrecy powers extends far beyond the Awlaki case; as the ACLU’s Jameel Jaffer wrote in an excellent LA Times Op-Ed last year: “where the state’s ostensible secrets are concerned, it has become common for government officials to tell courts one thing — nothing — and reporters another.”
This is the wretched game that both the Bush and Obama administrations have long been playing: boasting in public about their conduct but then invoking secrecy claims to shield it from true accountability or legal adjudication. Jaffer described the template this way:
After the New York Times disclosed the existence of the National Security Agency’s warrantless wiretapping program, the Bush administration officially acknowledged the program, described and defended it publicly, and made available to the press a 40-page report detailing the program’s supposed legal basis. Five months later, the administration sought to quash a constitutional challenge by arguing that the government couldn’t defend the program in court without disclosing information that was simply too sensitive to disclose.
This is exactly the same model used by both the Bush and Obama DOJs to shield warrantless eavesdropping, rendition, torture, drones, civilian killings and a whole host of other crimes from judicial review, i.e., from the rule of law. Everyone knows that the U.S. Government is doing these things. They are discussed openly all over the world. The damage they do and the victims they leave behind make it impossible to conceal them. Often, they are the subject of judicial proceedings in other countries. Typically, U.S. officials will speak about them and justify and even glorify them to American media outlets anonymously.
There’s only one place in the world where these programs cannot be discussed: in American courts. That’s because, when it comes time to have real disclosure and adversarial checks — rather than one-sided, selective, unverifiable disclosure — and when it comes time to determine if government officials are breaking the law, the administration ludicrously claims that it is too dangerous even to confirm if such a program exists (and disgracefully deferential federal courts in the post-9/11 era typically acquiesce to those claims). So here we have the nauseating spectacle of the Obama administration secretly targeting its own citizens for assassination, boasting in public about it in order to show how Tough and Strong the President is, but then hiding behind broad secrecy claims to shield their conduct from meaningful transparency, public debate, and legal review, all while pretending that they are motivated by lofty National Security Concerns when wielding these secrecy weapons. The only thing worse than the U.S. Government’s conduct of most affairs behind a wall of secrecy is how cynical, manipulative and self-protective is its invocation of these secrecy powers.
* * * * *
Next week, from February 6-11, I’ll be speaking at numerous events around the country regarding the state of civil liberties. I’ll be in New York, Indiana, Tennessee, Ohio and — to deliver the keynote address to the ACLU in Idaho’s annual dinner — in Boise, Idaho. All events are open to the public. Event information is here.
* * * * *
Whenever these issues are discussed, people often ask what can be done about them. There are no easy answers to that question, but supporting the ACLU is definitely one important act (as I noted many times, I previously consulted with the ACLU but have not done so for a couple of years). There are several excellent civil liberties groups in the U.S. worthy of support (CCR is one example), but the ACLU is constantly at the forefront in imposing at least some substantial barriers to the government’s always-escalating abuse of its powers, and, unlike most advocacy groups in the U.S., it defends its values and imposes checks without the slightest regard for which party controls the government (recall the 2010 statement of its Executive Director, Anthony Romero, about President Obama’s civil liberties record). One can become a member of the ACLU or otherwise support its genuinely vital work here.
UPDATE: A very similar game is being played with regard to the U.S.’s use of drones generally. For years, Obama officials have refused even to acknowledge that there is such a thing as a CIA drone program even though everyone knows there is. But this week, the President was asked during an Internet forum about his drone attacks and he made very specific claims about it in order to glorify and justify it. Nonetheless, as this Washington Post article notes, the administration still refuses to answer any questions about the drone program — or even acknowledge its existence — based on the claim that its very existence (which the President just discussed in public) is classified.
Illustrating the absurdity of the administration’s exploitation of secrecy powers, White House spokesman Jay Carney was asked yesterday whether President Obama broke the law by disclosing information about the classified drone program, and this is what Carney said:
White House spokesman Jay Carney rebuffed questions Tuesday about whether President Obama had violated intelligence restrictions on the secret U.S. drone program in Pakistan when he openly discussed the subject the day before. . . . Asked if the president had made a mistake, Carney said he was “not going to discuss . . . supposedly covert programs.”
