US Special Operations Command Trained Military Unit Accused of Death Squad Killings in Honduras March 1, 2013Posted by rogerhollander in Foreign Policy, Honduras, Latin America.
Tags: annie bird, assassination, campesinos, central america, death squads, honduran military, Honduras, human rights, indigenous, indigenous massacre, indigenous rights, Latin America, military, roger hollander
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This article is based entirely on the report “Human Rights Violations Attributed to Military Forces in the Bajo Aguan Valley in Honduras” published on February 20, 2013. To see the full report with citations:
Since January 2010, there has been a constant stream of killings of members of land rights, campesino movements in the Bajo Aguan region of Honduras. At least 88 campesino movement members and supporters have been killed, along with five bystanders apparently mistaken for campesinos. Most recently, on Feb. 16 two campesinos were killed–Santos Jacobo Cartagena was gunned down while waiting for a bus, and Jose Trejo, an outspoken advocate for the investigation of his brother’s Sept. 22, 2012 murder, was shot while driving.
While the 2010 and 2011 State Department human rights reports described deaths of campesinos in the Aguan as the result of “confrontations” between palm oil corporation’s security forces and campesino farmers who claim the land was stolen by the agri-businessmen, only six of the killings have occurred on disputed land during land occupations or evictions. In contrast, 78 were targeted assassinations, 8 of those preceded by abductions, their tortured bodies found later; another 3 victims remain disappeared. Fifty-three people were shot while driving, riding their bicycles or walking along public roads. Another 13 were assassinated in their homes or while working on farms not in dispute.
All of this points to one explanation: a death squad is operating in the Aguan. This is not news to anyone who lives there, where it is considered common knowledge and it is widely understood that police and military participate in the killings. Dozens of acts of violence and intimidation have been carried out by the Honduran military against campesino communities over the same time period and geographical area where the death-squad killings have targeted campesinos, lending greater credibility to the charge.
Local residents and national press have reported the presence of U.S. Army Rangers in the area since at least 2008, and public records of the U.S. government confirm their presence. In 2008, SOCSOUTH conducted two trainings with 135 soldiers each, all from the 1st Special Forces Battalion. The Honduran press has reported that the 1st Battalion and 15th Battalion, both special-forces units, operate as one command, sharing the installations in the Rio Claro military base for training. SOCSOUTH and the U.S.Southern Command, SOUTHCOM, have also funded improvements and expansion of the Rio Claro base since September 2011.
One disturbing observation that resulted from our investigation is that conditions surrounding many of the killings involved techniques included in U.S. training. According to Honduran press, U.S. special forces train the Honduran Special Operations Forces of the 1st and 15th Battalion in insertion, parachuting, explosives, long-distance sharpshooting, intelligence, advanced marksmanship, urban operations, close combat, martial arts and offensive driving. Dozens of campesinos have died after high-speed pursuit in vehicles, either after crashing or being shot, in incidents that can only be described as offensive driving.
Campesinos have reported surviving long-distance sharpshooting assassination attempts, and many have been killed from shots fired from a significant distance. One man was found dead from unexplained internal injuries while it was rumored that the unit was being trained in mortal hand-to-hand combat, raising suspicions. At least one man was killed in a stealth raid assisted by a helicopter, in which an armed group wearing black uniforms with masks quickly and surreptitiously entered a farm in the night, assassinated a campesino, and left–an operation known in military terms as “insertion”.
The improvements to the Rio Claro military base began just weeks after Xatruch II, a military–police joint task force, arrived in the Aguan. Honduras sent a Xatruch II unit to participate in Operation Iraqi Freedom in 2004, and at least two of the commanding officers of the Xatruch II deployment in the Aguan participated in Iraq. There is significant evidence that the Xatruch II operation in the Aguan is the same unit that served in Iraq.
From Iraq to Aguan
But Xatruch II is not all that is moving from the Middle East to the Aguan–so is the war on terrorism. The conflict in the Aguan is an 18 year-old land dispute. Campesinos explain that agri-businessmen used violence and fraud to illegally separate them from the palm oil plantations they had labored to create and equip. In 1998 they initiated lawsuits demanding annulment of the title transfers, but ever since they have struggled to maintain legal representation as their lawyers were threatened or bribed into abandoning the cases. On September 22, 2012 they lost the only lawyer who had stuck it out when he was shot to death outside a church. Just three months before, he had won the annulment of 3 of the 28 disputed title transfers.
Honduran military, even the commander of the Joint Chiefs of Staff and the Secretary of Security, have consistently distorted the nature of the conflict, claiming there is a guerrilla group operating in the area, connected to drug traffickers. On Sept. 6, 2012, The Times of Israel ran a story citing only Israeli radio, claiming the Hezbollah had established a training camp in Nicaragua on the border with Honduras, a story that was then repeated in Latin American press. The Times of Israel then reported further on the story citing the Latin American press reports it had generated itself. The dangerous, unsubstantiated and opportunistic accusations of narco-terrorism levied against the campesino movement in the Aguan by the military fit neatly into the U.S. objective of expanding its military reach in the region.
Security forces in the Aguan explain that the mission of Xatruch II is to defend the land of the businessmen from the “criminal’ campesinos. However, broad evidence indicates that some of the businessmen in conflict with the campesinos are involved in drug trafficking in the region. Local residents have reported that the 15th Battalion and the Tocoa police have provided protection to the traffickers. The police define their mission as defending the property of Miguel Facusse, whose principal residence in the region was implicated in drug trafficking,according to a State Department cable leaked by Wikileaks.
The conflict in the Aguan is a longstanding land conflict, and it must be treated as such. The conflict can be resolved by duly addressing the land-rights claims. Militarization, supported by the U.S. government, will not resolve the underlying conflict and it clearly increases, rather than decreases, the bloodshed.
Only the courts can resolve the conflict, but the courts don’t function and have further collapsed since the June 2009 military coup.
There is a solution to the violence in the Aguan–the courts, not the military.
Crossposted at cipamericas.org
Annie Bird, a Central America & Latin America human rights activist. She is co-director for rightsaction.org & a writer for cipamericas.org’s Americas Program.
Brennan and Kiriakou, Drones and Torture February 6, 2013Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, George W. Bush, Human Rights, Torture, War on Terror.
