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When It Looks and Feels Like Totalitarianism… May 4, 2012

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Democracy, Human Rights.
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Tue, 04/24/2012 – 21:22 — Jemima Pierre
 
www.blackagendareport.com

 

 

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.

Today in Endless War June 21, 2011

Posted by rogerhollander in Barack Obama, Iraq and Afghanistan, War.
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Tuesday, Jun 21, 2011 07:22 ET

As usual, there are multiple events from just the last 24 hours vividly highlighting the nature of America’s ongoing — and escalating — posture of Endless War:

(1) In December, 2009, President Obama spoke at West Point and, while announcing his decision to (yet again) deploy more troops to Afghanistan, he assured the nation in a much-heralded vow that “after 18 months, our troops will begin to come home.”  He repeated that claim in May, 2010, prompting headlines declaring that Obama has set July, 2011 as the target date for when “withdrawal” from Afghanistan will begin.  Now we’re less than two weeks away from that target, and The New York Times today makes clear what “withdrawal” actually means:

President Obama plans to announce his decision on the scale and pace of troop withdrawals from Afghanistan in a speech on Wednesday evening . . . Mr. Obama is considering options that range from a Pentagon-backed proposal to pull out only 5,000 troops this year to an aggressive plan to withdraw within 12 months all 30,000 troops the United States deployed to Afghanistan as part of the surge in December 2009.. . . .

Even after all 30,000 troops are withdrawn, roughly 68,000 troops will remain in Afghanistan, twice the number as when Mr. Obama assumed office.

 

So even under the most “aggressive” withdrawal plan the President is considering — one that he and media outlets will undoubtedly tout as a “withdrawal plan” (the headline on the NYT front page today: “Obama to Announce Plans for Afghan Pullout”) — there will still be “twice the number” of American troops in that country as there were when George Bush left office and Obama was inaugurated.  That’s what “withdrawal” means in American political parlance: doubling the number of troops fighting a foreign war over the course of four years.

 

(2) So frivolous and lawless are Obama’s excuses for waging war in Libya in violation of the War Powers Resolution that they have provoked incredibly harsh condemnations even from those who typically defend the President.  In The Washington Post today, Eugene Robinson aggressively denounces Obama’s arguments for waging war without Congress:

Let’s be honest: President Obama’s claim that U.S. military action in Libya doesn’t constitute “hostilities” is nonsense, and Congress is right to call him on it.

Blasting dictator Moammar Gaddafi’s troops and installations from above with unmanned drone aircraft may or may not be the right thing to do, but it’s clearly a hostile act. Likewise, providing intelligence, surveillance and logistical support that enable allied planes to attack Gaddafi’s military — and, increasingly, to target Gaddafi himself — can only be considered hostile. These are acts of war.

Yet Obama, with uncommon disregard for both language and logic, takes the position that what we are doing in Libya does not reach the “hostilities” threshold for triggering the War Powers Act, under which presidents must seek congressional approval for any military campaign lasting more than 90 days. House Speaker John Boehner said Obama’s claim doesn’t meet the “straight-face test,” and he’s right. . . .

Most important, what are we doing there? Are we in Libya for altruistic or selfish reasons? Principles or oil? Assuming Gaddafi is eventually deposed or killed, then what? Do we just sail away? Or will we be stuck with yet another ruinously expensive exercise in nation building?

There’s also a moral question to consider. The advent of robotic drone aircraft makes it easier to wage war without suffering casualties. But without risk, can military action even be called war? Or is it really just slaughter?

 

Afghan War advocate Andrew Exum similarly condemns Obama’s attempt to justify violation of the WPR as “simply one of the stupidest things I’ve read in some time” and — echoing Robinson — proclaims that “it does not pass the laugh test.”  And in The New York Times, Yale Law Professor Bruce Ackerman explains that, through their lawyer-cherry-picking, “the White House has shattered the traditional legal process the executive branch has developed to sustain the rule of law over the past 75 years,” and adds:

From a moral perspective, there is a significant difference between authorizing torture and continuing a bombing campaign that may save thousands of Libyans from slaughter by Col. Muammar el-Qaddafi. But from a legal viewpoint, Mr. Obama is setting an even worse precedent.

Although Mr. Yoo’s memos made a mockery of the applicable law, they at least had the approval of the Office of Legal Counsel. In contrast, Mr. Obama’s decision to disregard that office’s opinion and embrace the White House counsel’s view is undermining a key legal check on arbitrary presidential power.

 

And it’s always worth recalling that this is being done by a President who made restoration of “the rule of law” a centerpiece of his campaign.

 

(3) In Mother Jones, NYU Law School’s Karen Greenberg notes a trend that was as predictable as it is destructive: rather than signal an end to the “War on Terror,” the killing of Osama bin Laden has been seized upon by the bipartisan National Security State — led by the Obama administration — to expand its posture of Endless War and accelerate its assault on civil liberties.  Citing multiple examples subsequent to the bin Laden killing, she correctly observes:

The Obama administration and Congress have interpreted the killing of al-Qaeda’s leader as a virtual license to double down on every “front” in the war on terror. . . . One thing could not be doubted. The administration was visibly using the bin Laden moment to renew George W. Bush’s Global War on Terror (even if without that moniker). . . . In other words, Washington now seems to be engaged in a wholesale post-bin Laden ratification of business as usual, but this time on steroids.

 

One of the more absurd (though, as a matter of hope, understandable) claims I’ve heard in quite awhile was that the killing of bin Laden would trigger a reduction in the abuses of the War on Terror — as though bin Laden was truly the cause of those abuses rather than the pretext for them.  The morning after the bin Laden killing, I wrote the following, addressing those optimistically proclaiming its likely benefits:

Are we going to fight fewer wars or end the ones we’ve started? Are we going to see a restoration of some of the civil liberties which have been eroded at the altar of this scary Villain Mastermind? Is the War on Terror over? Are we Safer now?