He suggested that nothing Obama had said could be a security violation: “He’s the commander in chief of the armed forces of the United States. He’s the president of the United States.”
In other words, if the President discloses classified information, then it’s inherently legal, even if he does not declassify the information (a slight variation on President Nixon’s infamous if-the-President-does-it-then-it’s-legal decree). But this is exactly the opposite of what President Obama said when he publicly decreed Bradley Manning guilty: “If I was to release stuff, information that I’m not authorized to release, I’m breaking the law.” Clearly, that’s exactly what President Obama did when he discussed drones this week — and what he did before that by boasting of the classified Awlaki killing on The Tonight Show – but that’s the point: secrecy powers (like the law generally) is merely a weapon to protect and advance the interests of government officials. That’s why President Obama feels free to make whatever claims he wants about these programs to justify himself, but then turn around and tell courts that he cannot even acknowledge if they exist: that way, courts cannot examine their legality, and the public cannot learn anything about the programs that would enable them to verify the President’s assertions about them.
Glenn Greenwald (email: GGreenwald@salon.com) is a former Constitutional and civil rights litigator and is the author of two New York Times Bestselling books on the Bush administration’s executive power and foreign policy abuses. His just-released book, With Liberty and Justice for Some, is an indictment of America’s two-tiered system of justice, which vests political and financial elites with immunity even for egregious crimes while subjecting ordinary Americans to the world’s largest and most merciless penal state. Greenwald was named by The Atlantic as one of the 25 most influential political commentators in the nation. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, and is the winner of the 2010 Online Journalism Association Award for his investigative work on the arrest and oppressive detention of Bradley Manning.
Anwar al-Awlaki’s Extrajudicial Murder October 1, 2011Posted by rogerhollander in Civil Liberties, Criminal Justice, War.
Tags: aclu, Anwar al-Awlaki, civil liberties, Criminal Justice, drone missiles, due process, executive order, extrajudicial murder, fifth amendment, first amendment, International law, michael ratner, presidential power, roger hollander, rule of law, war on terror
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The law on the use of lethal force by executive order is specific. This assassination broke it – that creates a terrifying precedent
Is this the world we want? Where the president of the United States can place an American citizen, or anyone else for that matter, living outside a war zone on a targeted assassination list, and then have him murdered by drone strike.
This was the very result we at the Center for Constitutional Rights and the ACLU feared when we brought a case in US federal court on behalf of Anwar al-Awlaki’s father, hoping to prevent this targeted killing. We lost the case on procedural grounds, but the judge considered the implications of the practice as raising “serious questions”, asking:
“Can the executive order the assassination of a US citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organisation?”
Yes, Anwar al-Awlaki was a radical Muslim cleric. Yes, his language and speeches were incendiary. He may even have engaged in plots against the United States – but we do not know that because he was never indicted for a crime.
This profile should not have made him a target for a killing without due process and without any effort to capture, arrest and try him. The US government knew his location for purposes of a drone strike, so why was no effort made to arrest him in Yemen, a country that apparently was allied in the US efforts to track him down?
There are – or were – laws about the circumstances in which deadly force can be used, including against those who are bent on causing harm to the United States. Outside of a war zone, as Awlaki was, lethal force can only be employed in the narrowest and most extraordinary circumstances: when there is a concrete, specific and imminent threat of an attack; and even then, deadly force must be a last resort.
The claim, after the fact, by President Obama that Awlaki ”operationally directed efforts” to attack the United States was never presented to a court before he was placed on the “kill” list and is untested. Even if President Obama’s claim has some validity, unless Awlaki’s alleged terrorists actions were imminent and unless deadly force employed as a last resort, this killing constitutes murder.
We know the government makes mistakes, lots of them, in giving people a “terrorist” label. Hundreds of men were wrongfully detained at Guantánamo. Should this same government, or any government, be allowed to order people’s killing without due process?
The dire implications of this killing should not be lost on any of us. There appears to be no limit to the president’s power to kill anywhere in the world, even if it involves killing a citizen of his own country. Today, it’s in Yemen; tomorrow, it could be in the UK or even in the United States.
