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Obama: A GOP President Should Have Rules Limiting the Kill List November 27, 2012

Posted by rogerhollander in Barack Obama, Civil Liberties, Constitution, Criminal Justice, Democracy, Pakistan, War, War on Terror.
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Roger’s note: No one says it better than Glenn Greenwald.

Published on Tuesday, November 27, 2012 by The Guardian/UK

The president’s flattering view of himself reflects the political sentiments in his party and the citizenry generally

  by  Glenn Greenwald

For the last four years, Barack Obama has not only asserted, but aggressively exercised, the power to target for execution anyone he wants, including US citizens, anywhere in the world. He has vigorously resisted not only legal limits on this assassination power, but even efforts to bring some minimal transparency to the execution orders he issues.

Mitt Romney and Barack Obama during the second US presidential debate. (Photograph: Mike Segar/Reuters)

This claimed power has resulted in four straight years of air bombings in multiple Muslim countries in which no war has been declared – using drones, cruise missiles and cluster bombs – ending the lives of more than 2,500 people, almost always far away from any actual battlefield. They are typically targeted while riding in cars, at work, at home, and while even rescuing or attending funerals for others whom Obama has targeted. A substantial portion of those whom he has killed – at the very least – have been civilians, including dozens of children.

Worse still, his administration has worked to ensure that this power is subject to the fewest constraints possible. This was accomplished first by advocating the vague, sweeping Bush/Cheney interpretation of the 2001 Authorization to Use Military Force (AUMF) – whereby the President can target not only the groups which perpetrated the 9/11 attack (as the AUMF provides) but also those he claims are “associated” which such groups, and can target not only members of such groups (as the AUMF states) but also individuals he claims provide “substantial support” to those groups. Obama then entrenched these broad theories by signing into law the 2011 National Defense Authorization Act, which permanently codified those Bush/Cheney interpretation of these war powers.

From the start, Obama officials have also ensured that these powers have no physical limits, as they unequivocally embraced what was once the core and highly controversial precept of Bush/Cheney radicalism: that the US is fighting a “global war” in which the “whole world is a battlefield”, which means there are no geographical constraints to the president’s war powers. In sum, we have had four straight years of a president who has wielded what is literally the most extreme and tyrannical power a government can claim – to execute anyone the leader wants, even his own citizens, in total secrecy and without a whiff of due process – and who has resisted all efforts to impose a framework of limits or even transparency.

But finally, according to a new article on Sunday by The New York Times’ Scott Shane, President Obama was recently convinced that some limits and a real legal framework might be needed to govern the exercise of this assassination power. What was it that prompted Obama finally to reach this conclusion? It was the fear that he might lose the election, which meant that a Big, Bad Republican would wield these powers, rather than a benevolent, trustworthy, noble Democrat – i.e., himself [emphasis added]:

“Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials. . . .

“The matter may have lost some urgency after Nov. 6. But . . . Mr. Obama and his advisers are still debating whether remote-control killing should be a measure of last resort against imminent threats to the United States, or a more flexible tool, available to help allied governments attack their enemies or to prevent militants from controlling territory. . . .

For years before the Sept. 11, 2001, attacks, the United States routinely condemned targeted killings of suspected terrorists by Israel, and most countries still object to such measures.

“But since the first targeted killing by the United States in 2002, two administrations have taken the position that the United States is at war with Al Qaeda and its allies and can legally defend itself by striking its enemies wherever they are found.

“Partly because United Nations officials know that the United States is setting a legal and ethical precedent for other countries developing armed drones, the U.N. plans to open a unit in Geneva early next year to investigate American drone strikes. . . .

“The attempt to write a formal rule book for targeted killing began last summer after news reports on the drone program, started under President George W. Bush and expanded by Mr. Obama, revealed some details of the president’s role in the shifting procedures for compiling ‘kill lists’ and approving strikes. Though national security officials insist that the process is meticulous and lawful, the president and top aides believe it should be institutionalized, a course of action that seemed particularly urgent when it appeared that Mitt Romney might win the presidency.

“‘There was concern that the levers might no longer be in our hands,’ said one official, speaking on condition of anonymity. With a continuing debate about the proper limits of drone strikes, Mr. Obama did not want to leave an ‘amorphous’ program to his successor, the official said. The effort, which would have been rushed to completion by January had Mr. Romney won, will now be finished at a more leisurely pace, the official said.”

Now that Obama rather than Romney won, such rules will be developed “at a more leisurely pace”. Despite Obama’s suggestion that it might be good if even he had some legal framework in which to operate, he’s been in no rush to subject himself to any such rules in four full years of killing thousands of people. This makes it safe to assume that by “a more leisurely pace”, this anonymous Obama official means: “never”.

There are many important points raised by this report: Kevin Gosztola and Marcy Wheeler, among others, have done their typically excellent job of discussing some of them, while this Guardian article from Sunday reports on the reaction of the ACLU and others to the typical Obama manipulation of secrecy powers on display here (as usual, these matters are too secret to permit any FOIA disclosure or judicial scrutiny, but Obama officials are free to selectively leak what they want us to know to the front page of the New York Times). I want to focus on one key point highlighted by all of this:

Democratic Party benevolence

The hubris and self-regard driving this is stunning – but also quite typical of Democratic thinking generally in the Obama era. The premise here is as self-evident as it is repellent:

I’m a Good Democrat and a benevolent leader; therefore, no limits, oversight, checks and balances, legal or Constitutional constraints, transparency or due process are necessary for me to exercise even the most awesome powers, such as ordering people executed. Because of my inherent Goodness and proven progressive wisdom, I can be trusted to wield these unlimited powers unilaterally and in the dark.

Things like checks, oversight and due process are desperately needed only for Republicans, because – unlike me – those people are malevolent and therefore might abuse these powers and thus shouldn’t be trusted with absolute, unchecked authority. They – but not I – urgently need restrictions on their powers.

This mentality is not only the animating belief of President Obama, but also the sizable portion of American Democrats which adores him.

There are many reasons why so many self-identified progressives in the US have so radically changed their posture on these issues when Barack Obama replaced George W. Bush. Those include (a) the subordination of all ostensible beliefs to their hunger for partisan power; (b) they never actually believed these claimed principles in the first place but only advocated them for partisan opportunism, i.e., as a way to discredit the GOP President; and (c) they are now convinced that these abuses will only be used against Muslims and, consumed by self-interest, they concluded that these abuses are not worth caring about because it only affects Others (this is the non-Muslim privilege enjoyed by most US progressives, which shields them from ever being targeted, so they simply do not care; the more honest ones of this type even admit this motivation).

But the primary reason for this fundamental change in posture is that they genuinely share the self-glorifying worldview driving Obama here. The core premise is that the political world is shaped by a clean battle of Good v. Evil. The side of Good is the Democratic Party; the side of Evil is the GOP. All political truths are ascertainable through this Manichean prism.

This is the simplistic, self-flattering morality narrative that gets reinforced for them over and over as they sit for hours every day having their assumptions flattered and validated (and never questioned or challenged) by watching MSNBC, reading pro-Obama blogs that regularly churn out paeans to his greatness, and drinking up the hundreds of millions of dollars of expertly crafted election-year propaganda from the Party that peddles this Justice League cartoon.

The result is that, for so many, it is genuinely inconceivable that a leader as noble, kind and wise as Barack Obama would abuse his assassination and detention powers. It isn’t just rank partisan opportunism or privilege that leads them not to object to Obama’s embrace of these radical powers and the dangerous theories that shield those powers from checks or scrutiny. It’s that they sincerely admire him as a leader and a man so much that they believe in their heart (like Obama himself obviously believes) that due process, checks and transparency are not necessary when he wields these powers. Unlike when a GOP villain is empowered, Obama’s Goodness and his wisdom are the only safeguards we need.

Thus, when Obama orders someone killed, no due process is necessary and we don’t need to see any evidence of their guilt; we can (and do) just assume that the targeted person is a Terrorist and deserves death because Obama has decreed this to be so. When Obama orders a person to remain indefinitely in a cage without any charges or any opportunity to contest the validity of the imprisonment, that’s unobjectionable because the person must be a Terrorist or otherwise dangerous – or else Obama wouldn’t order him imprisoned. We don’t need proof, or disclosed evidence, or due process to determine the validity of these accusations; that it is Obama making these decisions is all the assurance we need because we trust him.

Similar sentiments shaping the Bush era

This mindset is so recognizable because it is also what drove Bush followers for years as they defended his seizures of unchecked authority and secrecy powers. Those who spent years arguing against the Bush/Cheney seizure of extremist powers always confronted this mentality at bottom, once the pseudo-intellectual justifications were debunked: George Bush is a Good man and a noble leader who can be trusted to exercise these powers in secret and with no checks, because he only wants to keep us safe and will only target the Terrorists.

Molded by exactly the same species of drooling presidential hagiography now so prevalent in progressive circles – compare this from the Bush era to things like this and this – conservatives believed that Bush was a good man and a great leader and thus needed no safeguards or transparency. If Bush wanted to eavesdrop on someone, or wanted to imprison someone, then – solely by virtue of his decree – we could and should assume the person was a Terrorist, or at least there was ample evidence to believe he was.

We were graced with a leader we could trust to exercise unlimited war powers in the dark. This is precisely the same mentality applied by Democrats (and by Obama himself) to the current President, except it not only justifies due-process-free eavesdropping and detention but also execution.