Those are rhetorical questions. None of those things will happen. If anything, I can much more easily envision the reverse. Whenever America uses violence in a way that makes its citizens cheer, beam with nationalistic pride, and rally around their leader, more violence is typically guaranteed. Futile decade-long wars in Iraq and Afghanistan may temporarily dampen the nationalistic enthusiasm for war, but two shots to the head of Osama bin Laden — and the We are Great and Good proclamations it engenders — can easily rejuvenate that war love. One can already detect the stench of that in how Pakistan is being talked about: did they harbor bin Laden as it seems and, if so, what price should they pay? We’re feeling good and strong about ourselves again — and righteous — and that’s often the fertile ground for more, not less, aggression.

 

Read Greenberg’s piece, including the numerous examples she examines, to see if there’s any doubt that this is exactly what is happening.

 

(4) The war in Libya is starting to resemble virtually every other war: commenced with claimed humanitarian justifications; supported by well-meaning people convinced by the stated, official objectives; hailed as a short and easy task (“days, not weeks”); and then warped into a bloody, protracted conflict far from the original claims and without any real end in sight.  Earlier this week, one of the war’s most vocal supporters, Juan Cole, produced a list he entitled “Top Ten Mistakes in the Libya War,” including Obama’s failure to get Congressional approval, that “NATO has focused on a ‘shock and awe’ strategy of pounding the capital, Tripoli,” and that “NATO put its emphasis on taking out command and control in the capital instead of vigorously protecting civilian cities under attack.”

Perhaps that’s because “vigorously protecting civilians” was the pretext for the war, not the actual aim.  Yesterday, NATO admitted it killed multiple civilians — apparently including children — by bombing a house in a residential area.  It’s difficult to know exactly how many civilians NATO has killed thus far because Western armies don’t count their victims and the Gadaffi government’s claims are obviously unreliable, but whatever is true — including the fact that such killings are not intended –  they are the inevitable by-product of invading and bombing other countries.  The logic of war ensures that almost every conflict becomes more and more about such killing and less and less about the original lofty excuses for why they were started.

It’s thus not a surprise that 39 neocons — hilariously calling themselves “foreign policy experts” (including John Podhoretz, Liz Cheney, Gary Bauer, Marty Peretz, Karl Rove, Marc Theissen, and Bill Kristol) — issued a letter yesterday urging steadfast support for (and escalation of) the Libya War. Lofty justifications notwithstanding, this is exactly what they favor: long-term, endless domination of the Muslim world through military force and control over their governments.  That’s what the war in Libya, intended or not, has become.

 

(5) Perhaps most amazingly of all, this policy of Endless War endures even as official Washington inexorably plans — in the midst of still-booming economic inequality and suffering — to slash entitlements in the name of austerity.  Bizarrely, while more and more Republicans continue to recognize the growing foreign policy split in their Party (Ross Douthat and Joe Scarborough are the latest to side with the “isolationists” against the war-mongering neocons), many establishment liberals seem to be laying the groundwork for those cuts.  Yesterday, Matt Yglesias said he was “disillusioned” by alarmism over vast income inequality because, he assured everyone, things aren’t particularly good for the super-rich; meanwhile Digby — in a piece highly worth reading — examines how some liberal pundits (her example is Ezra Klein) seem to be doing the GOP’s work (and, more significantly, the White House’s) in (unwittingly or otherwise) justifying entitlement cuts.

Sullivan’s defense of presidential assassinations October 3, 2010

Posted by rogerhollander in 9/11, Africa, Barack Obama, Civil Liberties, Criminal Justice, Democracy, Human Rights, Kenya, War on Terror.
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Saturday, Oct 2, 2010 09:03 ET

By Glenn Greenwald

 

(updated below)

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 peopleAndrew 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.”

* * * * *

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 [1942]  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, 2010

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice.
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Saturday, Sep 25, 2010 15:26 ET

By Glenn Greenwald

www.salon.com

(updated below)

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.

The latest on Elena Kagan May 9, 2010

Posted by rogerhollander in Barack Obama, Criminal Justice.
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(Roger’s Note: If Obama nominates a genuine progressive to replace Justice Stevens on the Supreme Court it will come as a great surprise.  If he appoints Elena Kagan it will come as no surprise at all.  One would not have thought this two years ago.  Someone said back then, it may have been Glenn Greenwald himself, that if Obama is elected to the presidency, no matter how else he may disappoint, at least we can expect badly needed progressive appointments to the Supreme Court.  Obama has shown his true colors, time and time again and on virtually issue imaginable, in the fifteen months or so of his incumbency.  Anyone who still believes that he represents or sincerely desires progressive change in the country, that he is anything other than a hack run-of-the-mill Republicrat — albeit a uniquely gifted one — is either terminally naive or wilfully blind.)
 
 
Saturday, May 8, 2010 09:09 ET ,  Glenn Greenwald, www.salon.com

I’ve laid out my case against Elena Kagan as thoroughly as I could, but with several anonymous (i.e., unreliable) reports percolating that she’s the likely choice and could be announced as early as Monday, it’s worthwhile to note several recent items from others pertaining to her selection:

(1) University of Colorado Law Professor Paul Campos, who previously expressed shock at the paucity of Kagan’s record and compared her to Harriet Miers, has a new piece in The New Republic entitled (appropriately): “Blank Slate.”

(2) Digby examines what a Kagan selection would reveal about Obama, and she particularly focuses on Kagan’s relationship to Goldman Sachs.  That relationship is relatively minor, but it is illustrative in several ways and will certainly be used by Republicans to advance their attacks on this administration as being inextricably linked with Wall Street.  The Huffington Post‘s Sam Stein has more on the Kagan/Goldman Sachs connection.

(3) Following up on the article published yesterday in Salon by four minority law professors — which condemned Kagan’s record on diversity issues as “shocking” and “indefensible for the 21st Century” — Law Professor Darren Hutchinson of American University School of Law today writes that Kagan’s record is “abysmal.” 

Regardless of your particular views on these matters, that diversity is both vital and fair in the hiring process has long been a central plank in progressive thinking.  It takes little creativity to imagine what Democrats would say about a Republican Supreme Court nominee with a hiring record similar to Kagan’s.  The question is whether they will be as consistent as these law professors are in applying their claimed beliefs to their own side.  This is the issue that caused Linda Monk to rescind her endorsement of Kagan.  Will Kagan-defending progressives now suddenly say that diversity is irrelevant?  Will they try to claim that there were no qualified minorities for the Harvard Law School faculty?  How will they reconcile everything they’ve always said about diversity with Kagan’s record as Dean?