Tags: Abdulrahman al-Awlaki, Abu Zubaydah, amy goodman, Anwar al-Awlak, assassination, Democracy Now, denis moynihan, hit list, indefinite detention, john brennan, john kiriakou, lawrence wilkerson, roger hollander, torture, war on terror, waterboarding
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Posted on Feb 6, 2013, http://www.truthdig.com
By Amy Goodman
John Brennan and John Kiriakou worked together years ago, but their careers have dramatically diverged. Brennan is now on track to head the CIA, while Kiriakou is headed off to prison. Each of their fates is tied to the so-called war on terror, which under President George W. Bush provoked worldwide condemnation. President Barack Obama rebranded the war on terror innocuously as “overseas contingency operations,” but, rather than retrench from the odious practices of his predecessor, Obama instead escalated. His promotion of Brennan, and his prosecution of Kiriakou, demonstrate how the recent excesses of U.S. presidential power are not transient aberrations, but the creation of a frightening new normal, where drone strikes, warrantless surveillance, assassination and indefinite detention are conducted with arrogance and impunity, shielded by secrecy and beyond the reach of law.
John Kiriakou spent 14 years at the CIA as an analyst and a case officer. In 2002, he led the team that found Abu Zubaydah, alleged to be a high-ranking member of al-Qaida. Kiriakou was the first to publicly confirm the use of waterboarding by the CIA, in a 2007 interview with ABC’s Brian Ross. He told Ross: “At the time, I felt that waterboarding was something that we needed to do. … I think I’ve changed my mind, and I think that waterboarding is probably something that we shouldn’t be in the business of doing.” Kiriakou says he found the “enhanced interrogation techniques” immoral, and declined to be trained to use them.
Since the interview, it has become known that Zubaydah was waterboarded at least 83 times, and that he provided no useful information as a result. He remains imprisoned at Guantanamo Bay, without charge. Kiriakou will soon start serving his 30-month prison sentence, but not for disclosing anything about waterboarding. He pled guilty to disclosing the name of a former CIA interrogator to a journalist, with information that the interrogator himself had posted to a publicly available website.
Meanwhile, John Brennan, longtime counterterrorism advisor to Obama, is expected to receive Senate confirmation as the new director of central intelligence. I recently asked Kiriakou what he thought of Brennan:
“I’ve known John Brennan since 1990. I worked directly for John Brennan twice. I think that he is a terrible choice to lead the CIA. I think that it’s time for the CIA to move beyond the ugliness of the post-September 11th regime, and we need someone who is going to respect the Constitution and to not be bogged down by a legacy of torture. I think that President Obama’s appointment of John Brennan sends the wrong message to all Americans.”
Obama has once already considered Brennan for the top CIA job, back in 2008. Brennan withdrew his nomination then under a hail of criticism for supporting the Bush-era torture policies in his various top-level intelligence positions, including head of the National Counterterrorism Center.
What a difference four years makes. With the killing of Osama bin Laden notched in his belt, Obama seems immune from counterterror criticism. John Brennan is said to manage the notorious “kill list” of people that Obama believes he has the right to kill anytime, anywhere on the planet, as part of his “overseas contingency operations.” This includes the killing of U.S. citizens, without any charge, trial or due process whatsoever. Drone strikes are one way these assassinations are carried out. U.S. citizen Anwar al-Awlaki was killed in Yemen by a drone strike, then, two weeks later, his 16-year-old son, Abdulrahman al-Awlaki, was killed the same way.
I asked Col. Lawrence Wilkerson, who served as chief of staff to Secretary of State Colin Powell from 2002 to 2005, what he thought of Brennan. He told me: “What’s happening with drone strikes around the world right now is, in my opinion, as bad a development as many of the things we now condemn so readily, with 20/20 hindsight, in the George W. Bush administration. We are creating more enemies than we’re killing. We are doing things that violate international law. We are even killing American citizens without due process and have an attorney general who has said that due process does not necessarily include the legal process. Those are really scary words.”
While Kiriakou goes to prison for revealing a name, the U.K.-based Bureau of Investigative Journalism is launching a project called “Naming the Dead,” hoping “to identify as many as possible of those killed in U.S. covert drone strikes in Pakistan, whether civilian or militant.” The BIJ reports a “minimum 2,629 people who appear to have so far died in CIA drone strikes in Pakistan.” John Brennan should be asked about each of them.
Denis Moynihan contributed research to this column.
Amy Goodman is the host of “Democracy Now!,” a daily international TV/radio news hour airing on more than 1,000 stations in North America. She is the co-author of “The Silenced Majority,” a New York Times best-seller.
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.
Was Yasser Arafat Assassinated? July 5, 2012Posted by rogerhollander in Israel, Gaza & Middle East.
Tags: ariel sharon, assassination, cesar chelala, israel, Palestine, plo, roger hollander, uri dan, yasser arafat
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For at least two years before Yasser Arafat’s death in 2004, Uri Avnery, a leading Israeli peace activist, had been warning of the possibility that the Palestinian leader could be assassinated and on the negative effect this would have on the peace process. Now, an investigation carried out by Al Jazeera reveals that Arafat’s final personal belongings had abnormal levels of polonium, a rare, highly radioactive element, and that this was probably the cause of his death.Former PLO leader Yasser Arafat.
“While I am writing this, Yasser Arafat is still alive,” Avnery wrote in 2002 for the Media Monitors Network. “But his life is hanging on a thread. When we visited him in his bombed out Mukata’a compound in Ramallah, I warned him that Sharon is determined to kill him… Now Sharon believes that he can achieve his aim. He needs only Bush’s approval. Not necessarily a formal confirmation. A subtle hint will suffice. Half a word. A wink.” Future findings and events have potentially proved him correct.
In 2006, Uri Dan, who had been Sharon’s longtime confidant, published a book in France entitled “Ariel Sharon: An Intimate Portrait.” The book accuses the former Prime Minister of Israel of assassinating Palestinian Authority (PA) President Yasser Arafat by poisoning him. According to Uri Dan, Sharon got President George W. Bush’s approval to proceed with his assassination plan in 2004. At the time, Sharon told President Bush that he was no longer committed to “not” liquidating the Palestinian leader.
Writing for Global Research in 2007, Stephen Lendman, a recipient of a 2008 Project Censored Award from the University of California at Sonoma, stated that Dr. Ashraf Al Kurdi, Arafat’s personal physician for 25 years, believed that Arafat had been poisoned. When Dr. Al Kurdi saw Arafat before he was taken to Paris, where he died on November 11, 2004, he saw a man who had los half of his body weight, had red patches on his face and a metallic yellow color all over his body.