Obama’s Unprecedented Use of State Secrets to Defend Religious Profiling September 8, 2011Posted by rogerhollander in Civil Liberties, Criminal Justice, Racism, Religion, Uncategorized.
Tags: aclu, agent provocateur, asraa mustufa, black sites, civil liberties, eric holder, fbi agent, fbi spy, first amendment, muslim, muslim american, national security, nypd racism, obama administration, obama doj, racial profiling, racism, rendition, roger hollander, state secrets, torture, warrantless wiretapping
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Published on Thursday, September 8, 2011 by Colorlines
In the summer of 2006, a French Syrian man known as Farouk al-Aziz publicly converted to Islam in front of a Friday prayer congregation at a large mosque in Irvine, Calif. Mosque leadership and attendants were quick to embrace al-Aziz as a new member of their faith. The Islamic center’s imam asked a congregant to teach al-Aziz how to pray, and he quickly became a regular attendee at the mosque in Irvine and others in Orange County.
Photo: Kevork Djansezian/Getty Images
However, community members soon became wary of al-Aziz. He would often sit in on groups, listening to other Muslim congregants’ conversations within the mosque, at family picnics or at a local gym. Most troubling to other attendees was his frequent, unusual questions about a violent form of jihad. Community members say when al-Aziz began implying that he was contemplating violent action, boasting he knew where to get weapons and trying to gather people in a plot, congregants quickly brought the issue to the attention of mosque leadership. They obtained a restraining order against him and reached out to the local chapter of the Council on American-Islamic Relations, which helped them report al-Aziz’s actions to the FBI.
As it turned out, the FBI was already well aware of al-Aziz’s activities at the mosque—they had in fact sent him there. He was one of thousands of informants the FBI has used since 9/11 to spy upon Muslim American communities and concoct terrorism plots inside them. The practice has drawn attention from news media and civil liberties advocates in recent years, and Muslim American community leaders are organizing to demand its end. But one huge, unexpected hurdle now stands in the way: The Obama administration’s invocation of a national security provision that makes it impossible for communities and individuals to protect their rights through lawsuits.
The provision, known as the state secrets privilege, permits the government to block discovery in a lawsuit of any information that, if disclosed, could adversely affect national security or foreign relations. President Obama vowed while campaigning that he’d end its use. Instead, his administration has not only continued invoking it, but has done so in a previously unprecedented way in order to protect legally questionable surveillance of Muslim American communities.
President Obama’s Privileged Secrets
Al-Aziz’s name was actually Craig Monteilh, and he was a paid informant working for the FBI. Monteilh, who was profiled in a Mother Jones investigation into the FBI’s spying program this month, had worked with the bureau for several years. He fell out with the FBI after he was convicted of grand theft in 2007 and his role as an informant was revealed in court documents. Monteilh filed suit against the FBI and went public about his activities as an informant—including that he was instructed to infiltrate southern Californian mosques and spy on worshippers.
Earlier this year, Muslim community advocates responded with a lawsuit of their own. In Fazaga v. FBI, the American Civil Liberties Union of Southern California and the Los Angeles chapter of CAIR allege that by indiscriminately surveilling several southern Californian mosques and collecting information on hundreds, perhaps thousands, of law-abiding American Muslims, the FBI violated their constitutional rights. In addition to Monteilh’s reports of the instructions he received from the FBI, attorneys on the case say that the numerous accounts of Muslim community members who came in contact with Monteilh, as well as some FBI guidelines themselves, all strongly indicate that the FBI’s targeting of mosques was based on religion alone, rather than on following leads or indications of unlawful activity.
Last month, the Obama administration invoked the state secrets privilege in an effort to have the suit dismissed. In the filing, Attorney General Eric Holder said that the Justice Department cannot allow the case to be litigated, because it would lead to the disclosure of sensitive information, which could in turn “reasonably be expected to cause harm to national security.”