(4)  This headline, from law.com, is a darkly amusing and quite revealing one to read about the Obama White House’s front-runner to replace John Paul Stevens:  “Supreme Court Watchers Wonder:  How Conservative Is Kagan?

(5) Law Professor Jonathan Adler persuasively argues why Diane Wood would be easier to confirm than Elena Kagan.

(6) The New York Times‘ Charlie Savage today explains that executive power is one key area where Obama’s choice could bring about major changes to the Court, given that his selection would replace Justice Stevens, who was so stalwart about imposing limits on such power.  As Savage writes, Kagan’s record (to the extent such a thing even exists) “suggests she might generally be more sympathetic toward the White House than Justice Stevens.” 

(7) Perhaps most revealing of all:  a new article in The Daily Caller reports on growing criticisms of Kagan among “liberal legal scholars and experts” (with a focus on the work I’ve been doing), and it quotes the progressive legal scholar Erwin Chemerinsky as follows:  “The reality is that Democrats, including liberals, will accept and push whomever Obama picks.”  Yesterday on Twitter, Matt Yglesias supplied the rationale for this mentality:  “Argument will be simple: Clinton & Obama like and trust [Kagan], and most liberals (myself included) like and trust Clinton & Obama.”

Just think about what that means.  If the choice is Kagan, you’ll have huge numbers of Democrats and progressives running around saying, in essence:  “I have no idea what Kagan thinks or believes about virtually anything, and it’s quite possible she’ll move the Court to the Right, but I support her nomination and think Obama made a great choice.”  In other words, according to Chemerinksy and Yglesias, progressives will view Obama’s choice as a good one by virtue of the fact that it’s Obama choice.  Isn’t that a pure embodiment of mindless tribalism and authoritarianism?  Democrats love to mock the Right for their propensity to engage in party-line, close-minded adherence to their Leaders, but compare what conservatives did with Bush’s selection of Harriet Miers to what progressives are almost certain to do with Obama’s selection of someone who is, at best, an absolute blank slate. 

One of the very first non-FISA posts I ever wrote that received substantial attention (uniformly favorable attention from progressives) was this post, from February, 2006, about the cult of personality that subsumed the Right during the Bush era.  The central point was that conservatives supported anything and everything George Bush did, regardless of how much it comported with their alleged beliefs and convictions, because loyalty to him and their Party, along with a desire to keep Republicans in power, subordinated any actual beliefs.  Even Bill Kristol — in a 2006 New York Times article describing how Bruce Bartlett had been ex-communicated from the conservative movement for excessively criticizing George Bush — admitted that personal allegiance to Bush outweighed conservative principles in the first term and that “Bush was the movement and the cause.”  

To say that “Democrats, including liberals, will accept and push whomever Obama picks,” based on the rationale that “Clinton & Obama like and trust her, and most liberals (myself included) like and trust Clinton & Obama” — even if they know nothing about her, even if she might move the Court to the Right — seems to me to be an exact replica of what I described four years ago.

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.

The Case Against Elena Kagan April 13, 2010

Posted by rogerhollander in Criminal Justice.
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Published on Tuesday, April 13, 2010 by Salon.comby Glenn Greenwald

It is far from clear who Obama will chose to replace John Paul Stevens on the Supreme Court, but Elena Kagan, his current Solicitor General and former Dean of Harvard Law School, is on every list of the most likely replacements.  Tom Goldstein of SCOTUSblog has declared her “the prohibitive front-runner” and predicts:  “On October 4, 2010, Elena Kagan Will Ask Her First Question As A Supreme Court Justice.”  The New Yorker‘s Jeffrey Toobin made the same prediction

The prospect that Stevens will be replaced by Elena Kagan has led to the growing perception that Barack Obama will actually take a Supreme Court dominated by Justices Scalia (Reagan), Thomas (Bush 41), Roberts (Bush 43), Alito (Bush 43) and Kennedy (Reagan) and move it further to the Right.  Joe Lieberman went on Fox News this weekend to celebrate the prospect that “President Obama may nominate someone in fact who makes the Court slightly less liberal,” while The Washington Post‘s Ruth Marcus predicted:  “The court that convenes on the first Monday in October is apt to be more conservative than the one we have now.”  Last Friday, I made the same argument:   that replacing Stevens with Kagan risks moving the Court to the Right, perhaps substantially to the Right (by “the Right,” I mean:  closer to the Bush/Cheney vision of Government and the Thomas/Scalia approach to executive power and law).

Consider how amazing it is that such a prospect is even possible.  Democrats around the country worked extremely hard to elect a Democratic President, a huge majority in the House, and 59 Democratic Senators — only to watch as the Supreme Court is moved further the Right?  Even for those who struggle to find good reasons to vote for Democrats, the prospect of a better Supreme Court remains a significant motive (the day after Obama’s election, I wrote that everyone who believed in the Constitution and basic civil liberties should be happy at the result due to the numerous Supreme Court appointments Obama would likely make, even if for no other reason).

There will, of course, be some Democrats who will be convinced that any nominee Obama chooses is the right one by virtue of being Obama’s choice.  But for those who want to make an informed, rational judgment, it’s worthwhile to know her record.  I’ve tried here to subject that record to as comprehensive and objective an assessment as possible.  And now is the time to do this, because if Kagan is nominated, it’s virtually certain that she will be confirmed.  There will be more than enough Republicans joining with the vast majority of Democrats to confirm her; no proposal ever loses in Washington for being insufficiently progressive (when is the last time such a thing happened?).  If a Kagan nomination is to be stopped, it can only happen before her nomination is announced by Obama, not after.

* * * * *

Kagan’s lack of a record

One of the difficulties in assessing Kagan’s judicial philosophy and view of the Constitution is that direct evidence is extremely sparse.  That’s not only because she’s never been a judge, but also because (a) her academic career is surprisingly and disturbingly devoid of writings or speeches on most key legal and Constitutional controversies, and (b) she has spent the last year as Obama’s Solicitor General, where (like any lawyer) she was obligated to defend the administration’s policies regardless of whether she agreed with them.  As Goldstein wrote at SCOTUSblog:  “it seems entirely possible that Elena Kagan does not really have a fixed and uniform view of how to judge and to interpret the Constitution.”