Arafat’s French doctors were unusually evasive about the cause(s) of his death. They described a very serious disorder called “Disseminated intravascular coagulation,” (DIC) a pathological activation of the blood clotting mechanism that happens in response to a variety of diseases. It leads to the formation of small clots inside the blood vessels in the body, resulting in the disruption of normal blood flow to critical organs such as the kidneys.
DIC can occur in an acute way or chronically as a result of multiple organ failure leading to death. There are no effective treatment options. An interpretation of its acronym “death is coming” probably refers to this circumstance and to the high mortality associated with this condition. Arafat’s French doctors refused to acknowledge the underlying cause of Arafat’s death. Dr. Francois Bochud, director of the Institut de Radiophysique in Lausanne, Swizerland, where the analysis of Arafat’s clothes took place confirmed that unexplained, high amounts of polonium-210 had been found in his belongings.
Arafat has not been the only political figure apparently killed by radioactive polonium. The most notorious victim was Alexander Litvinenko, a Russian spy who later became a dissident and who died in London of a lingering illness. An inquiry conducted by British intelligence later proved that he had been poisoned with polonium slipped into his tea.
There are so few recorded cases similar to these, however, that there is still no consensus about the typical symptoms. However, both Litvinenko and Arafat suffered from severe diarrhea, weight loss and vomiting in the days and weeks previous to their deaths. An American study conducted in 1991 found that the poison probably acts by activating the “vomiting center” in the brainstem.
Uri Avnery’s writing in 2002 was premonitory. “The murder of Arafat is the murder of all chances for peace. That is a crime against the Israeli people. It will condemn us to making war for decades, perhaps for generations to come, perhaps forever. The moral, social and economic decline that we are experiencing now everywhere in Israel will drag Israel down to new depths and to the emigration of many.” So far, events have proven him right.
The due-process-free assassination of U.S. citizens is now reality September 30, 2011Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, War on Terror.
Tags: al-Qaeda, Anwar al-Awlaki, assassination, civil liberties, due process, due process of law, fifth amendment, first amendment, glenn greenwald, president saleh, presidential killing, roger hollander, state secrets, targeted killing, war on terrorr, yemen
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Friday, Sep 30, 2011 06:31 ET
It was first reported in January of last year that the Obama administration had compiled a hit list of American citizens whom the President had ordered assassinated without any due process, and one of those Americans was Anwar al-awlaki . No effort was made to indict him for any crimes (despite a report last October that the Obama administration was “considering” indicting him). Despite substantial doubt among Yemen experts about whether he even has any operational role in Al Qaeda, no evidence (as opposed to unverified government accusations) was presented of his guilt. When Awlaki’s father sought a court order barring Obama from killing his son, the DOJ argued, among other things, that such decisions were “state secrets” and thus beyond the scrutiny of the courts. He was simply ordered killed by the President: his judge, jury and executioner. When Awlaki’s inclusion on President Obama’s hit list was confirmed, The New York Times noted that “it is extremely rare, if not unprecedented, for an American to be approved for targeted killing.”
After several unsuccessful efforts to assassinate its own citizen, the U.S. succeeded today (and it was the U.S.). It almost certainly was able to find and kill Awlaki with the help of its long-time close friend President Saleh, who took a little time off from murdering his own citizens to help the U.S. murder its. The U.S. thus transformed someone who was, at best, a marginal figure into a martyr, and again showed its true face to the world. The government and media search for The Next bin Laden has undoubtedly already commenced.
What’s most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar (“No person shall be deprived of life without due process of law”), and did so in a way that almost certainly violates core First Amendment protections (questions that will now never be decided in a court of law). What’s most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government’s new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government. Many will celebrate the strong, decisive, Tough President’s ability to eradicate the life of Anwar al-Awlaki — including many who just so righteously condemned those Republican audience members as so terribly barbaric and crass for cheering Governor Perry’s execution of scores of serial murderers and rapists — criminals who were at least given a trial and appeals and the other trappings of due process before being killed.
From an authoritarian perspective, that’s the genius of America’s political culture. It not only finds way to obliterate the most basic individual liberties designed to safeguard citizens from consummate abuses of power (such as extinguishing the lives of citizens without due process). It actually gets its citizens to stand up and clap and even celebrate the destruction of those safeguards.
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UPDATE: What amazes me most whenever I write about this topic is recalling how terribly upset so many Democrats pretended to be when Bush claimed the power merely to detain or even just eavesdrop on American citizens without due process. Remember all that? Yet now, here’s Obama claiming the power not to detain or eavesdrop on citizens without due process, but to kill them; marvel at how the hardest-core White House loyalists now celebrate this and uncritically accept the same justifying rationale used by Bush/Cheney (this is war! the President says he was a Terrorist!) without even a moment of acknowledgment of the profound inconsistency or the deeply troubling implications of having a President — even Barack Obama — vested with the power to target U.S. citizens for murder with no due process.
Also, during the Bush years, civil libertarians who tried to convince conservatives to oppose that administration’s radical excesses would often ask things like this: would you be comfortable having Hillary Clinton wield the power to spy on your calls or imprison you with no judicial reivew or oversight? So for you good progressives out there justifying this, I would ask this: how would the power to assassinate U.S. citizens without due process look to you in the hands of, say, Rick Perry or Michele Bachmann?
The Fascist Moses September 10, 2011Posted by rogerhollander in History.
Tags: al haig, allen dulles, assassination, bay of pigs, cheney, cia, david glenn cox, e. howard hunt, gerald ford, henry kissinger, history, iran hostages, Jimmy Carter, kennedy assassination, leon panetta, nixon administration, paul bremer, Richard Nixon, richard secord, Robert Gates, roger hollander, ronald reagan, rumsfeld, spiro agnew, tim geithner, Vietnam War, watergate, woodstock
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Roger’s note: A stroll down Memory Lane for those of us who lived through and survived the 60s, 70s, etc.
By David Glenn Cox
Let’s kick Richard Nixon, its great fun; we all did it at parties back in the 1970s. But that was the previous generation and this generation has missed out on the fun, like Woodstock. Unbeknownst to this current generation there would have been hundreds of fistfights and stabbings at Woodstock had it not been for three little words, “f**k Richard Nixon!”