The Bush administration infamously expanded the use of the state secrets doctrine, frequently invoking it to have entire lawsuits dismissed, rather than employing it to have individual pieces of evidence excluded from court, as it had been used in the past. As a candidate, President Obama criticized his predecessor’s repeated use of the privilege “to get cases thrown out of civil court.” Since taking office, however, Obama’s Justice Department has done the exact same thing.
The Obama administration has continued to assert the state secrets privilege in lawsuits still pending from the Bush years, on cases involving warrantless wiretapping, detention, torture and rendition of terrorism suspects at CIA black sites. And the administration has been successful in getting lawsuits dismissed on those grounds. The Obama Justice Department has also asserted the privilege in a lawsuit over the government’s right to target and kill suspected terrorists, including U.S. citizens, outside a war zone and absent an imminent threat to national security.
Both administrations’ use of the privilege to cover up questionable government behavior is not unprecedented. Indeed, in the landmark 1953 Supreme Court case United States v. Reynolds, the government invoked the state secrets privilege to circumvent the disclosure of an accident report in a wrongful death action involving the military. The court bought the government’s argument, but when the document was declassified in 2004, it was found to contain no sensitive information about national security whatsoever. Rather, it contained information proving government negligence.
The Obama administration’s invocation of the state secrets privilege, however, is unprecedented, transparency advocates assert. In previous and ongoing suits where the doctrine has been invoked, plaintiffs were seeking damages for a past violation of rights; the constitutional violations described in the Fazaga v. FBI are ongoing.
“The biggest difference is that here we have an ongoing constitutional violation against American citizens on American soil, and if courts can dismiss challenges to such ongoing violations on the grounds that…the program is secret, then that’s fundamentally inconsistent with very basic structural protections we have in our democratic function of government,” said Ahilan Arulanantham, deputy legal director of ACLU in southern California and a lead attorney on the case. “Our system virtually never allows the courthouse doors to be closed to an ongoing violation of the Constitution.”
Arulanantham also argues the government’s claim that sensitive national security information is at risk doesn’t hold up, given how widely reported Monteilh’s informant activities in “Operation Flex” have been. “There is nothing secret about the fact that the FBI was employing Craig Monteilh and that he surveiled hundreds or thousands of Muslims and gathered information on them.”
Since the lawsuit was filed, further evidence has emerged of similarly indiscriminate surveillance practices. When the northern California chapter of the ACLU and the Asian Law Caucus filed a Freedom of Information Act request about government surveillance of American Muslim communities, they obtained a PowerPoint presentation used by the FBI to train new recruits. The presentation included estimates of the number of mosques in America, and listed states with the largest Muslim populations. It also presented a troubling and simplistic depiction of Muslims and Arabs, and highlighted the work of career Islamophobe Robert Spencer in its recommended reading list.
NYPD Conducting Similar Surveillance
The FBI’s not the only agency snooping on Muslim Americans, though. Late last month, the Associated Press published an investigation on the New York Police Department’s covert surveillance of Muslims communities. The article, based on interviews with over 40 current and former NYPD and federal officials, detailed the aggressive practices of the agency’s domestic intelligence gathering operation. According to the AP’s findings, the NYPD, with much help from the CIA, used undercover officers to map and monitor Muslim-populated immigrant and black Muslim neighborhoods in and beyond the city, and dispatched informants to monitor sermons delivered at mosques and Muslim student groups, without any prior indication of unlawful behavior. The revelations came as little surprise to Muslim civil liberties groups, as such activities by the NYPD have long been widely reported by community members and documented by advocates, as well as by official testimony.
“There was already a picture being painted of the way this program was playing out in local communities. What we didn’t know and was the most troubling about the report was how deep and how normalized this program has become,” said Cyrus McGoldrick, civil rights manager at the New York chapter of CAIR.
Earlier this year, the Village Voice found that the NYPD had also screened the anti-Islamic hate film “The Third Jihad”—which describes Islam as a threat to the U.S. and was made by the Clarion Fund—at a mandatory counter-terrorism course for officers.
McGoldrick said civil liberties advocates are demanding a federal investigation of the CIA’s involvement as well as investigations by local officials. The NYPD maintains that the CIA’s role in the surveillance is merely advisory.