Faith v. reason and evidence

It is, for several reasons, extraordinary that so many citizens have been successfully trained to so venerate their Party’s leaders that they literally believe no checks or transparency are necessary, even as those leaders wield the most extremist powers: executing people, bombing multiple countries, imprisoning people with no charges, mass monitoring and surveilling of entire communities.

For one, there is ample evidence that virtually every leader of both major parties over the last century systematically abused these powers because they were able to exercise them in the dark. It was this discovery by the Church Committee that led to the reforms of the mid-1970s – reforms grounded in the premise that virtually all leaders, by virtue of human nature, will inevitably abuse these powers, exercise them for ignoble ends, if they operate without serious restraints and oversight. One has to ignore all of this historic evidence in order to place trust in any particular leader to exercise these powers without checks.

Then there is all the specific evidence of all the post-9/11 abuses. Over the last decade, the US government – under both parties – has repeatedly accused people of being Terrorists and punished them as Terrorists who were nothing of the sort. Whether due to gross error or more corrupt motives, the Executive Branch and its various intelligence and military agencies have proven beyond any reasonable doubt that their mere accusation that someone is a Terrorist – unproven with evidence and untested by any independent tribunal – is definitively unreliable.

Even beyond that, it is well-documented that the US government, under Obama, often targets people for death when they don’t even know the identity of the person they’re trying to kill. From the Sunday New York Times article:

“Then there is the matter of strikes against people whose identities are unknown. In an online video chat in January, Mr. Obama spoke of the strikes in Pakistan as ‘a targeted, focused effort at people who are on a list of active terrorists.’ But for several years, first in Pakistan and later in Yemen, in addition to ‘personality strikes’ against named terrorists, the CIA and the military have carried out ‘signature strikes’ against groups of suspected, unknown militants.

“Originally that term was used to suggest the specific ‘signature’ of a known high-level terrorist, such as his vehicle parked at a meeting place. But the word evolved to mean the ‘signature’ of militants in general – for instance, young men toting arms in an area controlled by extremist groups. Such strikes have prompted the greatest conflict inside the Obama administration, with some officials questioning whether killing unidentified fighters is legally justified or worth the local backlash.”

It is truly staggering to watch citizens assert that their government is killing “Terrorists” when those citizens have no clue who is being killed. But that becomes even more astounding when one realizes that not even the US government knows who they’re killing: they’re just killing anyone whose behavior they think generally tracks the profile of a Terrorist (“young men toting arms in an area controlled by extremist groups”). And, of course, the Obama administration has re-defined “militant” to mean “all military-age males in a strike zone” – reflecting their propagandistic sloganeering that they are killing Terrorists even when they, in fact, have no idea who they are killing.

In light of all this evidence, to continue to blindly assume that unproven government accusations of “Terrorist” are tantamount to proof of those accusations is to embrace the type of faith-based trust that lies at the core of religious allegiance and faith in a god, not rational citizenship. Yet over and over, one encounters some form of this dialogue whenever this issue arises:

ARGUMENT: The US government shouldn’t imprison/kill/surveil people without providing evidence of their guilt.

GOVERNMENT-DEFENDING RESPONSE: But these are Terrorists, and they have to be stopped.

OBVIOUS QUESTION: How do you know they’re Terrorists if no evidence of their guilt has been presented and no due process accorded?

Ultimately, the only possible answer to that question – the only explanation for why this definitively authoritarian mentality persists – is because people have been so indoctrinated with the core Goodness of their particular party leader that they disregard all empirical evidence, and their own rational faculties, in order to place their blind faith in the leader they have grown to love and admire (if my leader says someone is a Terrorist, then I believe they are, and I don’t need to see evidence of that).

One can reasonably debate the extent to which democracy requires that some degree of trust be vested in the capabilities and judgment of whichever political leaders one supports. But however far that trust should extend, surely it must stop well before the vesting of the power to imprison and kill in total secrecy, far from any battlefield and without any checks or due process.

Core principles disregarded in lieu of leader-love

The Times article describes the view of Obama that some “drone rules” would be needed to be developed in light of the possibility of Romney’s victory. But at least some such rules already exist: they’re found in these things called “the Constitution” and “the Bill of Rights”, the Fifth Amendment to which provides:

“No person shall be . . . deprived of life, liberty, or property, without due process of law;”

Yet all of that has been tossed aside in lieu of a deeply disturbing and unhealthy faith-based belief that our leader can make these determinations without the need for any such bothersome impediments.

To me, this comment, left in response to a Gawker post from Sunday on the new NYT article, perfectly conveys the sentiment I heard for years in right-wing circles to justify everything Bush did in secret, and is now just as miserably common in progressive circles to justify Obama’s wielding of the same and even greater powers:

“The fact of the matter is that the complexities of security and war go far beyond what those interested in appearing morally superior are willing to concede. It just so happens that a lot of liberals are most interested in the appearance of moral superiority. . . .

“I used to be the exact same way, but then I actually genuinely considered how I would feel if I held the weight of the presidency and these decisions. I have no doubt that most liberals, when presented with that, would act just as Obama has. . . .

“I’m liberal, I’m no fan of war, I’m no fan of Republican fanaticism and thumping America-is-the-best nonsense across the globe. But I can understand why drone strikes might be the most expedient option in a war. Or, perhaps more precisely, can understand just how incapable I am of understanding. And instead of supposing myself worthy of understanding the complexity and therefore offering criticism, I trust those more intelligent than myself. But a lot of my fellow liberals don’t believe there are people more intelligent than themselves. I have no self-loathing of liberals. Its just like a moderate Republican finding the right wing of their party crazy even if they believe in most of the same stuff.”

That’s the Platonic form of authoritarian leader-faith:

I don’t need to know anything; my leader doesn’t need to prove the truth of his accusations; he should punish whomever he wants in total secrecy and without safeguards, and I will assume that he is right to do so (as long as I and others like me are not the ones targeted) because he is superior to me and I place my faith in Him.

Anyone who thinks the leader (when he’s of my party) should have to show proof before killing someone, or allow them due process, is being a childish purist. I used to be like that – until Obama got in office, and now I see how vital it is to trust him and not bother him with all this “due process” fanaticism. That’s what being an adult citizen means: trusting one’s leader the way children trust their parent.

This is the only sentiment that can explain the comfort with allowing Obama (and, before him, Bush) to exercise these extreme powers without checks or transparency. This is exactly the sentiment any Obama critic confronts constantly, even if expressed a bit more subtly and with a bit more dignity.

Ultimately, what is most extraordinary about all of this – most confounding to me – is how violently contrary this mentality is to the ethos with which all Americans are instilled: namely, that the first and most inviolable rule of government is that leaders must not be trusted to exercise powers without constant restraints – without what we’re all taught in elementary school are called “checks and balances”. Here is how Thomas Jefferson expressed this warning in the Kentucky Resolutions of 1798:

“In questions of power…let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

And here is what John Adams said in his 1772 Journal:

“There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty”.

It is literally impossible to conceive of any mindset more at odds with these basic principles than the one that urges that Barack Obama – unlike George Bush or Mitt Romney or whoever the scary GOP villain of the day is – can be trusted to unilaterally and secretly kill or imprison or surveil anyone he wants because he is a Good man and a trustworthy leader and therefore his unproven accusations should be assumed true. But this is, overwhelmingly, the warped and authoritarian sentiment that now prevails in the bulk of the Democratic Party and its self-identified “progressive” faction, just as it did in the GOP and its conservative wing for eight years.

Ultimately, this unhealthy and dangerous trust in one’s own leader – beyond just the normal human desire to follow – is the by-product of over-identifying with the brand-marketed personality of politicians. Many East and West Coast progressives (which is overwhelmingly what Democratic Party opinion leaders are) have been trained to see themselves and the personality traits to which they aspire in Obama (the urbane, sophisticated, erudite Harvard-educated lawyer and devoted father and husband), just as religious conservatives and other types of Republicans were trained to see Bush in that way (the devout evangelical Christian, the brush-clearing, patriotic swaggering cowboy, and devoted father and husband).

Politicians are thus perceived like contestants in a reality TV show: viewers decide who they like personally and who they dislike – but the difference is that these images are bolstered with hundreds of millions of dollars of relentless, sophisticated, highly manipulative propaganda campaigns (there’s a reason the Obama 2008 campaign won multiple branding awards from the advertising and marketing industry). When one is taught to relate to a politician based on a fictitious personal relationship, one comes to place excessive trust in those with whom one identifies (the way one comes to trust, say, a close family member or loved one), and to harbor excessive contempt for those one is trained to see as the villain character. In sum, citizens are being trained to view politicians exactly the way Jefferson warned was so dangerous: “In questions of power…let no more be heard of confidence in man.”

There’s one final irony worth noting in all of this. Political leaders and political movements convinced of their own Goodness are usually those who need greater, not fewer, constraints in the exercise of power. That’s because – like religious True Believers – those who are convinced of their inherent moral superiority can find all manner to justify even the most corrupted acts on the ground that they are justified by the noble ends to which they are put, or are cleansed by the nobility of those perpetrating those acts.

Political factions driven by self-flattering convictions of their own moral superiority – along with their leaders – are the ones most likely to abuse power. Anyone who ever listened to Bush era conservatives knows that this conviction drove them at their core (“you are with us or with the Terrorists”), and it is just as true of Obama-era progressives who genuinely see the political landscape as an overarching battle between forces of Good (Democrats: i.e., themselves) and forces of Evil (Republicans).