All one had to do was simply step between the adversaries and say, “Come on now, guys, hey, look. f**k Richard Nixon!” Instantly the opponents would separate and begin to smile and agree, “Yeah, you’re right, man. f**k Richard Nixon!” The potential warriors would depart as buddies and would exchange bong hits until their eyeballs melted in their sockets and they would forget all about their conflicts.
That was in the twilight’s last gleaming of American democracy, when a President could still be removed from office for malfeasance. Let me rephrase that, Richard Nixon could be removed from office for malfeasance; it’s doubtful whether anyone else could be. I know all about George W. Bush and Bush was a drunken, coke-snorting, mean-spirited, frat boy. There is no doubt in my mind that he is the truest definition of a sociopath, but Nixon was just plain crazy.
Nixon had paranoid delusions that people were out to get him and so he responded with bile, tirades, enemy lists and dirty tricks. Because of his paranoid delusions he alienated everyone around him until even members of his own party would walk all the way across the street just to piss on Richard Nixon. Eventually these self-fulfilling, paranoid delusions gave to Richard Nixon a kind of an Eeyore quality.
Nixon’s most trusted advisor was Henry Kissinger and Nixon only trusted him while he was in the room. Kissinger’s first government job was as a translator for the head of the CIA, Allen Dulles. Kissinger was his protege and it was Dulles who helped to plan the Bay of Pigs invasion and Dulles who told Kennedy that he needed to launch an unprovoked, full-scale military attack on Cuba. Kennedy fired Dulles and his Deputy Director Charles Cabell, whose brother Earl Cabell changed the presidential motorcade route in Dallas.
Nice folks. It was Dulles who proposed a plan to fake an aircraft hijacking and to blame it on Cuba. This is where this cast of unknowns began their rise into the halls of corporate fascism. George Bush, E. Howard Hunt, Porter Goss were all operatives under Dulles, and after Dulles was fired their futures were in question. But when Richard Nixon chose Henry Kissinger as Secretary of State their meal tickets became safe and secure. Meanwhile, on the other side of the world, CIA operative General Richard Secord was moving heroin on military aircraft in Vietnam and depositing the profits in banks in Australia. Then Secord began to sell pilfered US military hardware to friend and foe alike, and when this was discovered Secord was promoted!
Nixon ran for the presidency with the promise of a secret plan to end the Vietnam War. His secret plan, as it turned out, was this: get Richard Nixon elected President and then fight the North Vietnamese until they give up. Nixon authorized the secret bombings of neutral countries, as well as illegal invasions. Cambodia’s President Norodom Sihanouk was playing both sides so the CIA had him overthrown. Sihanouk had signed a secret pact with China in 1965 but was playing footsie with the CIA, so when the CIA disposed of him, China said, “Good riddance!”
Kennedy wouldn’t expand the Vietnam War, and well, he had an accident. So when Richard Nixon ended the Vietnam War without a victory he, well, he had an accident, too. After invading and bombing civilian areas in neutral countries and bombing civilian and humanitarian targets in North Vietnam, Nixon was removed from office because of a bungled burglary and financial campaign irregularities, and Americans with a straight face say the Catholic Church is in denial!
With Spiro Agnew’s departure due to racketeering conviction two chief executives of the country are removed from office within ten months and no one suspects anything is amiss. No one suspects levers behind the throne but Gerald Ford is elected President by one vote, Richard Nixon’s vote. Ford’s lone claim to fame was to pardon Richard Nixon to end the long national nightmare of Watergate. Nightmare is a good synonym for the coup d’etat that happened while America slept. Two attempts were made on Ford’s life in little more than two years and who was the director of the CIA then? Anyone? Why, it was good old George H. W. Bush.
The first Witch says, “When shall we three meet again, In thunder, lightning, or in rain?”
The second Witch, “When the hurlyburly’s done, When the battle’s lost and won.”
The third Witch says, “That will be ere the set of sun.”
The first Witch, “Where the place?”
The second Witch, “Upon the heath.”
The third Witch, “There to meet with Macbeth.”
All, “Fair is foul, and foul is fair: Hover through the fog and filthy air.”
Gerald Ford was lampooned in the press as a buffoon and even though he was a buffoon he never shot his friend in the face on a drunken hunting excursion or played golf with a Supreme Court Judge who might have to hear cases involving his administration. So either you’re in or you’re out. James Earl Carter was elected with on strong anti-Washington sentiment and Washington responded with a strong Anti-Carter sentiment. For four years Carter and his staff complained of phone calls not being returned and policies not being carried out. Riots and demonstrations were happening in Tehran; did anyone think of reducing the embassy staff or closing the embassy? That’s the job the CIA is supposed to do, and when the Iranians took Americans hostage, who took the fall?
When the military rescue mission failed, who took the fall?
The hostages were released twenty minutes after the swearing in of Ronald Reagan, but the story goes that no deals were struck. Sure, I believe. Somehow the Reagan camp came into possession of Carter’s national security briefings and even Carter’s debate notes. Richard Allen was Reagan’s foreign policy chief during the campaign and he said that he was told to report to Theodore Shackley. Shackley had been fired from the CIA by the Carter administration and it was Theodore Shackley who was the station chief in Miami during the Bay of Pigs invasion and the senior agent was E. Howard Hunt.
So who did the Carter administration suspect had been leaking the classified documents? Two national security officials named Donald Gregg and Robert Gates. That’s somewhat illuminating considering Gates was the lone holdover from the Bush administration. Shackley reported to Bush Senior on the campaign and Gregg reported directly to Shackley.
So Reagan gets elected and hell comes to breakfast: tax cuts for the rich, education cuts for the poor. The giveaways of national resources to coal and timber interests. Drug smuggling in South America, the looting of the savings and loans. For the CIA it was glory days until something went horribly wrong just sixty-nine days into Reagan’s first term. Another of America’s oh so famous lone nuts with a gun shot Reagan as he walked out the front door of the hotel where he was speaking.
I’ll repeat that, the President of the United States walked out the front door of the hotel. Does that sound like good security policy to you? Reagan and aide James Brady were hit with bullets and the hospital was immediately notified, but Reagan’s limo showed up at the hospital almost fifteen minutes after Brady’s and no stretcher was waiting. The excuse given was that the driver, a highly-trained ten year veteran of the Washington Secret Service, got lost in his own hometown. If you had told me that he got lost in Omaha, maybe I’d believe it. If you pulled a stunt like that in Stalin’s Russia, you and your family would be chopping wood in Siberia for generations to come.