As I’ve previously documented and examine further below, the evidence that is available strongly suggests that a Kagan-for-Stevens substitution would move the Court to the Right in critical areas.  But Kagan’s lack of a real record on these vital questions, by itself, should cause progressives to oppose her nomination.  That’s true for two reasons:

First, given that there are so many excellent candidates who have a long, clear commitment to a progressive judicial philosophy, why would Obama possibly select someone who — at best — is a huge question mark, and who could easily end up as the Democrats’ version of the Bush-41-appointed David Souter, i.e., someone about whom little is known and ends up for decades embracing a judicial philosophy that is the exact opposite of the one the President’s party supports?  As Goldstein wrote of Kagan: 

Are there risks for the left in a Kagan nomination? God yes. The last nominee about whose views we knew so little was David Souter. . . . I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.

Why would any progressive possibly want to take risks like that given how large the stakes are, and given how many other excellent, viable candidates Obama can choose who have a long and clear record?   

This was exactly the argument which conservatives such as David Frum made to force George Bush to withdraw Harriet Miers as his replacement for Sandra Day O’Connor and instead choose Sam Alito.  As Frum put it on PBS during the fight over Miers: 

Stakes are so enormous in this seat.  This is something, as Bill Kristol said, the conservatives have worked for, for a long time. . . . I mean she has been a lawyer for more than three decades. In that time she has never found it necessary to express herself on any of the great issues of the day. . .   Part of what isn’t good enough is for the president to say — although there are lots of conservatives of incredible distinction who have written and published, where the world can know what they think — “I have a secret, I know something and nobody else does. And I’m going to go with my personal knowledge.”

Republicans have been disappointed with that kind of knowledge often before, and although they trust and support this president, he is asking too much.

[It's ironic that the anti-Miers case was grounded in conservatives' refusal to place too much faith and trust in their President's judgment.  Can anyone envision Democrats mounting a serious and sustained campaign against Obama's Supreme Court nominee of the type mounted against Bush by conservatives, whom progressives like to accuse of blind leader/party loyalty?]

Frum’s anti-Miers argument prevailed, and conservatives got what they wanted:  Sam Alito, someone with a long record of advocacy for their judicial philosophy who they knew would be the kind of Justice they wanted for decades to come.  Part of the conservative case against Miers (i.e., that she lacked intellectual heft) is plainly inapplicable to the unquestionably intelligent Kagan, but the bulk of it is directly applicable:  why should progressives who care about the Supreme Court possibly accept someone whose judicial and Constitutional philosophy can barely be discerned? 

When it came time to replace David Souter, Sonia Sotomayor was far from the ideal nominee for many progressives, yet virtually all supported her nomination (as did I, vigorously) because it was clear that she would be essentially the same kind of Justice as Souter, and would thus maintain the Court’s balance.  By contrast, conservatives rightly perceived that replacing O’Connor was a once-in-a-generation opportunity to shape the Court to their beliefs about judicial philosophy, and they thus refused to accept a nominee about whom so little was known.

Under the circumstances that prevail now, why would progressives possibly demand any less?  After all, Obama is now replacing the Justice who has become the leader of the “liberal” wing of the Supreme Court (accepting the dubious premise that there is even is such a thing as a “liberal” wing).  As Scott Lemieux notes, this is the seat which, since 1916, has been held by only three Justices, three of the great progressives Justices in history — Louis Brandeis, William O. Douglas, and Stevens.  Given that, why wouldn’t progressives insist on a nominee whom they know will approach legal questions at least as progressively as Stevens did — or, dare to dream, have a nominee be more progressive than the Justice being replaced, something that hasn’t happened literally in decades?  Acquiescing to a Kagan nomination would mean accepting someone who could easily move well to the Right of Stevens, thus taking the whole Supreme Court with her.

Second, I believe Kagan’s absolute silence over the past decade on the most intense Constitutional controversies speaks very poorly of her.  Many progressives argued (and I certainly agree) that the Bush/Cheney governing template was not merely wrong, but a grave threat to our political system and the rule of law.  It’s not hyperbole to say that it spawned a profound Constitutional crisis. 

Recognizing the severity of this radicalism, numerous legal academicians used their platforms — and created new ones — to protest vocally and relentlessly.  Former OLC official and Georgetown Law Professor Marty Lederman blogged on a virtually daily basis about the extremism and lawlessness of Bush’s policies.  Former Acting OLC Chief and Indiana University Law Professor Dawn Johnsen wrote article after article decrying the lawlessness and demanding greater public outrage.  Georgetown Law Professor Neal Katyal — Kagan’s not-at-all-progressive Deputy Solicitor General — was so appalled by Bush/Cheney extremism that he spent a huge number of hours working pro bono representing Osama bin Laden’s driver all the way to the U.S. Supreme Court, where he succeeded in having Bush’s military commissions declared illegal and the Geneva Conventions held applicable to all detainees — in a decision written by Justice Stevens (and, like Johnsen and Lederman, Katyal has a long record of written analysis on a whole litany of key legal controversies, including vehement opposition to many aspects of the Bush/Cheney assault).

Where was Elena Kagan during all of this?  Why is it seemingly impossible to find even a single utterance from her during the last decade regarding the radical theories of executive power the Bush administration invoked to commit grave crimes and other abuses?  It’s possible that she said something at some point, but many hours of research (and public inquiries) have revealed nothing — other than when she endorsed the core Bush template during her Solicitor General confirmation hearing.   As Adam Liptak put it in The New York Times when she was nominated last year for Solicitor General:  “she has provided few clues about where she stands on the great legal issues of the day, notably the Bush administration’s broad assertions of unilateral executive power in areas like detention, surveillance, interrogation and rendition.”  The Boston Globe similarly pointed out that she “has had little to say about the legal and political issues related to presidential power that have emerged as a result of Bush’s efforts to combat terrorism.”  