Thus should it be completely unsurprising that Obama (and his most ardent followers) genuinely believe that rules are urgently necessary to constrain Republicans from killing whoever they want, but that such urgency ceases to exist when that power rests in the hands of the current benevolent leader. Such a dangerous and perverse mindset is incredibly pervasive in the citizenry, and goes a long way toward explaining why and how the US government has been able to seize the powers it has wielded over the last decade with so little resistance, and with no end in sight.

© 2012 Guardian News and Media Limited

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Glenn Greenwald

Glenn Greenwald is a columnist on civil liberties and US national security issues for the Guardian. A former constitutional lawyer, he was until 2012 a contributing writer at Salon.  His most recent book is, With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful. His other books include: Great American Hypocrites: Toppling the Big Myths of Republican PoliticsA Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism.

Obama fights ban on indefinite detention of Americans August 8, 2012

Posted by rogerhollander in Barack Obama, Civil Liberties, Constitution, Criminal Justice.
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(AFP Photo / Paul J. Richards)

(AFP Photo / Paul J. Richards)

Roger’s note: The phrase “lock ‘em up and throw away the key” used to be used jokingly.  It is no joke what Obama is doing.  This president, who is reputed to be a constitutional scholar, is systematically tramping over the constitution and what is perhaps the most important and precious civil and legal protections, habeas corpus.  Imagine how this precedent will be used under some of the Republican nut cases who are likely to be future presidents.  Frightening.

www.rt.com, August 7, 2012

The White House has filed an appeal in hopes of reversing a federal judge’s ruling that bans the indefinite military detention of Americans because attorneys for the president say they are justified to imprison alleged terrorists without charge.

Manhattan federal court Judge Katherine Forrest ruled in May that the indefinite detention provisions signed into law late last year by US President Barack Obama failed to “pass constitutional muster” and ordered a temporary injunction to keep the military from locking up any person, American or other, over allegations of terrorist ties. On Monday, however, federal prosecutors representing President Obama and Defense Secretary Leon Panetta filed a claim with the 2nd US Circuit Court of Appeals in hopes of eliminating that ban.

The plaintiffs “cannot point to a single example of the military’s detaining anyone for engaging in conduct even remotely similar to the type of expressive activities they allege could lead to detention,” Obama’s attorneys insist. With that, the White House is arguing that as long as the indefinite detention law hasn’t be enforced yet, there is no reason for a judge to invalidate it.

Reuters reports this week that the government believes they are justified to have the authorization to lock alleged belligerents up indefinitely because cases involving militants directly aligned against the good of the US government warrants such punishment. Separate from Judge Forrest’s injunction, nine states have attempted to, at least in part, remove themselves from the indefinite detention provisions of included in the National Defense Authorization Act for Fiscal Year 2012, or NDAA.

In section 1021 of the NDAA, the president’s authority to hold a terrorism suspect “without trial, until the end of the hostilities” is reaffirmed by Congress. Despite an accompanying signing statement voicing his opposition to that provision, President Obama quietly inked his name to the NDAA on December 31, 2011. In May, however, a group of plaintiffs including notable journalists and civil liberty proponents challenged section 1021 in court, leading to Just Forrest to find it unconstitutional one month later.

“There is a strong public interest in protecting rights guaranteed by the First Amendment,” Forrest wrote in her 68-page ruling. “There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention.”

At the time Just Forrest made her injunction, attorney Carl Mayer told RT on behalf of the plaintiffs that, although he expected the White House to appeal, “It may not be in their best interest.”

“[T]here are so many people from all sides of the political spectrum opposed to this law that they ought to just say, ‘We’re not going to appeal,’” Mayer said. “The NDAA cannot be used to pick up Americans in a proverbial black van or in any other way that the administration might decide to try to get people into the military justice system. It means that the government is foreclosed now from engaging in this type of action against the civil liberties of Americans.”

The original plaintiffs, who include Pulitzer Prize-winner Chris Hedges, have asked Just Forrest to make her injunction permanent. Oral arguments in the case are expected to begin this week.

Federal court enjoins NDAA May 16, 2012

Posted by rogerhollander in Civil Liberties, Constitution, Criminal Justice, Democracy.
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ROGER’S NOTE:  THIS IS AN ENCOURAGING DEVELOPMENT; HOWEVER, IF AND WHEN THIS GETS TO THE SUPREME COURT, WE CAN, UNFORTUNATELY, ONLY EXPECT  THAT THE TOTALITARIAN MINDED MAJORITY WILL UPHOLD THE DRACONIAN ELEMENTS OF NDAA.

Wednesday, May 16, 2012 04:14 PM EST

 

An Obama-appointed judge rules its indefinite detention provisions likely violate the 1st and 5th Amendments

By , www.salon.com

President Obama (Credit: AP/Carolyn Kaster)

(updated below)

A federal district judge today, the newly-appointed Katherine Forrest of the Southern District of New York, issued an amazing ruling: one which preliminarily enjoins enforcement of the highly controversial indefinite provisions of the National Defense Authorization Act, enacted by Congress and signed into law by President Obama last December. This afternoon’s ruling came as part of a lawsuit brought by seven dissident plaintiffs — including Chris Hedges, Dan Ellsberg, Noam Chomsky, and Brigitta Jonsdottir — alleging that the NDAA violates ”both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution.”

The ruling was a sweeping victory for the plaintiffs, as it rejected each of the Obama DOJ’s three arguments: (1) because none of the plaintiffs has yet been indefinitely detained, they lack “standing” to challenge the statute; (2) even if they have standing, the lack of imminent enforcement against them renders injunctive relief unnecessary; and (3) the NDAA creates no new detention powers beyond what the 2001 AUMF already provides.

As for the DOJ’s first argument — lack of standing — the court found that the plaintiffs are already suffering substantial injury from the reasonable fear that they could be indefinitely detained under section 1021 of the NDAA as a result of their constitutionally protected activities. As the court explained (h/t Charles Michael):

In support of their motion, Plaintiffs assert that § 1021 already has impacted their associational and expressive activities–and would continue to impact them, and that § 1021 is vague to such an extent that it provokes fear that certain of their associational and expressive activities could subject them to indefinite or prolonged military detention.

The court found that the plaintiffs have “shown an actual fear that their expressive and associational activities” could subject them to indefinite detention under the law,and “each of them has put forward uncontroverted evidence of concrete — non-hypothetical — ways in which the presence of the legislation has already impacted those expressive and associational activities” (as but one example, Hedges presented evidence that his “prior journalistic activities relating to certain organizations such as al-Qaeda and the Taliban” proves “he has a realistic fear that those activities will subject him to detention under § 1021″). Thus, concluded the court, these plaintiffs have the right to challenge the constitutionality of the statute notwithstanding the fact that they have not yet been detained under it; that’s because its broad, menacing detention powers are already harming them and the exercise of their constitutional rights.

Significantly, the court here repeatedly told the DOJ that it could preclude standing for the plaintiffs if they were willing to state clearly that none of the journalistic and free speech conduct that the plaintiffs engage in could subject them to indefinite detention. But the Government refused to make any such representation. Thus, concluded the court, “plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment.”

Independently, the court found that plaintiffs are likely to succeed on their claim that the NDAA violates their Fifth Amendment due process rights because the statute is so vague that it is virtually impossible to know what conduct could subject one to indefinite detention. Specifically, the court focused on the NDAA’s authorization to indefinitely detain not only Al Qaeda members, but also members of so-called “associated forces” and/or anyone who “substantially supports” such forces, and noted:

Plaintiffs have shown a likelihood of success on their vagueness challenge. The terms upon which they focused at the hearing relate to who is a “covered person.” In that regard, plaintiffs took issue with the lack of definition and clarity regarding who constitutes an “associated forces,” and what it means to “substantially” or “directly” “support” such forces or, al-Qaeda or the Taliban. . . .

The Government was unable to define precisely what ”direct” or “substantial” “support” means. . . .Thus, an individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so.

Perhaps most importantly, the court categorically rejected the central defense of this odious bill from the Obama administration and its defenders: namely, that it did nothing more than the 2001 AUMF already did and thus did not really expand the Government’s power of indefinite detention. The court cited three reasons why the NDAA clearly expands the Government’s detention power over the 2001 AUMF (all of which I previously cited when denouncing this bill).

First, “by its terms, the AUMF is tied directly and only to those involved in the events of 9/11,” whereas the NDAA “has a non-specific definition of ‘covered person’ that reaches beyond those involved in the 9/11 attacks by its very terms.” Second, “the individuals or groups at issue in the AUMF are also more specific than those at issue in § 1021″ of the NDAA; that’s because the AUMF covered those “directly involved in the 9/11 attacks while those in § 1021 [of the NDAA] are specific groups and ‘associated forces’.” Moreover, “the Government has not provided a concrete, cognizable set of organizations or individuals that constitute ‘associated forces,’ lending further indefiniteness to § 1021.” Third, the AUMF is much more specific about how one is guilty of “supporting” the covered Terrorist groups, while the NDAA is incredibly broad and un-specific in that regard, thus leading the court to believe that even legitimate activities could subject a person to indefinite detention.

The court also decisively rejected the argument that President Obama’s signing statement – expressing limits on how he intends to exercise the NDAA’s detention powers — solves any of these problems. That’s because, said the court, the signing statement “does not state that § 1021 of the NDAA will not be applied to otherwise-protected First Amendment speech nor does it give concrete definitions to the vague terms used in the statute.”

The court concluded by taking note of what is indeed the extraordinary nature of her ruling, but explained it this way:

This Court is acutely aware that preliminarily enjoining an act of Congress must be done with great caution. However, it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights.