During his short tenure as Secretary of State, Al Haig had complained that someone within the administration had been trying to undermine him in the eyes of the President. After hearing that the President had been shot it was Haig’s staff who notified Vice President Bush who was away giving a speech in Fort Worth. It was Haig who convened the cabinet for a status report and began an investigation into the shooter or shooters and then made his famous “I am in charge” statement, which meant that he was in charge of the White House until Bush returned. He later said that Bush had agreed to this over the phone.
When Bush returned to the White House he cancelled the investigation into the shooter or shooters and Haig was then vilified in the press. Al Haig had been hired by Henry Kissinger to serve in the Nixon administration in 1969. Secretary of state George Schultz was also a Nixon/Kissinger protege as were Donald Rumsfeld, Dick Cheney and Paul Bremer. Nixon begat Reagan, Reagan begat Bush, Bush begat son of Bush.
In the first one hundred and seventy-four years of American history there were three assassination attempts on chief executives and candidates, with only two being successful. Since 1963 there have been six assassinations or attempts: John Kennedy, Robert Kennedy, Gerald Ford (twice), George Wallace and Ronald Reagan. Interestingly when Wallace ran in 1968 he ran as a Democrat and was seen as taking votes away from Democrats. When he ran again in 1972 he ran as an independent and was expected to take votes from Republicans and was shot by yet another lone nut with a gun.
In one hundred and seventy-four years only one chief executive was ever impeached. Since 1968 one President was impeached, one President stepped down to keep from being impeached and one Vice President resigned upon conviction for racketeering.
It is tied and twisted like a Gordian Knot; the fiascos and failures of a generation of political leadership can all be tied to the tail of one delusional paranoid, but the names and numbers speak for themselves. It is impossible to say that it all happened because of Richard Nixon, but Nixon hired Kissinger and in doing so made himself the Fascist Moses.
We have wandered in the political desert for forty years and we cannot seem to find our way home. Maybe defense secretary Robert Gates knows the way; He was a Kissinger protege. Maybe Treasury Secretary Tim Geithner knows; he worked for Kissinger, too. Maybe CIA Director Panetta knows. He, too, worked in the Nixon administration. Funny, isn’t it? Defense, Treasury and CIA.
Sullivan’s defense of presidential assassinations October 3, 2010Posted by rogerhollander in 9/11, Africa, Barack Obama, Civil Liberties, Criminal Justice, Democracy, Human Rights, Kenya, War on Terror.
Tags: 9/11, al-Qaeda, andrew sullivan, anti-terrorism, assassination, awlaki, civil liberties, constitution, Criminal Justice, due process, executive power, glenn greenwald, human rights, kenya, nairobi bombing, Obama, presidency, roger hollander, rule of law, state secrets, terrorism, treason, war on terror
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Saturday, Oct 2, 2010 09:03 ET
During the Bush-era torture debates, I was never able to get past my initial incredulity that we were even having a “debate” over whether the President has the authority to torture people. Andrew Sullivan has responded to some of the questions I posed about his defense of Obama’s assassination program, and I realize now that throughout this whole assassination debate, specific legal and factual issues aside, my overarching reaction is quite similar: I actually can’t believe that there is even a “debate” over whether an American President — without a shred of due process or oversight — has the power to compile hit lists of American citizens whom he orders the CIA to kill far away from any battlefield. The notion that the President has such an unconstrained, unchecked power is such a blatant distortion of everything our political system is supposed to be — such a pure embodiment of the very definition of tyrannical power — that, no matter how many times I see it, it’s still hard for me to believe there are people willing to expressly defend it.
Moreover, it’s almost impossible to ignore how similar are the rhetoric and rationale between (a) Bush supporters who justified presidential torture and (b) Obama supporters who now justify presidential due-process-free assassinations. Please read Daniel Larison’s argument about that, responding to Sullivan’s post. He’s exactly right.
The central rhetorical premise of Bush defenders was that if they just scream “Terrorist!!’ and “we’re at war!!!!” enough times, and loudly enough, then it would make basic precepts of due process, Constitutional safeguards and the rule of law disappear. If they demonized their targets enough (this is a really bad Terrorist who wants to kill Americans, with nukes if he can!!) — or manipulatively invoked 9/11 enough times (note Andrew’s prominent display of a smoldering WTC photo strategically placed at the top of his argument) — then it would mean that anything goes, that no compliance with law is or should be required to do anything to them (a claim that always led to the unanswerable question: if it’s really so obvious that this is a really bad Terrorist, then why not prove it in court?).
And if you just toss enough insult-strawmen at those who insist upon basic rights even when “we’re at war!!,” then you can marginalize them to the point of invisibility (I wasn’t around in 2003 and thus never got to be accused by Andrew of being a Far-Leftist-pacifist-unwilling-to-fight-the-menace-of-Islamic-Evil, so I guess it’s nice that I’m making up for that now. I always thought a “pacifist” was one who opposes the use of force under all circumstances, even self-defense [a view to which I do not subscribe]; I never knew that one becomes a “pacifist” by believing that the President lacks the power to order his own citizens assassinated far from any battlefield without due process). Just read Andrew’s post to see how reliant he is on these same tactics to justify Obama’s program: quite ironic, given how often he has had these same tactics used against him during his steadfast, eloquent opposition to torture.
In any event, I was going to address a few of Andrew’s specific claims, because some of them are factually inaccurate (I don’t believe that’s intentional, but merely the by-product of the fact that Andrew doesn’t write about the legal issues raised here very often). And I still will do that below, but before I do: as I was writing this, I received an email from a Kenyan lawyer, David Majanja, that so perfectly illustrates how far America has fallen on these issues of basic liberty as compared to much of the rest of the world, and what authoritarian extremists many Americans have become on these questions, that I want to feature it first.