Given the severity of the crisis posed by Bush/Cheney lawlessness, what justifies someone with Kagan’s platform — Dean of Harvard Law School and former Clinton White House lawyer — remaining utterly silent in the face of that assault?  Even if one believes that a Law School Dean should generally be attentive to institution-building, didn’t the severity of the legal crisis spawned by Bush and Cheney merit serious opposition from those in a position to voice it?  Before any progressive considers supporting her nomination to the Court, shouldn’t they be able to point to some evidence, somewhere, that she opposed the core claims used to prop up the Bush/Cheney assault on the Constitution and the rule of law?

* * * * * 

The sparse record of Kagan’s views

Beyond the disturbing risks posed by Kagan’s strange silence on most key legal questions, there are serious red flags raised by what little there is to examine in her record.  I’ve written twice before about that record — here (last paragraph) and here — and won’t repeat those points.  Among the most disturbing aspects is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with Lindsey Graham about the rightness of the core Bush/Cheney Terrorism template:  namely, that the entire world is a “battlefield,” that “war” is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that “battlefield” (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an “enemy combatant.” 

Those views, along with her steadfast work as Solicitor General defending the Bush/Cheney approach to executive power, have caused even the farthest Right elements — from Bill Kristol to former Bush OLC lawyer Ed Whelan — to praise her rather lavishly.  Contrast all of that with Justice Stevens’ unbroken record of opposing Bush’s sweeping claims of executive power every chance he got, at times even more vigorously than the rest of the Court’s “liberal wing,” and the risks of a Kagan nomination are self-evident.

The only other real glimpse into Kagan’s judicial philosophy and views of executive power came in a June, 2001 Harvard Law Review article (.pdf), in which she defended Bill Clinton’s then-unprecedented attempt to control administrative agencies by expanding a variety of tools of presidential power that were originally created by the Reagan administration (some of which Kagan helped build while working in the Clinton White House), all as a means of overcoming a GOP-controlled Congress.  This view that it is the President rather than Congress with primary control over administrative agencies became known, before it was distorted by the Bush era, as the theory of the “unitary executive.”  I don’t want to over-simplify this issue or draw too much importance from it; what Kagan was defending back then was many universes away from what Bush/Cheney ended up doing, and her defense of Clinton’s theories of administrative power was nuanced, complex and explicitly cognizant of the Constitutional questions they might raise.

Still, the questions she was addressing were the crux of the debate back then over the proper limits of executive authority, and the view she advocated was clearly one that advocated far more executive power than had been previously accepted.  Kagan’s 2001 law review article is what led to this from The Boston Globe when Kagan was nominated for Solicitor General:

She is certainly a fan of presidential power,” said William F. West, a professor who specializes in federal administration at the Bush School of Government and Public Service at Texas A&M.

Similarly — and very revealingly — even the moderate Neal Katyal, now Kagan’s Deputy, emphatically criticized Kagan’s theories in that law review article as executive overreach and even linked them to the Bush/Cheney executive power seizures.  Katyal wrote in a June, 2006 article in The Yale Law Journal (.pdf; emphasis added):

Such claims of executive power are not limited to the current administration, nor are they limited to politicians.  Take, for example, Dean Elena Kagan’s rich celebration of presidential administration.  Kagan, herself a former political appointee, lauded the President’s ability to trump bureaucracy. Anticipating the claims of the current administration, Kagan argued that the President’s ability to overrule bureaucrats “energize[s] regulatory policy” because only “the President has the ability to effect comprehensive, coherent change in administrative policymaking” . . . .

Assaulted by political forces, the modern agency is a stew of presidential loyalists and relatively powerless career officials. To this political assault comes an academic one as well, with luminaries such as Elena Kagan celebrating presidential administration an unitary executivists explaining why such theories are part of our constitutional design. This vision may work in eras of divided government, but it fails to control power the rest of the time.

As Katyal noted, Kagan relied upon the warning from Alexander Hamilton about a “feeble executive” that was beloved by Bush/Cheney legal theorists, and she hailed “strong, executive vigor.”  On the legal spectrum, Kagan clearly sits on the end of strong assertions of executive authority — perhaps on the far end, almost certainly much further than where Stevens falls.  It’s perhaps unsurprising that a President — such as Barack Obama — would want someone on the Supreme Court who is quite deferential to executive authority.  But given that so many of the most important legal and Constitutional disputes center on the proper limits of executive power (including ones that remain to be decided from the Bush era), and that Kagan and her rulings will likely long outlast an Obama presidency (i.e., any pro-executive-power decisions she issues will apply to future George Bushes and Dick Cheneys), shouldn’t these pro-executive-power views, by themselves, prompt serious reservations (if not outright opposition) among progressives?

Kagan’s record on social issues will likely be perfectly satisfactory, even pleasing, to most progressives.  She is, by all appearances, solidly pro-choice and in favor of gay equality.  But even on domestic issues, serious questions have been raised about how progressive her views actually are, as exemplified by this New York Times profile from Eric Lichtblau last year examining Kagan’s prospects as a Supreme Court nominee:

“I want a Brennan or a Marshall, someone clearly on the liberal side,” said Michael Ratner, president of the Center for Constitutional Rights, referring to liberal court icons William J. Brennan and Thurgood Marshall.

I don’t think Kagan is at that end of the liberal spectrum,” said Mr. Ratner, whose nonprofit legal group has helped lead the push for greater legal protections for prisoners at Guantánamo Bay. “Why they would put someone in who might not be a liberal anchor for the court is really bothersome, and I don’t see Kagan playing that role” . . . ..

Ms. Kagan first gained high-level notice as an aide in the Clinton White House, first as an associate counsel and then as deputy director of the Domestic Policy Council, working on issues like tobacco regulation, welfare reform, education, hate crimes and affirmative action.

There were some important issues on which Elena took centrist or even center-right positions, but it was never clear whether she was pressing her own views or merely carrying water for her boss on the Domestic Policy Council, Bruce Reed,” said Christopher Edley Jr., who worked with Ms. Kagan at the White House and is now dean of the law school at the University of California, Berkeley.