I’ve been very hard on the federal judiciary in the past year due to its shameful, craven deference in the post-9/11 world to executive power and, especially, attempts to prosecute Muslims on Terrorism charges. But this is definitely an exception to that trend. This is an extraordinary and encouraging decision. All the usual caveats apply: this is only a preliminary injunction (though the court made it clear that she believes plaintiffs will ultimately prevail). It will certainly be appealed and can be reversed. There are still other authorities (including the AUMF) which the DOJ can use to assert the power of indefinite detention. Nonetheless, this is a rare and significant limit placed on the U.S. Government’s ability to seize ever-greater powers of detention-without-charges, and it is grounded in exactly the right constitutional principles: ones that federal courts and the Executive Branch have been willfully ignoring for the past decade.

UPDATE: I really should mention the rest of the plaintiffs who brought this lawsuit beyond the four well-known ones I named above, because each deserves immense credit for doing this. Alexa O’Brien is an independent journalist who writes for WL Central, regarding WikiLeaks, Guantanamo and other issues, and founded a website to work on America’s corrupted elections, Day of Rage. Kai Wargalla is a British activist who founded Occupy London and has done extensive work in advocating for WikiLeaks. Jennifer Bolen, who along with Hedges spearheaded the organization of this lawsuit, is an activist with Revolution Truth who did substantial work to defeat the NDAA.

Though I knew a fair amount about it as it proceeded, I hadn’t written about this lawsuit before, largely because I did not expect it to succeed; I anticipated that it would be dismissed on “standing” grounds, the favored tactic (along with the State Secrets privilege) for both the Bush and Obama DOJs to persuade federal courts not to even adjudicate constitutional challenges to the War on Terror powers. Serious kudos to all of the plaintiffs and lawyers here who persevered in what I’m certain they knew would be an uphill battle.

Obama to Use Pension Funds of Ordinary Americans to Pay for Bank Mortgage “Settlement” January 23, 2012

Posted by rogerhollander in Barack Obama, Economic Crisis.
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Roger’s note: more Obama “plus ca change” you can believe in.
Published on Monday, January 23, 2012 by Naked Capalitism

Obama’s latest housing market chicanery should come as no surprise. As we discuss below, he will use the State of the Union address to announce a mortgage “settlement” by Federal regulators, and at least some state attorneys general. It’s yet another gambit designed to generate a campaign talking point while making the underlying problem worse.

The president seems to labor under the misapprehension that crimes by members of the elite must be swept under the rug because prosecuting them would destabilize the system. What he misses is that we are well past the point where coverups will work, and they may even blow up before the November elections. If nothing else, his settlement pact has a non-trivial Constitutional problem which the Republicans, if they are smart, will use to undermine the deal and discredit the Administration.

To add insult to injury, Obama is apparently going to present his belated Christmas present to the banking industry as a boon to ordinary citizens. He refused to appoint a real middle class advocate, Elizabeth Warren, to the Consumer Financial Protection Bureau, but he’s not above stealing her talking points.

We and other commentators have discussed how the mortgage settlement negotiations nominally led by Iowa attorney general Tom Miller had descended into farce. Almost nothing the Miller camp said was believable. They were presented as “attorney general” discussions when the Administration was pulling the strings. They’ve described a deal as weeks away for over a year. They kept claiming that they had undertaken investigations when not a single subpoena was issued by the AGs still involved in the negotiations. They’ve argued from the get go that a pact will be good for homeowners when the deal reached by under-resourced Nevada attorney general Catherine Cortez Masto with a single servicer, Saxon, resulted in a payout that is 10 to 20 times what the Administration is calling a victory. And that assumes that the banks will live up to their side of the deal when past settlements of servicing abuses have shown that they don’t.

The administration has finally woken up to the fact that the housing mess is almost certain to get worse before it gets better, and Obama must therefore be armed with better propaganda. The Miller-led talks have become a bit of an embarrassment and needed to be put out of their misery. So Team Obama and Federal banking regulators have agreed on terms and as we discussed last Friday, are upping the pressure on state attorneys general to fall into line. As reported by Shahien Nasiripour of the Financial Times:

Banks and government negotiators have cleared a big hurdle in efforts to resolve allegations of widespread mortgage-related misdeeds, agreeing on terms for a settlement that are being circulated to the 50 US states for approval, state officials and a bank representative say.

The proposed pact would potentially reduce mortgage balances and monthly payments by more than $25bn for distressed US homeowners…

State prosecutors have already received a set of documents detailing new mortgage servicing standards that the banks and the government negotiators have agreed to. The states were also being sent documents detailing other main components of the deal, such as the liability release for the banks, the so-called “menu” of options describing the various forms of aid to be given to borrowers, as well as the precise language of the so-called “most favoured nation” clause, which spells out how participating states in the deal would be eligible to receive more advantageous terms should a holdout state strike a more favourable deal on its own with the five targeted banks.

The story did not outline terms, but previous leaks have indicated that the bulk of the supposed settlement would come not in actual monies paid by the banks (the cash portion has been rumored at under $5 billion) but in credits given for mortgage modifications for principal modifications. There are numerous reasons why that stinks. The biggest is that servicers will be able to count modifying first mortgages that were securitized toward the total. Since one of the cardinal rules of finance is to use other people’s money rather than your own, this provision virtually guarantees that investor-owned mortgages will be the ones to be restructured. Why is this a bad idea? The banks are NOT required to write down the second mortgages that they have on their books. This reverses the contractual hierarchy that junior lien-holders take losses before senior lenders. So this deal amounts to a transfer from pension funds and other fixed income investors to the banks, at the Administration’s instigation.

Another reason the modification provision is poorly structured is that the banks are given a dollar target to hit. That means they will focus on modifying the biggest mortgages. So help will go to a comparatively small number of grossly overhoused borrowers, no doubt reinforcing the “profligate borrower” meme.

But those criticisms assume two other things: that the program is actually implemented. The experience with past consent decrees in the mortgage space is that the servicers get a legal get out of jail free card, a release, and do not hold up their end of the deal. Similarly, we’ve seen bank executives swear in front of Congress in late 2010 that they had stopped robosigning, which turned out to be a brazen lie. So here, odds favor that servicers will pretty much do nothing except perhaps be given credit for mortgage modifications they would have made anyhow.

There are two clever features of the deal, but neither look intended to benefit ordinary citizens. One is that the deal throws some funding at chronically cash stressed mortgage counselors. They are thus certain to voice approval of the pact. The other is (per the FT story) the deal’s “most favored nations clause” is designed to reduce the bargaining leverage of any AGs that go their own way. It means that any servicer will have the incentive to fight hard against giving any state a better deal because it will automagically trigger improved terms across the states that signed on to the Federal deal. But this may have interesting perverse effects, since banks that refuse to settle with breakaway AGs will ultimately have damages awarded by a court. That means longer and most costly fights by the states, but in most cases, ultimately bigger awards (frankly, the fact set is so bad that all the state AGs need to do is focus on fairly conservative legal theories to have good odds of scoring big wins).

Dave Dayen seemed to think that the AG rebellion was likely to stay firm, given how few of the Democrats were going to Chicago on Monday for an arm-twisting meeting with HUD head Shaun Donovan and an unnamed emissary from the Department of Justice. I would not be so certain. With states so budget starved, I don’t see how anyone can justify sending a live body to Chicago when a phone briefing would work just as well. More important, the most favored nation clause is nasty, and may nudge some fence-sitters over the line.

And I have also been told that Donovan was on the Hill late last week pressuring Congressmen to support the deal. Since this is a regulatory measure that does not require Congressional approval, this move is meant to deprive dissenting state AGs from any support in local media from sympathetic Congressmen. For instance, 31 California representatives wrote the Justice Department, the Federal Reserve and the Office of the Comptroller of the Currency calling on them to “investigate possible violations of law or regulations by financial institutions in their handling of delinquent mortgages, mortgage modifications and foreclosures.” Clearly they could be expected to support California attorney general Kamala Harris’ withdrawal of the deal. Donovon is trying to get them and like minded solons speaking from the Obama script.

But the Administration’s scheme may not be playing out according to script. Senator Sherrod Brown sent a letter last week to associate attorney general Thomas Perelli, Donovan, the CFPB’s Richard Cordray and Tom Miller criticizing the settlement pact. It could have been written by Naked Capitalism readers. Key section:

Now while Republicans may relish the specter of Democrats infighting, the fact is no one is going to want to be seen to be undermining the leader of the party in an election year. So that will put a damper on how aggressive the opponents will be. And media outlets have been amplifying Obama’s efforts to take credit for gravity. For instance, the Administration is touting the fall in foreclosures as an indicator of success when their policies have ranged from do nothing to disasters like HAMP. The fall in foreclosures is actually a sign of failure, as banks are attenuating the process more and more, in some cases due to their inability to come up with necessary documentation, in others out of a desire to wring even more fees out of investors (when a borrower can’t pay, the bank’s fees come first out of the eventual sale of the house).

Either a Gingrich nomination or Romney getting too dented during Republican primary fights increase the odds of what heretofore seemed impossible: an Obama win in November. So if the Republicans were smart, they’d take advantage of a serious weakness in this deal: that it violates the 5th Amendment takings clause. I am told by Bill Frey of Greenwich Financial that a servicer safe harbor provision in HAMP, which was supposed to shield servicers from investor lawsuits over mortgage modifications, was passed by both the House and Senate but was removed in reconciliation because that provision would have run afoul of the 5th Amendment. This settlement is intended to have servicers engage in even more aggressive mortgage modifications and would thus seem to have precisely the same Constitutional problem.