As Majanja noted in his email to me, Kenya faces a massive threat from terrorism. Radicals bombed the U.S. embassy in Nairobi in 1998 and attacked an Israeli-owned tourist resort and Israeli airliner in Mombasa in 2002, and that country has repeatedly been under Terrorist threats for the last decade. Nonetheless, consider this court decision that was just issued in Nairobi on Thursday. A Kenyan Muslim, Mohamed Sulemein, was detained in August — without any charges or due process — by Kenyan anti-terrorism agents (the ATPU), accused of having participated in the horrific June World Cup bombings in Kampala, Uganda, which killed 74 innocent people. He had his passport seized and was told he would be sent to Uganda without any opportunity to contest the accusations against him. His wife filed a habeas corpus petition in a Kenyan court, demanding that “he be treated in accordance with the laws and Constitution of Kenya,” which, among other things, guarantees the right to be charged with a crime within 24 hours of arrest and not to be shipped outside the country without a hearing.
The Kenyan Court agreed, and ruled that the due-process-free extradition of this accused Terrorist to Uganda was illegal and unconstitutional. Just read what the court said to see what’s so profoundly absent from American political thought; this, to me, is the crux of all of these debates, including the one over presidential assassinations:
The person whose rights were denied there is accused of Terrorist acts every bit as reprehensible and dangerous as the accusations aimed at Anwar Awlaki. His rights were denied to a far less extreme degree than what is being done to Awlaki (rendition to Uganda for trial v. being targeted for due-process-free assassination). Kenya faces a Terrorism threat at least equal to what the U.S. faces, and several times has suffered atrocious attacks on its soil. But they are nonetheless able to recognize that citizens “are not exempted from the ordinary protections of law” by virtue of being a Terrorism suspect, and that “the preservation of liberties [even for Terrorist suspects] is the only way to reinforce this country’s commitment to the rule of law and human rights.” If only that recognition were equally widespread in the U.S., which still holds itself out as “the leader of the free world.”
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As for Andrew’s specific claims: I realize that it’s not possible for him to address every point I made and that he made a good faith effort to answer the questions I asked, but I was still disappointed to see him ignore these questions, because these are the same ones I could never get Bush supporters to answer either: (1) would you also be comfortable with having a GOP President — such as Sarah Palin — vested with the unchecked power to order American citizens killed far from any battlefield, with no due process and no obligation to prove the accusations?; (2) Andrew says that the President does not have the right to kill American citizens on U.S. soil, but what rationale can justify that limitation once you endorse the view that the President can order citizens killed anywhere they are found via the mere accusation of Terrorism?; (3) shouldn’t the long and disturbing record of serious error and/or abuse on the part of both the Bush and Obama administrations — whereby numerous individuals, a majority, have been falsely accused of Terrorism — lead a rational person to refuse to vest faith in the President’s ability to decide who is a Terrorist without due process or oversight?; and (4) how could Bush’s oversight-free detention or eavesdropping of citizens be so dangerous, whereas Obama’s oversight-free killing of them isn’t?
Then there are several factually inaccurate assertions. Andrew claims that Obama has “expanded judicial review of this kind of military action,” which is the only reason Awlaki’s case is in court. The claim that these assertions of power are being reviewed by courts due to Obama’s beneficence is absolutely false; they’re in court because Obama — like Bush — has been sued for acting illegally and unconstitutionally, and Obama — like Bush — has asserted that no courts can review his conduct due to secrecy and standing (see this article from the Obama-friendly TPM site — headlined: “Expert consensus: Obama mimics Bush on state secrets” — to see how identical the conduct is). Obama’s argument is the exact opposite of what Andrew claims: it’s that courts have no right and no power to review his decisions about which citizens are assassinated.
Then Andrew cites Ex parte Quirin  to claim that “it is utterly uncontroversial that the military can kill a US citizen abroad if he is waging a treasonous war against the United States,” but even that case — long considered quite radical and a favorite of the Yoo/Addington camp — came only after the defendants were charged in a military commission of being saboteurs, and the Supreme Court merely held that military commissions constitute sufficient due process for the offenses with which they were charged. Here’s what the Court actually said (emphasis added):
The President, as President and Commander in Chief of the Army and Navy, by Order of July 2, 1942, appointed a Military Commission and directed it to try petitioners for offenses against the law of war and the Articles of War . . . On July 3, 1942, the Judge Advocate General’s Department of the Army prepared and lodged with the Commission the following charges against petitioners, supported by specifications: . . . The Commission met on July 8, 1942, and proceeded with the trial, which continued in progress while the causes were pending in this Court . . .As announced in our per curiam opinion we have resolved those questions by our conclusion that the Commission has jurisdiction to try the charge preferred against petitioners. . . .
We are concerned only with the question whether it is within the constitutional power of the national government to place petitioners upon trial before a military commission for the offenses with which they are charged. . . . Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. . . . We hold only that those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission.
Aside from the fact that these defendants were caught in the act of engaging in hostilities — not sleeping or driving in a car with their parents, as Awlaki might be doing when he’s killed — this case doesn’t remotely justify assassinating citizens without any due process, and I really hope Andrew would retract the suggestion that it does. The whole point of Ex parte Quirin — as anyone can see — is that these defendants were given due process: a military tribunal which the court found constitutionally adequate under the circumstances. That’s the opposite of Obama’s due-process-free assassinations.
Then Andrew says this:
I agree that the Obama administration’s decision to shut down inspection of the evidence behind the decision to regard Awlaki as someone waging an active war against the US under “state secrets” is a step way too far. I think the president has a duty to explain in court why he believes this person must be treated as an active enemy at war with the US, and therefore treated as all such enemies in wartime as someone to be killed.
But this is the crux of the whole dispute. Once one concedes this, what disagreement is left with critics of Obama’s conduct? What Andrew says Obama has a “duty” to do — “explain in court why he believes this person must be treated as an active enemy at war with the US” — is precisely that which Obama is steadfastly refusing to do. Rather than indict or charge Awlaki, or even respond to his lawsuit with evidence of his guilt, he’s simply asserting the right to kill him without any oversight. Indeed, before Awlaki’s father filed suit, that’s exactly what Obama has been trying to do: kill this American citizen without any due process whatsoever (along those lines, Andrew’s announcement that he’s “sick of the left treating Obama as if he has done nothing to change the dictatorial, illegal and indecent policies of his predecessor” is very odd, given that Andrew himself — in a post from several weeks ago which he entitled “The Untamed Prince” — called for the prosecution of Barack Obama as a war criminal, and wrote: “Obama as executive quickly co-opted the kind of blanket secrecy and protection of the national security apparatus from the rule of law that plagued us in the Bush-Cheney administration“; those are Andrew’s words, not the words of “the left”).