And even on the issues where she has been impressive — such as her refusal to allow military recruiters to recruit at Harvard Law School due to their anti-gay discrimination — her record is ultimately rather muddled.  After preening around for years justifying her ban on military recruiters by decrying the military’s ban on gays as “a profound wrong — a moral injustice of the first order,” she quickly reversed that policy and allowed military recruiters onto campus after the Federal Government threatened to withhold several hundred million dollars in funds to Harvard (out of a $60 billion endowment).  One can reasonably argue that her obligation as Dean was to secure that funding for the school, but one can also reasonably question what it says about a person’s character when they are willing to flamboyantly fight against “profound wrongs” and “moral injustices of the first order” — only as long as there is no cost involved.

What makes the prospect of a Kagan nomination so disappointing is that there are so many superior alternatives — from the moderately liberal and brilliant 7th Circuit Judge Diane Wood and former Georgia Supreme Court Chief Justice Leah Ward Sears to the genuinely liberal Harold Koh (former Yale Law School Dean and current State Department counselor) and Stanford Law Professor Pam Karlan.  If progressives aren’t willing to fight Obama for the Supreme Court, what are they willing to fight him for?

* * * * *

Most of the research presented here was done by Daniel Novack, a second-year law student at NYU School of Law.  Novack, who works with me on many posts I write, also contributed several substantive points.

© 2010 Salon.com

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.

The death of Dawn Johnsen’s nomination April 11, 2010

Posted by rogerhollander in Barack Obama, Criminal Justice, Torture.
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Friday, Apr 9, 2010 15:10 EDT

By Glenn Greenwald

(updated below – Update II)

After waiting 14 months for a confirmation vote that never came, Dawn Johnsen withdrew today as President Obama’s nominee to head the Office of Legal Counsel.  As I documented at length when the nomination was first announced in January, 2009, Johnsen was an absolutely superb pick to head an office that plays as vital a role as any in determining the President’s record on civil liberties and adherence to the rule of law.  With 59 and then 60 Democratic votes in the Senate all year long (which included the support of GOP Sen. Richard Lugar, though the opposition of Dem. Sen. Ben Nelson and shifting positions from Arlen Specter), it’s difficult to understand why the White House — if it really wanted to — could not have had Johnsen confirmed (or why she at least wasn’t included in the spate of recently announced recess appointments). 

I don’t know the real story behind what happened here — I had an email exchange with Johnsen this afternoon but she was only willing to provide me her official, pro forma, wholly uninformative statement — but here’s what I do know:  virtually everything that Dawn Johnsen said about executive power, secrecy, the rule of law and accountability for past crimes made her an excellent fit for what Candidate Obama said he would do, but an awful fit for what President Obama has done.  To see how true that is, one can see the post I wrote last January detailing and praising her past writings, but all one really has to do is to read the last paragraph of her March, 2008 Slate article — entitled “Restoring Our Nation’s Honor” — in which she outlines what the next President must do in the wake of Bush lawlessness:

The question how we restore our nation’s honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. . . .

Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.

 

What Johnsen insists must not be done reads like a manual of what Barack Obama ended up doing and continues to do — from supporting retroactive immunity to terminate FISA litigations to endless assertions of “state secrecy” in order to block courts from adjudicating Bush crimes to suppressing torture photos on the ground that “opennees will empower terrorists” to the overarching Obama dictate that we “simply move on.”  Could she have described any more perfectly what Obama would end up doing when she wrote, in March, 2008, what the next President “must not do”?

I find it virtually impossible to imagine Dawn Johnsen opining that the President has the legal authority to order American citizens assassinated with no due process or to detain people indefinitely with no charges.  I find it hard to believe that the Dawn Johnsen who wrote in 2008 that “we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power” would stand by quietly and watch the Obama administration adopt the core Bush/Cheney approach to civil liberties and Terrorism.  I find it impossible to envision her sanctioning the ongoing refusal of the DOJ to withdraw the January, 2006 Bush/Cheney White Paper that justified illegal surveillance with obscenely broad theories of executive power.  I don’t know why her nomination was left to die, but I do know that her beliefs are quite antithetical to what this administration is doing.

UPDATE:  ABC News‘ Jake Tapper quotes an anonymous “Senate Democratic leadership source” regarding a Senate vote to confirm Johnsen:  “Bottom line is that it was going to be close.  If they wanted to, the White House could have pushed for a vote. But they didn’t want to ’cause they didn’t have the stomach for the debate.”  Take that anonymous quote for what it’s worth, but what is clear is that they were very close to having the votes last year if they did not in fact have them (when the Senate had 60 Democrats plus Lugar’s support) and, in any event, could have included her among last month’s recess appointments.  Had there been real desire to secure her confirmation, it seems likely it would have happened; at the very least, a far greater effort would have been made.

UPDATE II:  Dave Weigel, now of The Washington Post, becomes the latest to observe the core similarity between the Obama and Bush/Cheney approaches to civil liberties, Terrorism and national security.  If you were Barack Obama and were pursuing the policies that he ended up pursuing, would you want Dawn Johnsen in charge of the office which determines the scope of your legal authority as President?

 

Backlash grows against Obama’s preventive detention proposal May 25, 2009

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Uncategorized.
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Glenn Greenwald
www.salon.com, May 25, 2009
(updated below - Update, Update II )
The backlash against President Obama’s extraordinary proposal for indefinite “preventive detention” — already widespread in the immediate aftermath of his speech — continues to grow.  On Friday, Sen. Russ Feingold sent a letter (.pdf) to Obama which, while praising some aspects of his speech, vowed to hold hearings on his detention proposal, and in the letter, Feingold rather emphatically highlighted the radical and dangerous aspects of Obama’s approach:

My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional.
While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world.  It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.
You have discussed this possibility only in the context of the current detainees at Guantanamo Bay, yet we must be aware of the precedent that such a system would establish. While the handling of these detainees by the Bush Administration was particularly egregious, from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security. Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional issues.