As I urged last week, please call your state attorney general and tell them you think taking from your pension to enrich banks for abusing homeowners is a lousy idea and they should therefore refuse to sign on to the settlement. You can find their phone numbers here. Please call today if you haven’t already. Thanks!

© 2012 Yves Smith

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Yves Smith

Yves Smith is the pen name of Susan Webber, a Principal of Aurora Advisors, Inc. and publisher of the Naked Capitalism blog.

Secret US Memo Made Legal Case to Kill a Citizen October 9, 2011

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Human Rights, War on Terror.
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Roger’s note: I would like to make a couple of points here.  The infamous Office of Legal Counsel (to the president) is already discredited for its justifications of the Bush/Cheney torture regime.  One is reminded that all the Nazi crimes were committed under the color of law (Hitler had his own “Office of Legal Counsel”).  With respect to the substance of the argument presented in the article below that justifies legally the killing of an American citizen by executive order, it depends entirely on the fact that Bush and Obama have defined the entire globe as the “battlefield” in the so-called War on Terror.  Individual acts of terrorism have rightly and traditionally been a matter for policing, not all out warfare (which results in massive “collateral damage,” that is, the killing of innocent civilian bystanders). 

(Ironically and tragically, the non-individual and massive acts of terror that could be described as war-like, are those being undertaken by the United States government with its invasions of foreign countries and its murderous drone missile strikes that have killed thousands of innocent bystanders.)

The memo in effect asserts that if the president decides that any person anywhere in the world, is a threat to the United States, US citizen or no,  he or she can be murdered on nothing more than his say-so.  That is enough “due process.”

Sunday 9 October 2011
by: Charlie Savage, The New York Times News Service         | Report

Washington – The Obama administration’s secret legal memorandum that opened the door to the killing of Anwar al-Awlaki, the American-born radical Muslim cleric hiding in Yemen, found that it would be lawful only if it were not feasible to take him alive, according to people who have read the document.

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made byPresident Obama — to move ahead with the killing of an American citizen without a trial.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.

The Obama administration has refused to acknowledge or discuss its role in the drone strike that killed Mr. Awlaki last month and that technically remains a covert operation. The government has also resisted growing calls that it provide a detailed public explanation of why officials deemed it lawful to kill an American citizen, setting a precedent that scholars, rights activists and others say has raised concerns about the rule of law and civil liberties.

But the document that laid out the administration’s justification — a roughly 50-page memorandum by the Justice Department’s Office of Legal Counsel, completed around June 2010 — was described on the condition of anonymity by people who have read it.

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him.

The administration did not respond to requests for comment on this article.

The deliberations to craft the memo included meetings in the White House Situation Room involving top lawyers for the Pentagon, State Department, National Security Council and intelligence agencies.

It was principally drafted by David Barron and Martin Lederman, who were both lawyers in the Office of Legal Counsel at the time, and was signed by Mr. Barron. The office may have given oral approval for an attack on Mr. Awlaki before completing its detailed memorandum. Several news reports before June 2010 quoted anonymous counterterrorism officials as saying that Mr. Awlaki had been placed on a kill-or-capture list around the time of the attempted bombing of a Detroit-bound airliner on Dec. 25, 2009. Mr. Awlaki was accused of helping to recruit the attacker for that operation.

Mr. Awlaki, who was born in New Mexico, was also accused of playing a role in a failed plot to bomb two cargo planes last year, part of a pattern of activities that counterterrorism officials have said showed that he had evolved from merely being a propagandist — in sermons justifying violence by Muslims against the United States — to playing an operational role in Al Qaeda in the Arabian Peninsula’s continuing efforts to carry out terrorist attacks.

Other assertions about Mr. Awlaki included that he was a leader of the group, which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again. The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located.

Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.

It then considered possible obstacles and rejected each in turn.

Among them was an executive order that bans assassinations. That order, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict.

A federal statute that prohibits Americans from murdering other Americans abroad, the lawyers wrote, did not apply either, because it is not “murder” to kill a wartime enemy in compliance with the laws of war.

But that raised another pressing question: would it comply with the laws of war if the drone operator who fired the missile was a Central Intelligence Agency official, who, unlike a soldier, wore no uniform? The memorandum concluded that such a case would not be a war crime, although the operator might be in theoretical jeopardy of being prosecuted in a Yemeni court for violating Yemen’s domestic laws against murder, a highly unlikely possibility.

Then there was the Bill of Rights: the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law.”

The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal. It cited court cases allowing American citizens who had joined an enemy’s forces to be detained orprosecuted in a military court just like noncitizen enemies.

It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

The document’s authors argued that “imminent” risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located.

There remained, however, the question of whether — when the target is known to be a citizen — it was permissible to kill him if capturing him instead were a feasible way of suppressing the threat.

Killed in the strike alongside Mr. Awlaki was another American citizen, Samir Khan, who had produced a magazine for Al Qaeda in the Arabian Peninsulapromoting terrorism. He was apparently not on the targeting list, making his death collateral damage. His family has issued a statement citing the Fifth Amendment and asking whether it was necessary for the government to have “assassinated two of its citizens.”

“Was this style of execution the only solution?” the Khan family asked in its statement. “Why couldn’t there have been a capture and trial?”

Last month, President Obama’s top counterterrorism adviser, John O. Brennan, delivered a speech in which he strongly denied the accusation that the administration had sometimes chosen to kill militants when capturing them was possible, saying the policy preference is to interrogate them for intelligence.

The memorandum is said to declare that in the case of a citizen, it is legally required to capture the militant if feasible — raising a question: was capturing Mr. Awlaki in fact feasible?

It is possible that officials decided last month that it was not feasible to attempt to capture him because of factors like the risk it could pose to American commandos and the diplomatic problems that could arise from putting ground forces on Yemeni soil. Still, the raid on Osama bin Laden’s compound in Pakistan demonstrates that officials have deemed such operations feasible at times.

Last year, Yemeni commandos surrounded a village in which Mr. Awlaki was believed to be hiding, but he managed to slip away.

The administration had already expressed in public some of the arguments about issues of international law addressed by the memo, in a speech delivered in March 2010 by Harold Hongju Koh, the top State Department lawyer.

As to whether it would violate Yemen’s sovereignty to fire a missile at someone on Yemeni soil, Yemen’s president secretly granted the United States that permission, as secret diplomatic cables obtained by WikiLeaks have revealed.

The memorandum did assert that other limitations on the use of force under the laws of war — like avoiding the use of disproportionate force that would increase the possibility of civilian deaths — would constrain any operation against Mr. Awlaki.

That apparently constrained the attack when it finally came. Details about Mr. Awlaki’s location surfaced about a month ago, American officials have said, but his hunters delayed the strike until he left a village and was on a road away from populated areas.

© 2011 The New York Times Company
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Anwar al-Awlaki’s Extrajudicial Murder October 1, 2011

Posted by rogerhollander in Civil Liberties, Criminal Justice, War.
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Roger’s note: notice that this article was published in the UK.  Apparently, the US corporate media have no problem with the notion that if the president says someone is a terrorist, then it is all right to kill her.  Period.  No process.  No judicial review.  No safeguards.  I am reminded of Nixon’s infamous: “if the president does it, it is legal.”  I was brought up and taught to respect the rule of law; and that no one, no matter who, was above the law.  I guess I must be old fashioned.
Published on Saturday, October 1, 2011 by The Guardian/UK

The law on the use of lethal force by executive order is specific. This assassination broke it – that creates a terrifying precedent

Is this the world we want? Where the president of the United States can place an American citizen, or anyone else for that matter, living outside a war zone on a targeted assassination list, and then have him murdered by drone strike.

This was the very result we at the Center for Constitutional Rights and the ACLU feared when we brought a case in US federal court on behalf of Anwar al-Awlaki’s father, hoping to prevent this targeted killing. We lost the case on procedural grounds, but the judge considered the implications of the practice as raising “serious questions”, asking:

“Can the executive order the assassination of a US citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organisation?”

Yes, Anwar al-Awlaki was a radical Muslim cleric. Yes, his language and speeches were incendiary. He may even have engaged in plots against the United States – but we do not know that because he was never indicted for a crime.

This profile should not have made him a target for a killing without due process and without any effort to capture, arrest and try him. The US government knew his location for purposes of a drone strike, so why was no effort made to arrest him in Yemen, a country that apparently was allied in the US efforts to track him down?

There are – or were – laws about the circumstances in which deadly force can be used, including against those who are bent on causing harm to the United States. Outside of a war zone, as Awlaki was, lethal force can only be employed in the narrowest and most extraordinary circumstances: when there is a concrete, specific and imminent threat of an attack; and even then, deadly force must be a last resort.

The claim, after the fact, by President Obama that Awlaki “operationally directed efforts” to attack the United States was never presented to a court before he was placed on the “kill” list and is untested. Even if President Obama’s claim has some validity, unless Awlaki’s alleged terrorists actions were imminent and unless deadly force employed as a last resort, this killing constitutes murder.

We know the government makes mistakes, lots of them, in giving people a “terrorist” label. Hundreds of men were wrongfully detained at Guantánamo. Should this same government, or any government, be allowed to order people’s killing without due process?

The dire implications of this killing should not be lost on any of us. There appears to be no limit to the president’s power to kill anywhere in the world, even if it involves killing a citizen of his own country. Today, it’s in Yemen; tomorrow, it could be in the UK or even in the United States.