But the most telling part of his response is where Andrew replies to my question about how he knows that Awlaki is actually an “Al Qaeda Terrorist” who deserves to die:
There is much public information about Awlaki, and I urge readers to go to Wiki and examine the public record and sources in detail to make their own minds up. . . . But seriously, is Glenn honestly saying that a man who has committed treason, has had multiple direct contacts with al Qaeda, including the 9/11 mass-murderers, has been directly connected with inciting American citizens to kill others in terror attacks is not, self-evidently, an al Qaeda terrorist who poses a direct and imminent threat to innocent human beings, motivated by a poisonous religious ideology that was responsible for the murder of 3,000 people on 9/11?
This is what we’re reduced to in America: trial by Wikipedia. Apparently, as long as there are enough links on your Wikipedia page to other accused Terrorists, then the President can wave his imperial wand and impose the death penalty on you. Aside from the fact that most of what is on “Wiki” comes from unproven government accusations, and aside from the fact that it’s almost all rank guilt by association (Andrew: “Witnesses report he was a spiritual adviser to and met with two 9/11 mass-murderers, Nawaf Al-Hazmi and Khalid Almihdhar“), this claim raises the painfully obvious question: if the evidence is so clear and overwhelming that Awlaki is a Terrorist who deserves the death penalty, then why are Obama — and his supporters — so afraid to indict him and prove these claims in court? That was always the quandary posed by Bush’s assertion that he could eavesdrop or detain with no judicial oversight, but was doing so only on obvious Terrorists: if it’s so clear that they’re Terrorists, why won’t you go to court and convince a court that they’re Terrorists?
As for Andrew’s claim that Awlaki “has committed treason,” I’ll say this: he may or may not have. But we have this document called “the Constitution,” and it makes as clear as can be that no President has the power to simply decree that someone is guilty of that crime. Right in Article III, Section 3, it explicitly makes clear what must be done if one is to be punished as a traitor:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
What possible justification exists for ignoring that Constitutional provision? Even if we are at war, there is, manifestly, no “war exception” to the Constitution. “War” is not, and never has been, a cognizable excuse for disregarding Constitutional guarantees — at least not in a republic that still adheres to the rule of law.
In general, the U.S. Constitution prohibits the deprivation of “life or liberty . . . without due process of law.” But because of how serious a crime Treason is, the Constitution imposes heightened requirements on proving it in court. It’s not something that is presidentially declared by anonymous press leaks or reading a Wikipedia page. If the rule of law means anything, it’s that explicit Constitutional protections like this one don’t get to be swatted away by yelling “War!!!” or “Terrorist!” or by putting emotionally powerful pictures of 9/11 on your blog. As the Kenyan judge put it: “the preservation of liberties [even for Terrorist suspects] is the only way to reinforce this country’s commitment to the rule of law.” If you’re willing to vest the President with the power to order your fellow citizens murdered as a Traitor without a shred of due process, then, by definition, you simply do not believe in these core principles.
UPDATE: In response to numerous reader emails, Andrew posts a couple more brief thoughts on all of this here.
Also worth reading on this: (1) Harper‘s Scott Horton, who says he originally thought the objections of civil libertarians in the Awlaki case were overblown, but has now concluded — in light of the Obama DOJ’s brief — that the Obama program is the embodiment of “tyranny”: “When the executive claims the power to take the life of a citizen without recourse to law and legal process, and seeks to sustain that under vague claims of commander-in-chief authority, that claim is in its essence tyrannical”; and (2) former CIA officer and current novelist Barry Eisler, who examines other dubious claims made by Sullivan in defense of Obama’s program.
Obama argues his assassination program is a “state secret” September 27, 2010Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice.
Tags: anwar awlaki, assassination, civil liberties, constitution, david rivkin, doj, due process, executive power, glenn greenwald, Obama, presidency, state secrets, treaso
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Saturday, Sep 25, 2010 15:26 ET
At this point, I didn’t believe it was possible, but the Obama administration has just reached an all-new low in its abysmal civil liberties record. In response to the lawsuit filed by Anwar Awlaki’s father asking a court to enjoin the President from assassinating his son, a U.S. citizen, without any due process, the administration late last night, according to The Washington Post, filed a brief asking the court to dismiss the lawsuit without hearing the merits of the claims. That’s not surprising: both the Bush and Obama administrations have repeatedly insisted that their secret conduct is legal but nonetheless urge courts not to even rule on its legality. But what’s most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is “state secrets”: in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets,” and thus no court may adjudicate their legality.
A very intense case of food poisoning in New York on Thursday, combined with my traveling home all night last night, prevents me from writing much about this until tomorrow (and it’s what rendered the blog uncharacteristically silent for the last two days). But I would hope that nobody needs me or anyone else to explain why this assertion of power is so pernicious — at least as pernicious as any power asserted during the Bush/Cheney years. If the President has the power to order American citizens killed with no due process, and to do so in such complete secrecy that no courts can even review his decisions, then what doesn’t he have the power to do? Just for the moment, I’ll note that The New York Times‘ Charlie Savage, two weeks ago, wrote about the possibility that Obama might raise this argument, and quoted the far-right, Bush-supporting, executive-power-revering lawyer David Rivkin as follows:
The government’s increasing use of the state secrets doctrine to shield its actions from judicial review has been contentious. Some officials have argued that invoking it in the Awlaki matter, about which so much is already public, would risk a backlash. David Rivkin, a lawyer in the White House of President George H. W. Bush, echoed that concern.
“I’m a huge fan of executive power, but if someone came up to you and said the government wants to target you and you can’t even talk about it in court to try to stop it, that’s too harsh even for me,” he said.
Having debated him before, I genuinely didn’t think it was possible for any President to concoct an assertion of executive power and secrecy that would be excessive and alarming to David Rivkin, but Barack Obama managed to do that, too. Obama’s now asserting a power so radical — the right to kill American citizens and do so in total secrecy, beyond even the reach of the courts — that it’s “too harsh even for” one of the most far-right War on Terror cheerleading-lawyers in the nation. But that power is certainly not “too harsh” for the kind-hearted Constitutional Scholar we elected as President, nor for his hordes of all-justifying supporters soon to place themselves to the right of David Rivkin as they explain why this is all perfectly justified. One other thing, as always: vote Democrat, because the Republicans are scary!