Community organizations are also trying to equip Muslim Americans with resources to protect themselves from the police department’s profiling. The group Desis Rising Up & Moving (DRUM), which works with low-income South Asian and Muslim immigrants in New York City, is planning a citywide survey to collect information on law enforcement interactions with the Muslim community.
Meanwhile, advocates warn that the all of this surveillance has created a sense of mistrust within communities. “People don’t speak freely anymore, people don’t feel comfortable engaging in candid conversations,” said Ameena Mirza Qazi, deputy executive director of CAIR’s L.A. chapter and an attorney for the plaintiff in the Fazaga lawsuit.
“The mosque is a building, but it’s about the community,” Qazi said. “To have the government come and disrupt that, that’s a very clear violation of our First Amendment freedom to practice our religion as we wish.”
A Wrong Headed Approach?
Aside from being predatory and potentially illegal, unwarranted surveillance is self-defeating, Muslim leaders say.
“This isn’t a program that makes us safer. This is a program that is investigating communities and not crimes,” McGoldrick said about the NYPD’s infiltration of Muslim communities via informants. “Instead of stopping crimes, they’re manufacturing crimes and they’re creating the images of crimes, and really just alienating an entire community that’s been nothing but supportive and has been at the lead of policing our own communities since 9/11 and before.”
Qazi had similar sentiments about how these revelations affect Muslim communities’ relationship with law enforcement. “If you’re treating us as suspects, how can we trust that you’ll treat us as partners?” she said, also pointing out that Muslims in southern California immediately alerted authorities when Monteilh began speaking about violent activity. “His role as an agent provocateur didn’t last very long because he was cut short by Muslim community members themselves.”
Yet, techniques like unwarranted surveillance, highly paid informants and questionable sting operations draw huge amounts of funding for the FBI and NYPD. According to Mother Jones, the FBI’s counter-terrorism budget stands at $3.3 billion, and as a whole, the agency spends more on hunting potential threats to national security than on chasing “ordinary criminals,” the New York Times recently found. The AP reports that the NYPD has received more than $1.6 billion from the federal government since 9/11, with little oversight from external authorities.
In counterterrorism, law enforcement relies heavily on informants, some recruited from Muslim communities under the pressure of threatened immigration troubles or past criminal infractions, as the targets of informants account for roughly half of defendants in domestic terror prosecutions to date, Mother Jones’ investigation found. Some advocates question whether the agencies are more interested in using funds to produce terrorism arrests and convictions than on addressing an existing national security threat.
“There is incredible pressure on law enforcement to prevent attacks…if you are able to lead somebody into a plot, you then have a success. You have made a counter terrorism case, you made an arrest, and you will most likely get a conviction, and all of that plays into how funds are allocated and how different agencies are perceived,” said Faiza Patel, the co-director of the Liberty and National Security Program at the Brennan Center for Justice.
Patel has written widely on the theory of “radicalization” embraced by different law enforcement agencies (and some politicians), a main aspect of which includes an understanding that certain interpretations or expressions of Islam consistently lead to acts of violence. Such thinking is espoused in a 2007 report the NYPD published on homegrown terrorism, which listed signs of “radicalization” such as regular attendance at mosques, giving up cigarettes, drinking gambling, and the wearing of “urban hip-hop gangster clothes,” or wearing Islamic clothing, growing a beard and even becoming involved in social activism.
“If you think there’s this religious conveyer belt leading to terrorism, then you think it’s useful to see what people are saying and doing in their practice of religion, and that leads you into surveillance of mosques and bookstores and community centers,” Patel said.
The NYPD report might point to a more fundamental problem underlying law enforcement’s treatment of Muslim communities: The view of basic practices of the Islamic faith, including congregation, as indications of potential danger undermines the standing of American Muslims as a group deserving the same social protections as everybody else.
“Look, we’ve had a consensus I think in this country that racial profiling is wrong,” Patel said. “What we don’t somehow seem to have a consensus about is whether or not that rule applies to national security cases, and whether or not that rule applies to things such as religion or ethnicity.”
Asraa Mustufa is a regular contributor to Colorlines.com and a research intern at the Applied Research Center, which publishes Colorlines.