© 2011 Guardian News and Media Limited

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Michael Ratner

Michael Ratner is the president of the Center for Constitutional Rights. He is co-author with Margaret Ratner Kunstler of “Hell No: Your Right to Dissent in the Twenty-First Century

The due-process-free assassination of U.S. citizens is now reality September 30, 2011

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, War on Terror.
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Friday, Sep 30, 2011 06:31 ET

AP Photo/SITE Intelligence Group, File
In this Nov. 8, 2010 file image taken from video and released by SITE Intelligence Group on Monday, Anwar al-Awlaki speaks in a video message posted on radical websites.

(updated below)

It was first reported in January of last year that the Obama administration had compiled a hit list of American citizens whom the President had ordered assassinated without any due process, and one of those Americans was Anwar al-awlaki .  No effort was made to indict him for any crimes (despite a report last October that the Obama administration was “considering” indicting him).  Despite substantial doubt among Yemen experts about whether he even has any operational role in Al Qaeda, no evidence (as opposed to unverified government accusations) was presented of his guilt.  When Awlaki’s father sought a court order barring Obama from killing his son, the DOJ argued, among other things, that such decisions were “state secrets” and thus beyond the scrutiny of the courts.  He was simply ordered killed by the President: his judge, jury and executioner.  When Awlaki’s inclusion on President Obama’s hit list was confirmed, The New York Times noted that “it is extremely rare, if not unprecedented, for an American to be approved for targeted killing.”

After several unsuccessful efforts to assassinate its own citizen, the U.S. succeeded today (and it was the U.S.).  It almost certainly was able to find and kill Awlaki with the help of its long-time close friend President Saleh, who took a little time off from murdering his own citizens to help the U.S. murder its.  The U.S. thus transformed someone who was, at best, a marginal figure into a martyr, and again showed its true face to the world.  The government and media search for The Next bin Laden has undoubtedly already commenced.

What’s most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar (“No person shall be deprived of life without due process of law”), and did so in a way that almost certainly violates core First Amendment protections (questions that will now never be decided in a court of law). What’s most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government’s new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government.  Many will celebrate the strong, decisive, Tough President’s ability to eradicate the life of Anwar al-Awlaki — including many who just so righteously condemned those Republican audience members as so terribly barbaric and crass for cheering Governor Perry’s execution of scores of serial murderers and rapists — criminals who were at least given a trial and appeals and the other trappings of due process before being killed.

From an authoritarian perspective, that’s the genius of America’s political culture.  It not only finds way to obliterate the most basic individual liberties designed to safeguard citizens from consummate abuses of power (such as extinguishing the lives of citizens without due process).  It actually gets its citizens to stand up and clap and even celebrate the destruction of those safeguards.

* * * * *

UPDATE: What amazes me most whenever I write about this topic is recalling how terribly upset so many Democrats pretended to be when Bush claimed the power merely to detain or even just eavesdrop on American citizens without due process.  Remember all that?  Yet now, here’s Obama claiming the power not to detain or eavesdrop on citizens without due process, but to kill them; marvel at how the hardest-core White House loyalists now celebrate this and uncritically accept the same justifying rationale used by Bush/Cheney (this is war! the President says he was a Terrorist!) without even a moment of acknowledgment of the profound inconsistency or the deeply troubling implications of having a President — even Barack Obama — vested with the power to target U.S. citizens for murder with no due process.

Also, during the Bush years, civil libertarians who tried to convince conservatives to oppose that administration’s radical excesses would often ask things like this: would you be comfortable having Hillary Clinton wield the power to spy on your calls or imprison you with no judicial reivew or oversight?  So for you good progressives out there justifying this, I would ask this:  how would the power to assassinate U.S. citizens without due process look to you in the hands of, say, Rick Perry or Michele Bachmann?

U.S. tries to assassinate U.S. citizen Anwar al-Awlaki May 7, 2011

Posted by rogerhollander in Civil Liberties, Criminal Justice, War on Terror.
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Saturday, May 7, 2011 08:22 ET

 

By Glenn Greenwald
 
www.salon.com, May 7, 2011

That Barack Obama has continued the essence of the Bush/Cheney Terrorism architecture was once a provocative proposition but is now so self-evident that few dispute it (watch here as arch-neoconservative David Frum — Richard Perle’s co-author for the supreme 2004 neocon treatise — waxes admiringly about Obama’s Terrorism and foreign policies in the Muslim world and specifically its “continuity” with Bush/Cheney).  But one policy where Obama has gone further than Bush/Cheney in terms of unfettered executive authority and radical war powers is the attempt to target American citizens for assassination without a whiff of due process.  As The New York Times put it last April:

It is extremely rare, if not unprecedented, for an American to be approved for targeted killing, officials said.  A former senior legal official in the administration of George W. Bush said he did not know of any American who was approved for targeted killing under the former president. . . .

 That Obama was compiling a hit list of American citizens was first revealed in January of last year when The Washington Post‘s Dana Priest mentioned in passing at the end of a long article that at least four American citizens had been approved for assassinations; several months later, the Obama administration anonymously confirmed to both the NYT and the Post that American-born, U.S. citizen Anwar al-Awlaki was one of the Americans on the hit list. 

Yesterday, riding a wave of adulation and military-reverence, the Obama administration tried to end the life of this American citizen — never charged with, let alone convicted of, any crime — with a drone strike in Yemen, but missed and killed two other people instead:

A missile strike from an American military drone in a remote region of Yemen on Thursday was aimed at killing Anwar al-Awlaki, the radical American-born cleric believed to be hiding in the country, American officials said Friday.

The attack does not appear to have killed Mr. Awlaki, the officials said, but may have killed operatives of Al Qaeda’s affiliate in Yemen. 

 

The other people killed “may have” been Al Qaeda operatives.  Or they “may not have” been.  Who cares?  They’re mere collateral damage on the glorious road to ending the life of this American citizen without due process (and pointing out that the Fifth Amendment to the U.S. Constitution expressly guarantees that “no person shall be deprived of life without due process of law” — and provides no exception for war — is the sort of tedious legalism that shouldn’t interfere with the excitement of drone strikes).

There are certain civil liberties debates where, even though I hold strong opinions, I can at least understand the reasoning and impulses of those who disagree; the killing of bin Laden was one such instance.  But the notion that the President has the power to order American citizens assassinated without an iota of due process — far from any battlefield, not during combat — is an idea so utterly foreign to me, so far beyond the bounds of what is reasonable, that it’s hard to convey in words or treat with civility.

How do you even engage someone in rational discussion who is willing to assume that their fellow citizen is guilty of being a Terrorist without seeing evidence for it, without having that evidence tested, without giving that citizen a chance to defend himself — all because the President declares it to be so?  “I know Awlaki, my fellow citizen, is a Terrorist and he deserves to die.  Why?  Because the President decreed that, and that’s good enough for me.  Trials are so pre-9/11.”  If someone is willing to dutifully click their heels and spout definitively authoritarian anthems like that, imagine how impervious to reason they are on these issues.

And if someone is willing to vest in the President the power to assassinate American citizens without a trial far from any battlefield — if someone believes that the President has that power:  the power of unilaterally imposing the death penalty and literally acting as judge, jury and executioner — what possible limits would they ever impose on the President’s power?  There cannot be any.  Or if someone is willing to declare a citizen to be a “traitor” and demand they be treated as such — even though the Constitution expressly assigns the power to declare treason to the Judicial Branch and requires what we call “a trial” with stringent evidence requirements before someone is guilty of treason — how can any appeals to law or the Constitution be made to a person who obviously believes in neither?

What’s most striking about this is how it relates to the controversies during the Bush years.  One of the most strident attacks from the Democrats on Bush was that he wanted to eavesdrop on Americans without warrants.  One of the first signs of Bush/Cheney radicalism was what they did to Jose Padilla:  assert the power to imprison this American citizen without charges.  Yet here you have Barack Obama asserting the power not to eavesdrop on Americans or detain them without charges — but to target them for killing without charges — and that, to many of his followers, is perfectly acceptable.  It’s a “horrific shredding of the Constitution” and an act of grave lawlessness for Bush to eavesdrop on or detain Americans without any due process; but it’s an act of great nobility when Barack Obama ends their lives without any due process.

Not even Antonin Scalia was willing to approve of George Bush’s mere attempt to detain (let alone kill) an American citizen accused of Terrorism without a trial.  In a dissenting opinion joined by the court’s most liberal member, John Paul Stevens, Scalia explained that not even the War on Terror allows the due process clause to be ignored when the President acts against those he claims have joined the Enemy — and this was for a citizen found on an actual active battlefield in a war zone (Afghanistan) (emphasis added):

The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.  Blackstone stated this principle clearly:  “Of great importance to the public is the preservation of this personal liberty:  for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper … there would soon be an end of all other rights and immunities. … To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom.” . . . .

Subjects accused of levying war against the King were routinely prosecuted for treason. . . . The Founders inherited the understanding that a citizen’s levying war against the Government was to be punished criminally. The Constitution provides: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort”; and establishes a heightened proof requirement (two witnesses) in order to “convic[t]” of that offense. Art. III, §3, cl. 1. 

 

There simply is no more basic liberty than the right to be free from Presidential executions without being charged with — and then convicted of — a crime:  whether it be treason, Terrorism, or anything else.  How can someone who objected to Bush’s attempt to eavesdrop on or detain citizens without judicial oversight cheer for Obama’s attempt to kill them without judicial oversight? Can someone please reconcile those positions?