Feingold’s last point — that the more Obama embraces radical Bush/Cheney polices, the more entrenched they become as bipartisan consensus — is critically important, and extends to other policies as well, from the use of state secrets to block judicial review of executive branch lawbreaking, the concealment of evidence of government crimes, the veneration of “looking-forward political harmony” over the rule of law in cases of extreme government lawbreaking, and the denial of habeas corpus rights to individuals we abduct and transport to a war zone (such as Bagram).
On Twitter on Friday, Rachel Maddow pointed to the civil liberties questionnaire from Charlie Savage which Obama answered during the Democratic primary and asked rhetorically:  “This is the same guy now proposing ‘prolonged detention’ without trial?”  The New York Times‘ William Glaberson wrote that Obama’s detention policy “would be a departure from the way this country sees itself”; observed that “in some countries, it is called ‘administrative detention,’ a designation with a slightly totalitarian ring”; and quoted the Center for Constitutional Rights’ Michael Ratner as pointing out that “holding detainees domestically under a new system of preventive detention would simply ‘move Guantánamo to a new location and give it a new name.’”  And on Meet the Press this Sunday, the same bizarre (though entirely understandable) pattern continued to assert itself whereby the hardest-core followers of George Bush can barely contain their admiration for Obama’s “counter-terrorism” policies (National Review‘s Rich Lowry:  “it’s kind of a funny debate because Obama has embraced the essentials of the Bush counterterrorism program. I think that program worked, I think it’s wise of him to do that and it, it reflects some admirable kind of flexibility and pragmatism”).
It’s a bit difficult to claim that what Obama is proposing is nothing new, nothing out of the ordinary, given that his own White House Counsel just last February told The New Yorker‘s Jane Mayer that it would be “hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law.”  As acknowledged by two of the leading proponents of preventive detention — Bush OLC lawyer Jack Goldsmith and Obama’s Deputy Solicitor General Neal Katyal — the real purpose of preventive detention (contrary to what some are arguing) is not to classify and treat all detainees as “prisoners of war” (since some of them, by Obama’s own description, will get trials in real courts and others in military commissions), but rather, to give “the government an overwhelming incentive to use trials only when it is certain to win convictions and long sentences, and to place the rest in whatever detention system it creates” (h/t EJ).  I defy anyone to re-read that description of what this “preventive detention” system does and then claim that what is being described is a “justice system” in any meaningful sense of that term.
* * * * * 
On Friday, I spoke with the ACLU’s Ben Wizner about these issues and the transcript is here.
 
UPDATE:  In this morning’s New York Times, the aforementioned Charlie Savage examines Obama’s choice to replace David Souter on the Supreme Court in the context of executive power, noting that while Obama has rejected some of the most extreme Bush legal theories, his embrace of many of the same policies — denial of habeas rights at Bagram, revised military commissions, preventive detention — places Obama on what Savage called “his own collision course with the court.”
As Savage notes, Souter was a very reliable vote in favor of placing some limits on Bush’s executive power assertions (which were almost invariably 5-4 decisions against Bush).  Thus, replacing Souter with a justice who is more receptive to broad claims of executive power could shift the balance of the court on these questions.  
Savage examines the record, which reveals that one leading candidate — Seventh Circuit Court of Appeals Judge Diane Wood — has some very impressive past statements that demonstrate her recognition of the need to impose real limits on executive power, including what would appear to be her opposition to Obama’s just-announced plan for military commissions (“‘the principle is well established that extraordinary tribunals, such as military commissions, are not authorized to operate if the normal courts are open for business,’ [Wood] wrote”).  By contrast, Obama’s Solicitor General — Elena Kagan — has, as Law Professor Darren Hutchinson also documents, repeatedly endorsed broad theories of executive power of the type that would fit in nicely with Bush’s OLC circa 2004.
That Obama may be motivated to seek out a Justice with much more permissive views of executive power than those to which the Bush-41-appointed Souter subscribed — all in order to ensure that the Court approves of his “counter-terrorism” policies — simply underscores the irony of what Obama is doing in this area.
 
UPDATE II:  When he introduced his proposal for preventive detention during  Thursday’s speech, Obama said he wants to “work with Congress to develop an appropriate legal regime, that our efforts are consistent with all values and our Constitution.”  But as CQ reports today (h/t EJ), key members of his own party are baffled by how any such preventive detention system could ever possibly be consistent with the Constitution:

President Obama may not get a lot of help from Congress in designing the detention system he says he wants: something that can hold people who haven’t committed any terrorists acts, but probably will, in a way that’s consistent with the Constitution.
So far, congressional Democrats have no idea how he can do that — which pretty much leaves him with the burden of figuring it out himself. . . .
The problem is, the congressional Democrats he’d consult on the issue don’t seem to have any suggestions for Obama on how to detain potentially dangerous people without violating the Constitution.
“I don’t know,” said House Judiciary Chairman John Conyers Jr. of Michigan, who would be likely to be involved in any discussions between Obama and Congress. . . .
Democratic Rep. Jim McGovern of Massachusetts gave Obama “credit for taking the issue on in a straightforward way,” but said only that “I’d be interested to see what he’s proposing” on a constitutional system of preventive detention. “Maybe he’s a smarter man than I,” McGovern said, but “I can’t think of a system that fits within the Constitution” . . . .
“That was one of the troubling moments in his speech, which was generally very strong on the rule of law,” said Sarah Mendelson, director of the Human Rights and Security Program at the Center for Strategic and International Studies. “Either you have committed a crime, and we’re prosecuting you, or you haven’t. I know there’s no silver bullet, believe me, but I think he’s got some mixed messages.”

If incarcerating people with no charges and no trial indefinitely — while making clear that the imprisonment will likely last decades — isn’t unconstitutional, then it’s hard to imagine what would be.
 
 

 

Backlash grows against Obama’s preventive detention proposal May 25, 2009

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice.
Tags: , , , , , , , , , , , , , , , , , , , , , , , , , ,
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Glenn Greenwald

www.salon.com, May 25, 2009

(updated below - Update II)

The backlash against President Obama’s extraordinary proposal for indefinite “preventive detention” — already widespread in the immediate aftermath of his speech — continues to grow.  On Friday, Sen. Russ Feingold sent a letter (.pdf) to Obama which, while praising some aspects of his speech, vowed to hold hearings on his detention proposal, and in the letter, Feingold rather emphatically highlighted the radical and dangerous aspects of Obama’s approach:

My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional.

While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world.  It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.

You have discussed this possibility only in the context of the current detainees at Guantanamo Bay, yet we must be aware of the precedent that such a system would establish. While the handling of these detainees by the Bush Administration was particularly egregious, from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security. Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional issues.