* * * * *
The same Post article quotes a DOJ spokesman as saying that Awlaki “should surrender to American authorities and return to the United States, where he will be held accountable for his actions.” But he’s not been charged with any crimes, let alone indicted for any. The President has been trying to kill him for the entire year without any of that due process. And now the President refuses even to account to an American court for those efforts to kill this American citizen on the ground that the President’s unilateral imposition of the death penalty is a “state secret.” And, indeed, American courts — at Obama’s urging — have been upholding that sort of a “state secrecy” claim even when it comes to war crimes such as torture and rendition. Does that sound like a political system to which any sane, rational person would “surrender”?
Marcy Wheeler has more on other aspects of the DOJ’s arguments, and I’ll have more tomorrow as well.
UPDATE: As a reminder: Obama supporters who are dutifully insisting that the President not only has the right to order American citizens killed without due process, but to do so in total secrecy, on the ground that Awlaki is a Terrorist and Traitor, are embracing those accusations without having the slightest idea whether they’re actually true. All they know is that Obama has issued these accusations, which is good enough for them. That’s the authoritarian mind, by definition: if the Leader accuses a fellow citizen of something, then it’s true — no trial or any due process at all is needed and there is no need even for judicial review before the decreed sentence is meted out, even when the sentence is death.
For those reciting the “Awlaki-is-a-traitor” mantra, there’s also the apparently irrelevant matter that Article III, Section 3 of the Constitution (the document which these same Obama supporters pretended to care about during the Bush years) provides that “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” Treason is a crime that the Constitution specifically requires be proven with due process in court, not by unilateral presidential decree. And that’s to say nothing of the fact that the same document — the Constitution — expressly forbids the deprivation of life “without due process of law.” This one sentence from the Post article nicely summarizes the state of Obama’s civil liberties record:
The Obama administration has cited the state-secrets argument in at least three cases since taking office – in defense of Bush-era warrantless wiretapping, surveillance of an Islamic charity, and the torture and rendition of CIA prisoners.
And now, in this case, Obama uses this secrecy and immunity weapon not to shield Bush lawlessness from judicial review, but his own.
Olbermann on Obama’s Assassination Program April 9, 2010Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Human Rights, War on Terror.
Tags: assassination, assassination program, cia assassinations, constitution, Criminal Justice, democrats, due process, glenn greenwald, habeas corpus, human rights, Obama, obama assassination, olbermann, presidential assassination, progressives, republicans, war on terror
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There are many legitimate criticisms voiced about Keith Olbermann, but he deserves substantial credit for his coverage [Wednesday] night of a story that is as self-evidently significant as it is under-covered: Barack Obama’s assassination program aimed at American citizens. He not only led off his show with this story, but devoted the first two segments to it, and made many of the key observations and asked virtually all of the right questions. The videos of those two segments, worth watching, are below.
What’s most striking to me about all of this is that — as I noted yesterday (and as Olbermann stressed) — George Bush’s decision merely to eavesdrop on American citizens without oversight, or to detain without due process Americans such as Jose Padilla and Yaser Hamdi, provoked years of vehement, vocal and intense complaints from Democrats and progressives. All of that was disparaged as Bush claiming the powers of a King, a vicious attack on the Constitution, a violation of Our Values, the trampling on the Rule of Law. Yet here you have Barack Obama not merely eavesdropping on or detaining Americans without oversight, but ordering them killed with no oversight and no due process of any kind. And the reaction among leading Democrats and progressives is largely non-existent, which is why Olbermann’s extensive coverage of it is important. Just imagine what the reaction would have been among progressive editorial pages, liberal opinion-makers and Democratic politicians if this story had been about George Bush and Dick Cheney targeting American citizens for due-process-free and oversight-less CIA assassinations.
Republicans are not going to object to any of this. With rare exception, they believe in unlimited executive authority and denial of due process. They see Obama’s adoption of the core Bush/Cheney approach as a vindication of what they did for eight years (and also see it, not unreasonably, as proof that progressive complaints about Bush’s “shredding of the Constitution” were not genuine but rather opportunistic, cynical and motivated by desire for partisan gain). As a result, even the most Obama-hating right-wing extremists will praise him and cheer for what he’s doing. At the same time, the people who spent eight years screaming about things like this (when Bush/Cheney were doing them) are now mostly silent if not finding ways to justify and defend it (we don’t need due process because the President said this is an American-Hating Terrorist). As White House servant Richard Wolffe said in the second Olbermann segment below (and Wolffe’s commentary was actually fairly good), the White House is “very proud” of its presidential assassination program, which is likely why they decided to leak it to the NYT and the WP yesterday.
Here again, we see one of the principal and longest-lasting effects of the Obama presidency: to put a pretty, eloquent, progressive face on what (until quite recently) was ostensibly considered by a large segment of the citizenry to be tyrannical right-wing extremism (e.g., indefinite detention, military commissions, “state secrets” used to block judicial review, an endless and always-expanding “War on Terror,” immunity for war criminals, rampant corporatism — and now unchecked presidential assassinations of American citizens), and thus to transform what were once bitter, partisan controversies into harmonious, bipartisan consensus:
UPDATE: Here’s the segment I did yesterday on Al Jazeera — along with The Weekly Standard‘s Bill Roggio and GWU Professor of Media and International Affairs Steven Livingston — regarding the WikiLeaks/Iraq video:
UPDATE II: The American Prospect‘s Adam Serwer has an interesting post reporting that civil rights groups have issued a joint letter opposing the closing of Guantanamo if it means — as the Obama administration has suggested — that Guantanamo and its defining injustices will simply be re-located to U.S. soil. As part of his reporting, Serwer writes this:
[B]road assertions of executive power haven’t even been limited to the last administration. Instead, we’ve seen the powers of the president expand, with the Obama administration asserting the right to assassinate American citizens without any due process or finding of guilt whatsoever.
From a civil libertarian point of view, we’re in a much worse place than we were during the Bush administration, when Democrats were willing to oppose Bush’s expansive claims of executive authority. Now we have only muted criticism from Democratic legislators and hysterical cries from Republicans that Obama isn’t going far enough.
As far as I’m concerned, that’s the point that cannot be stressed enough. And it’s particularly good to see its being highlighted in a liberal publication like the Prospect (though Serwer has been pointing out such things there for quite some time).
Copyright ©2010 Salon Media Group, Inc.
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book “How Would a Patriot Act?,” a critique of the Bush administration’s use of executive power, released in May 2006. His second book, “A Tragic Legacy“, examines the Bush legacy.