One cannot be certain that this attempted killing of Awlaki relates to the bin Laden killing, but it certainly seems likely, and in any event, highlights the dangers I wrote about this week.  From the start, it was inconceivable to me that — as some predicted — the bin Laden killing would bring about a ratcheting down of America’s war posture.  The opposite seemed far more likely to me for the reason I wrote on Monday:  

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. . . . We’re feeling good and strong about ourselves again — and righteous — and that’s often the fertile ground for more, not less, aggression.

 

The killing of bin Laden got the testosterone pumping, the righteousness pulsating, and faith in the American military and its Commander-in-Chief skyrocketing to all-time highs.  It made America feel good about itself in a way that no other event has since at least Obama’s inauguration; we got to forget about rampant unemployment, home foreclosures by the millions, a decade’s worth of militaristic futility and slaughter, and ever-growing Third-World levels of wealth inequality.  This was a week for flag-waving, fist-pumping, and nationalistic chanting:  even — especially — among liberals, who were able to take the lead and show the world (and themselves) that they are no wilting, delicate wimps; it’s not merely swaggering right-wing Texans, but they, too, who can put bullets in people’s heads and dump corpses into the ocean and then joke and cheer about it afterwards.  It’s inconceivable that this wave of collective pride, boosted self-esteem, vicarious strength, and renewed purpose won’t produce a desire to replicate itself.  Four days after bin Laden is killed, a missile rains down from the sky to try to execute Awlaki without due process, and that’ll be far from the last such episode (indeed, also yesterday, the U.S. launched a drone attack in Pakistan, ending the lives of 15 more people:  yawn).

Last night, in a post entitled “Reigniting the GWOT [Global War on Terrorism]“ — Digby wrote about why the reaction to the killing of bin Laden is almost certain to spur greater aggression in the “War on Terror,” and specifically observed:  “They’re breathlessly going on about Al Qaeda in Yemen ‘targeting the homeland’ right now on CNN. Looks like we’re back in business.”  The killing of bin Laden isn’t going to result in a reduction of America’s military adventurism because that’s not how the country works: when we eradicate one Enemy, we just quickly and seamlessly find a new one to replace him with — look over there:  Al Qaeda in the Arabian Peninsula is the True Threat!!!! — and the blood-spilling continues unabated (without my endorsing it all, read this excellent Chris Floyd post for the non-euphemistic reality of what we’ve really been doing in the world over the last couple years under the 2009 Nobel Peace Prize Winner).

A civil liberties lawyer observed by email to me last night that now that Obama has massive political capital and invulnerable Tough-on-Terror credentials firmly in place, there are no more political excuses for what he does (i.e., he didn’t really want to do that, but he had to in order not to be vulnerable to GOP political attacks that he’s Weak).  In the wake of the bin Laden killing, he’s able to do whatever he wants now — ratchet down the aggression or accelerate it — and his real face will be revealed by his choices (for those with doubts about what that real face is).  Yesterday’s attempt to exterminate an American citizen who has long been on his hit list — far from any battlefield, not during combat, and without even a pretense of due process — is likely to be but a first step in that direction.

Glenn Greenwald’s Unclaimed Territory

I was previously a constitutional law and civil rights litigator in New York. I am the author of two New York Times Bestselling books: “How Would a Patriot Act?” (May, 2006), a critique of the Bush administration’s use of executive power, and “A Tragic Legacy” (June, 2007), which examines the Bush legacy. My most recent book, “Great American Hypocrites”, examines the manipulative electoral tactics used by the GOP and propagated by the establishment press, and was released in April, 2008, by Random House/Crown.

Twitter: @ggreenwald
E-mail: GGreenwald@salon.com

Bradley Manning: Top US legal Scholars Voice Outrage at ‘Torture’ April 11, 2011

Posted by rogerhollander in Barack Obama, Human Rights, Torture.
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Code Pink for Peace demonstrators the detention of US Army Private Bradley Manning. More than 250 of America’s most eminent legal scholars have signed a letter protesting against the treatment in military prison of the alleged WikiLeaks source Bradley Manning, contesting that his “degrading and inhumane conditions” are illegal, unconstitutional and could even amount to torture.

Published on Monday, April 11, 2011 by The Guardian/UK

Obama professor among 250 experts who have signed letter condemning humiliation of alleged WikiLeaks source

by Ed Pilkington

More than 250 of America’s most eminent legal scholars have signed a letter protesting against the treatment in military prison of the alleged WikiLeaks source Bradley Manning, contesting that his “degrading and inhumane conditions” are illegal, unconstitutional and could even amount to torture.

  The list of signatories includes Laurence Tribe, a Harvard professor who is considered to be America’s foremost liberal authority on constitutional law. He taught constitutional law to Barack Obama and was a key backer of his 2008 presidential campaign.

Tribe joined the Obama administration last year as a legal adviser in the justice department, a post he held until three months ago.

He told the Guardian he signed the letter because Manning appeared to have been treated in a way that “is not only shameful but unconstitutional” as he awaits court martial in Quantico marine base in Virginia.

The US soldier has been held in the military brig since last July, charged with multiple counts relating to the leaking of thousands of embassy cables and other secret documents to the WikiLeaks website.

Under the terms of his detention, he is kept in solitary confinement for 23 hours a day, checked every five minutes under a so-called “prevention of injury order” and stripped naked at night apart from a smock.

Tribe said the treatment was objectionable “in the way it violates his person and his liberty without due process of law and in the way it administers cruel and unusual punishment of a sort that cannot be constitutionally inflicted even upon someone convicted of terrible offences, not to mention someone merely accused of such offences”.

The harsh restrictions have been denounced by a raft of human rights groups, including Amnesty International, and are being investigated by the United Nations’ rapporteur on torture.

Tribe is the second senior figure with links to the Obama administration to break ranks over Manning. Last month, PJ Crowley resigned as state department spokesman after deriding the Pentagon’s handling of Manning as “ridiculous and counterproductive and stupid”.

The intervention of Tribe and hundreds of other legal scholars is a huge embarrassment to Obama, who was a professor of constitutional law in Chicago. Obama made respect for the rule of law a cornerstone of his administration, promising when he first entered the White House in 2009 to end the excesses of the Bush administration’s war on terrorism.

As commander in chief, Obama is ultimately responsible for Manning’s treatment at the hands of his military jailers. In his only comments on the matter so far, Obama has insisted that the way the soldier was being detained was “appropriate and meets our basic standards”.

The protest letter, published in the New York Review of Books, was written by two distinguished law professors, Bruce Ackerman of Yale and Yochai Benkler of Harvard. They claim Manning’s reported treatment is a violation of the US constitution, specifically the eighth amendment forbidding cruel and unusual punishment and the fifth amendment that prevents punishment without trial.

In a stinging rebuke to Obama, they say “he was once a professor of constitutional law, and entered the national stage as an eloquent moral leader. The question now, however, is whether his conduct as commander in chief meets fundamental standards of decency”.

Benkler told the Guardian: “It is incumbent on us as citizens and professors of law to say that enough is enough. We cannot allow ourselves to behave in this way if we want America to remain a society dedicated to human dignity and process of law.”

He said Manning’s conditions were being used “as a warning to future whistleblowers” and added: “

I find it tragic that it is Obama’s administration that is pursuing whistleblowers and imposing this kind of treatment.”

Ackerman pointed out that under the Pentagon’s own rule book, the Uniform Code of Military Justice, Manning’s jailers could be liable to prosecution for abusing him. Article 93 of the code says “any person who is guilty of cruelty toward any person subject to his orders shall be punished”.

The list of professors who have signed the protest letter includes leading figures from all the top US law schools, as well as prominent names from other academic fields. Among them are Bill Clinton’s former labour secretary Robert Reich, President Theodore Roosevelt’s great-great-grandson Kermit Roosevelt, the former president of the American Civil Liberties Union Norman Dorsen and the novelist Kwame Anthony Appiah.

© 2011 Guardian News and Media

On the claimed “war exception” to the Constitution February 4, 2010

Posted by rogerhollander in Civil Liberties, Criminal Justice, Democracy, War on Terror.
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By Glenn Greenwald
www.salon.com, February 4, 2010

Last week, I wrote about a revelation buried in a Washington Post article by Dana Priest which described how the Obama administration has adopted the Bush policy of targeting selected American citizens for assassination if they are deemed (by the Executive Branch) to be Terrorists.  As The Washington Times‘ Eli Lake reports, Adm. Dennis Blair was asked about this program at a Congressional hearing yesterday and he acknowledged its existence:

The U.S. intelligence community policy on killing American citizens who have joined al Qaeda requires first obtaining high-level government approval, a senior official disclosed to Congress on Wednesday.

Director of National Intelligence Dennis C. Blair said in each case a decision to use lethal force against a U.S. citizen must get special permission. . . .

He also said there are criteria that must be met to authorize the killing of a U.S. citizen that include “whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans. Those are the factors involved.”

 

Although Blair emphasized that it requires “special permission” before an American citizen can be placed on the assassination list, consider from whom that “permission” is obtained:  the Preisdent, or someone else under his authority within the Executive Branch.  There are no outside checks or limits at all on how these “factors” are weighed.  In last week’s post, I wrote about all the reasons why it’s so dangerous — as well as both legally and Consitutionally dubious — to allow the President to kill American citizens not on an active battlefield during combat, but while they are sleeping, sitting with their families in their home, walking on the street, etc.  That’s basically giving the President the power to impose death sentences on his own citizens without any charges or trial.  Who could possibly support that?