Feingold’s last point — that the more Obama embraces radical Bush/Cheney polices, the more entrenched they become as bipartisan consensus — is critically important, and extends to other policies as well, from the use of state secrets to block judicial review of executive branch lawbreaking, the concealment of evidence of government crimes, the veneration of “looking-forward political harmony” over the rule of law in cases of extreme government lawbreaking, and the denial of habeas corpus rights to individuals we abduct and transport to a war zone (such as Bagram).

On Twitter on Friday, Rachel Maddow pointed to the civil liberties questionnaire from Charlie Savage which Obama answered during the Democratic primary and asked rhetorically:  “This is the same guy now proposing ‘prolonged detention’ without trial?”  The New York Times‘ William Glaberson wrote that Obama’s detention policy “would be a departure from the way this country sees itself”; observed that “in some countries, it is called ‘administrative detention,’ a designation with a slightly totalitarian ring”; and quoted the Center for Constitutional Rights’ Michael Ratner as pointing out that “holding detainees domestically under a new system of preventive detention would simply ‘move Guantánamo to a new location and give it a new name.’”  And on Meet the Press this Sunday, the same bizarre (though entirely understandable) pattern continued to assert itself whereby the hardest-core followers of George Bush can barely contain their admiration for Obama’s “counter-terrorism” policies (National Review‘s Rich Lowry:  “it’s kind of a funny debate because Obama has embraced the essentials of the Bush counterterrorism program. I think that program worked, I think it’s wise of him to do that and it, it reflects some admirable kind of flexibility and pragmatism”).

It’s a bit difficult to claim that what Obama is proposing is nothing new, nothing out of the ordinary, given that his own White House Counsel just last February told The New Yorker‘s Jane Mayer that it would be “hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law.”  As acknowledged by two of the leading proponents of preventive detention — Bush OLC lawyer Jack Goldsmith and Obama’s Deputy Solicitor General Neal Katyal — the real purpose of preventive detention (contrary to what some are arguing) is not to classify and treat all detainees as “prisoners of war” (since some of them, by Obama’s own description, will get trials in real courts and others in military commissions), but rather, to give “the government an overwhelming incentive to use trials only when it is certain to win convictions and long sentences, and to place the rest in whatever detention system it creates” (h/t EJ).  I defy anyone to re-read that description of what this “preventive detention” system does and then claim that what is being described is a “justice system” in any meaningful sense of that term.

* * * * * 

On Friday, I spoke with the ACLU’s Ben Wizner about these issues and the transcript is here.

 

UPDATE:  In this morning’s New York Times, the aforementioned Charlie Savage examines Obama’s choice to replace David Souter on the Supreme Court in the context of executive power, noting that while Obama has rejected some of the most extreme Bush legal theories, his embrace of many of the same policies — denial of habeas rights at Bagram, revised military commissions, preventive detention — places Obama on what Savage called “his own collision course with the court.”

As Savage notes, Souter was a very reliable vote in favor of placing some limits on Bush’s executive power assertions (which were almost invariably 5-4 decisions against Bush).  Thus, replacing Souter with a justice who is more receptive to broad claims of executive power could shift the balance of the court on these questions.  

Savage examines the record, which reveals that one leading candidate — Seventh Circuit Court of Appeals Judge Diane Wood — has some very impressive past statements that demonstrate her recognition of the need to impose real limits on executive power, including what would appear to be her opposition to Obama’s just-announced plan for military commissions (“‘the principle is well established that extraordinary tribunals, such as military commissions, are not authorized to operate if the normal courts are open for business,’ [Wood] wrote”).  By contrast, Obama’s Solicitor General — Elena Kagan — has, as Law Professor Darren Hutchinson also documents, repeatedly endorsed broad theories of executive power of the type that would fit in nicely with Bush’s OLC circa 2004.

That Obama may be motivated to seek out a Justice with much more permissive views of executive power than those to which the Bush-41-appointed Souter subscribed — all in order to ensure that the Court approves of his “counter-terrorism” policies — simply underscores the irony of what Obama is doing in this area.

 

UPDATE II:  When he introduced his proposal for preventive detention during  Thursday’s speech, Obama said he wants to “work with Congress to develop an appropriate legal regime, that our efforts are consistent with all values and our Constitution.”  But as CQ reports today (h/t EJ), key members of his own party are baffled by how any such preventive detention system could ever possibly be consistent with the Constitution:

President Obama may not get a lot of help from Congress in designing the detention system he says he wants: something that can hold people who haven’t committed any terrorists acts, but probably will, in a way that’s consistent with the Constitution.

So far, congressional Democrats have no idea how he can do that — which pretty much leaves him with the burden of figuring it out himself. . . .

The problem is, the congressional Democrats he’d consult on the issue don’t seem to have any suggestions for Obama on how to detain potentially dangerous people without violating the Constitution.

“I don’t know,” said House Judiciary Chairman John Conyers Jr. of Michigan, who would be likely to be involved in any discussions between Obama and Congress. . . .

Democratic Rep. Jim McGovern of Massachusetts gave Obama “credit for taking the issue on in a straightforward way,” but said only that “I’d be interested to see what he’s proposing” on a constitutional system of preventive detention. “Maybe he’s a smarter man than I,” McGovern said, but “I can’t think of a system that fits within the Constitution” . . . .

“That was one of the troubling moments in his speech, which was generally very strong on the rule of law,” said Sarah Mendelson, director of the Human Rights and Security Program at the Center for Strategic and International Studies. “Either you have committed a crime, and we’re prosecuting you, or you haven’t. I know there’s no silver bullet, believe me, but I think he’s got some mixed messages.”

If incarcerating people with no charges and no trial indefinitely — while making clear that the imprisonment will likely last decades — isn’t unconstitutional, then it’s hard to imagine what would be.

100 Days to Restore the Constitution: Assessment April 29, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, Iraq and Afghanistan, Torture, War.
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100-days-header_overview

For an excellent summary of the pros (almost none) and cons (way too many) of the Obama Administration’s actions or lack thereof with respect to constitutional issues, I highly recommend the following assessment compiled by the Center for Constitutional Rights:

http://ccrjustice.org/100daysassessment

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