But even if you’re someone who does want the President to have the power to order American citizens killed without a trial by decreeing that they are Terrorists (and it’s worth remembering that if you advocate that power, it’s going to be vested in all Presidents, not just the ones who are as Nice, Good, Kind-Hearted and Trustworthy as Barack Obama), shouldn’t there at least be some judicial approval required?  Do we really want the President to be able to make this decision unilaterally and without outside checks?  Remember when many Democrats were horrified (or at least when they purported to be) at the idea that Bush was merely eavesdropping on American citizens without judicial approval?  Shouldn’t we be at least as concerned about the President’s being able to assassinate Americans without judicial oversight?  That seems much more Draconian to me. 

It would be perverse in the extreme, but wouldn’t it be preferable to at least require the President to demonstrate to a court that probable cause exists to warrant the assassination of an American citizen before the President should be allowed to order it?  That would basically mean that courts would issue “assassination warrants” or “murder warrants” — a repugnant idea given that they’re tantamount to imposing the death sentence without a trial — but isn’t that minimal safeguard preferable to allowing the President unchecked authority to do it on his own, the very power he has now claimed for himself?  And if the Fifth Amendment’s explicit guarantee — that one shall not be deprived of life without due process — does not prohibit the U.S. Government from assassinating you without any process, what exactly does it prohibit?  Noting Scott Brown’s campaign to deny accused Terrorists access to lawyers and a real trial, Adam Serwer wrote:  

This is the new normal for Republicans: You can be denied rights not through due process of law but merely based on the nature of the crime you are suspected of committing.

 

That’s absolutely true, but that also perfectly describes this assassination program — as well as a whole host of other now-Democratic policies, from indefinite detention to denial of civilian trials.

* * * * *

The severe dangers of vesting assassination powers in the President are so glaring that even GOP Rep. Pete Hoekstra is able to see them (at least he is now that there’s a Democratic President).  At yesterday’s hearing, Hoekstra asked Adm. Blair about the threat that the President might order Americans killed due to their Constitutionally protected political speech rather than because they were actually engaged in Terrorism.  This concern is not an abstract one.  The current controversy has been triggered by the Obama administration’s attempt to kill U.S. citizen Anwar al-Awlaki in Yemen.  But al-Awalki has not been accused (let alone convicted) of trying to attack Americans.  Instead, he’s accused of being a so-called “radical cleric” who supports Al Qeada and now provides “encouragement” to others to engage in attacks —  a charge al-Awalki’s family vehemently denies (al-Awalki himself is in hiding due to fear that his own Government will assassinate him).

The question of where First Amendment-protected radical advocacy ends and criminality begins is exactly the sort of question with which courts have long grappled.  In the 1969 case of Brandenburg v. Ohio, the Supreme Court unanimously reversed a criminal conviction of a Ku Klux Klan leader who — surrounded by hooded indivduals holding weapons — gave a speech threatening “revengeance” against any government official who “continues to suppress the white, Caucasian race.”  The Court held that the First Amendment protects advocacy of violence and revolution, and that the State is barred from punishing citizens for the expression of such views.  The Brandenberg Court pointed to a long history of precedent protecting the First Amendment rights of Communists to call for revolution — even violent revolution — inside the U.S., and explained that the Government can punish someone for violent actions but not for speech that merely advocates or justifies violence (emphasis added):

As we [395 U.S. 444, 448] said in Noto v. United States, 367 U.S. 290, 297 -298 (1961), “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” See also Herndon v. Lowry, 301 U.S. 242, 259 -261 (1937); Bond v. Floyd, 385 U.S. 116, 134 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

 

From all appearances, al-Awalki seems to believe that violence by Muslims against the U.S. is justified in retaliation for the violence the U.S. has long brought (and continues to bring) to the Muslim world.  But as an American citizen, he has the absolute Constitutional right to express those views and not be punished for them (let alone killed) no matter where he is in the world; it’s far from clear that he has transgressed the advocacy line into violent action.  Obviously, there are those who justify such assassination powers on the ground that radical Islam is a grave threat, but that is what is always said to justify Constitutional abrigements (it was obviously said of Communists and war critics during World War I).  Indeed, in light of episodes like the Timothy McVeigh bombing and the various attacks on abortion clinics, shouldn’t those who want the President to be able to assassinate American “radical clerics” without a trial also support the President’s targeting of Americans who advocate extremism or violence from a far right or extremist Christian perspective?  What’s the principle that allows one but not the other?

In response to these concerns, Admiral Blair said yesterday:  “We don’t target people for free speech. We target them for taking action that threatens Americans or has resulted in it.”  But the U.S. Government — like all governments — has a long history of viewing “free speech” as a violent threat or even Terrorism.  That’s why this is exactly the type of question that is typically — and is intended to be — resolved by courts, according the citizen due process, not by the President acting alone.  That’s especially true if the death penalty is to be imposed.  

But Obama’s presidential assassination policy completely short-circuits that process.  It literally makes Barack Obama the judge, jury and executioner even of American citizens. Beyond its specific application, it is yet another step — a rather major one — towards abandoning our basic system of checks and balances in the name of Terrorism and War.

* * * * * 

That last point is the most important one here.  Atrios wrote the other day that a central prong in the Washington consensus is that “all it takes to nullify the constitution is to call someone a terraist.”  That’s absolutely true, but a close corollary is that merely uttering the word “war” justifies the same thing.  That’s particularly dangerous given that, by all accounts, this is a so-called “war” that will not end for a generation, if ever.  To justify the abridgment or even suspension of the Constitution on the ground of “war” is to advocate serious alterations to our Constitutional framework that are more or less permanent.  Several points about that “war” excuse: 

First, there’s no “war exception” in the Constitution.  Even with real warsi.e., those involving combat between opposing armies — the Constitution actually continues to constrain what government officials can do, most stringently as it concerns U.S. citizens.  Second, strictly speaking, we’re not really “at war,” as Congress has merely authorized the use of military force but has not formally or Constitutionally declared war.  Even the Bush administration conceded that this is a vital difference when it comes to legal rights.  In 2006, the Bush DOJ insisted that the wartime provision of FISA — allowing the Government to eavesdrop for up to 15 days without a warrant — didn’t apply because Congress only enacted an AUMF, not a declaration of war (click image to enlarge):

The Bush DOJ went on to explain that declarations of war trigger a whole variety of legal effects (such as terminating diplomatic relations and abrogating or suspending treaty obligations) which AUMFs do not trigger (see p. 27).  To authorize military force is not to declare war.  Finally, the U.S. is fighting numerous undeclared wars, including ones involving military action:  given that our “War on Drugs” continues to rage, should the U.S. Government be able to target accused “drug kingpins” for assassination without a trial, the way we attempted to do in Afghanistan?  After all, Terrorists blow up airplanes but Drug Kingpins kill our kids!!!  The mindset that cheers for unlimited Presidential powers in the name of “war” invariably leads to exactly these sorts of expansions.

Far beyond the specific injustices of assassinating Americans without trials, the real significance, the real danger, is that we continue to be frightened into radically altering our system of government.  In Slate yesterday, Dahlia Lithwick encapsulated this problem perfectly; her whole article should be read, but this excerpt is superb:

America has slid back again into its own special brand of terrorism-derangement syndrome. Each time this condition recurs, it presents with more acute and puzzling symptoms. . . .

Moreover, each time Republicans go to their terrorism crazy-place, they go just a little bit farther than they did the last time, so that things that made us feel safe last year make us feel vulnerable today. . . . In short, what was once tough on terror is now soft on terror. And each time the Republicans move their own crazy-place goal posts, the Obama administration moves right along with them. . . .

We’re terrified when a terror attack happens, and we’re also terrified when it’s thwarted. We’re terrified when we give terrorists trials, and we’re terrified when we warehouse them at Guantanamo without trials. If a terrorist cooperates without being tortured we complain about how much more he would have cooperated if he hadn’t been read his rights. No matter how tough we’ve been on terror, we will never feel safe enough to ask for fewer safeguards. . . .

But here’s the paradox: It’s not a terrorist’s time bomb that’s ticking. It’s us. Since 9/11, we have become ever more willing to suspend basic protections and more contemptuous of American traditions and institutions. The failed Christmas bombing and its political aftermath have revealed that the terrorists have changed very little in the eight-plus years since the World Trade Center fell. What’s changing — what’s slowly ticking its way down to zero — is our own certainty that we can never be safe enough and our own confidence in the rule of law.

 

This descent has certainly not reversed itself — it has not really even slowed — with the election of a President who repeatedly vowed to reject this mentality.  Just consider what Al Gore said in his truly excellent 2006 speech decrying the “Constitutional crisis” under the Bush presdiency:

Can it be true that any president really has such powers under our Constitution?

If the answer is yes, then under the theory by which these acts are committed, are there any acts that can on their face be prohibited?

If the president has the inherent authority to eavesdrop on American citizens without a warrant, imprison American citizens on his own declaration, kidnap and torture, then what can’t he do?

 

Here we are, almost four years later with a new party in power, and the President’s top intelligence official announces — without any real controversy — that the President claims the power to assassinate American citizens with no charges, no trials, no judicial oversight of any kind.  The claimed power isn’t “inherent” — it’s based on alleged Congressional approval — but it’s safeguard-free and due-process-free just the same.  As Gore asked of less severe policies in 2006, if the President can do that, “then what can’t he do?”  As long as we stay petrified of the Terrorists and wholly submissive whenever the word “war” is uttered, the answer will continue to be:  “nothing.”  We’ll have Presidents now and then who are marginally more restrained than others — as the current President is marginally more restrained than the prior one — but what Lithwick calls our “willingness to suspend basic protections and become more contemptuous of American traditions and institutions” will continue unabated.

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