Congress OKs 30,000 flying drones spying on Americans across U.S. cities February 10, 2012Posted by rogerhollander in Civil Liberties, Democracy.
Tags: civil liberties, drone missiles, faa, fourth amendment, Homeland Security, j. d. hayes, privacy, roger hollander, surveillance society
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By J. D. Heyes
It’s the most benign thing in the world. In fact, it’s a concept whose time has come and it will only help protect us and keep us safe. Naturally, there’s nothing to worry about because there won’t be any abuse of the technology. After all, spy drones are already being used around the U.S.; what’s the problem with adding tens of thousands more?
Privacy advocates, however, are sounding the alarm good and loud.
“There are serious policy questions on the horizon about privacy and surveillance, by both government agencies and commercial entities,” Steven Aftergood, head of the Project on Government Secrecy at the Federation of American Scientists, told the Washington Times.
The use of drones to keep an eye on American citizens is just the next step in what has become the move towards a so-called “surveillance society” that is growing rampant in the U.S.
Barry Steinhardt, director of the ACLU’s Technology and Liberty Program, says while the widening use of video cameras in American society may have helped nab some criminals, they often provide a false sense of security.
”It’s the illusion of security … public authorities like to give the impression they are doing something about crime and terrorism,” he told Wired.com.
Furthermore, are we comfortable with being constantly under surveillance?
“Do we want a society where an innocent individual can’t walk down the street without being considered a potential criminal?” asks the ACLU, on its Web site.
US Supreme Court Deals Mortal Blow to Privacy June 5, 2011Posted by rogerhollander in Civil Liberties, Criminal Justice.
Tags: bill of rights, civil liberties, constitution, fourth amendment, john adams, judicial warrants, michael mears, patrick henry, personal liberties, privacy, right to privacy, roger hollander, ruth bader ginsberg, searches ande seizures, supreme court, tea party
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Last month, the United States Supreme Court, in an 8-1 decision in the case of Kentucky v. King, told the police in our nation that they may break into a home without a warrant if they believe that the occupants might be in the act of destroying evidence.
Only Justice Ruth Bader Ginsberg realized that this might be the last nail in the coffin of one of the most important personal protections left for Americans. While the politicians in Washington are fiddling away our economic security, the Supreme Court has lit a match that will burn up what is left of the right of privacy and the Fourth Amendment’s protections against unreasonable searches and seizures.
While the tax-avoiding patriots were dumping taxable tea in the harbor at Boston, men like Patrick Henry and John Adams were more concerned, and rightly so, with the loss of personal liberties in the Colonies.
Perhaps none of the “protective” amendments to the U.S. Constitution has as much connection with the events leading up to the American Revolution against England and its king than does the Fourth Amendment.
This amendment, more than all of the other “Bill of Rights,” is directly associated with specific acts that led, ultimately, to the call for a complete break from England and for the establishment of a separate nation.
Perhaps the most succinct observation about the dichotomy between those who see a continuing erosion of the Fourth Amendment and those who see it as an impediment to law enforcement officers and prosecutors can be found in a more reasoned Supreme Court decision from 1948. In that opinion, the court stated:
“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence … [it demands that] the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”
In February 1761 in Boston, there was a widely publicized debate over the issuance of general, limitless search warrants called Writs of Assistance. James Otis, a lawyer in Colonial Massachusetts, in a famous 1761 debate, condemned the use of these general search warrants, declaring them to be untenable in a land of free men.
But he did make a suggestion that later formed the basis for part of the Fourth Amendment. He suggested that any lawful searches be made only pursuant to warrants that contained explicit restrictions as to where the search was to take place and to the objects of the search, and that the warrants be issued only upon the making of specific oaths by the person seeking to carry out the search.
Patrick Henry followed the news reports of the debate over the use of these general search warrants (those authorizing searches at any time the holder of the search warrant deemed it necessary to search someone’s home or business) and he also argued against the abuses of such writs of assistance.
In 1778, during the constitutional debates before passage of the Bill of Rights, he argued for congressional consideration of a series of amendments to the constitution, one of which guaranteed the security of the citizenry against unreasonable government searches. This proposed amendment quite clearly presupposed that an “unreasonable” search could be avoided only by use of a warrant, and only if that warrant met certain standards.
After the adoption of the Fourth Amendment there appeared to be a general understanding of the nature and extent of the protections afforded citizens from searches without proper judicial warrants.
Up until the Supreme Court’s decision in Kentucky v. King, there was a general acknowledgment that the Fourth Amendment is a living creation with the ability to adapt its protections to new and ever-changing technology. Despite some erosion of the historical protections found in the Bill of Rights, there has been the hope that the Supreme Court would continue to regard the Fourth Amendment as necessary to protect citizens from the government.
Unfortunately, eight members of the present Supreme Court have decided that the Fourth Amendment is nothing more than a historical relic that has outlived its welcome in our “free” society.
George W. Obama January 15, 2010Posted by rogerhollander in Barack Obama, Criminal Justice, Human Rights, Torture.
Tags: aclu, black sites, bush administration, cheney, cia, cia renditions, constitution, Criminal Justice, eric holder, FISA, fourth amendment, Guantanamo, justice department, nat hentoff, obama administration, permanent detention, presidential immunity, rendition, Robert Gates, roger hollander, rumsfeld, sovereign immunity, state secrets, supreme court, thurgood marshall, torture, wiretap act
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After his first year, Obama shows his true face
By Nat Hentoff
Tuesday, January 12th 2010 at 3:33pm
“The Bush administration constructed a legal framework for torture, but the Obama administration is constructing a legal framework for impunity.”
”Mr. Obama’s ratifications of the basic outlines of the surveillance and detention policies he inherited would reverberate for generations. By bestowing bipartisan acceptance on them,” Mr. Balkin said, “Mr. Obama is consolidating them as entrenched features of government.”
”Throughout the world today there are men, women, and children interned indefinitely, awaiting trials which may never come or which may be a mockery of the word, because their governments believe them to be ‘dangerous.’ Our Constitution . . . can shelter us forever against the dangers of such unchecked power.”
Before President Obama, it was grimly accurate to write, as I often did in the Voice, that George W. Bush came into the presidency with no discernible background in constitutional civil liberties or any acquaintance with the Constitution itself. Accordingly, he turned the “war on terror” over to Dick Cheney and Donald Rumsfeld—ardent believers that the Constitution presents grave obstacles in a time of global jihad.
But now, Bush’s successor—who actually taught constitutional law at the University of Chicago—is continuing much of the Bush-Cheney parallel government and, in some cases, is going much further in disregarding our laws and the international treaties we’ve signed.
On January 22, 2009, the apostle of “change we can believe in” proclaimed: “Transparency and the rule of law will be the touchstones of my presidency.” But four months into his first year in command, Obama instructed his attorney general, Eric Holder, to present in a case, Jewel v. National Security Agency, a claim of presidential “sovereign immunity” that not even Dick Cheney had the arrant chutzpah to propose.
Five customers of AT&T had tried to go to court and charge that the government’s omnipresent spy, the NSA, had been given by AT&T private information from their phone bills and e-mails. In a first, the Obama administration countered—says Kevin Bankston of Electronic Frontier Foundation, representing these citizens stripped of their privacy—that “the U.S. can never be sued for spying that violated federal surveillance statutes, the Foreign Intelligence Surveillance Act, or the Wiretap Act.”
It is one thing, as the Bush regime did, to spy on us without going to court for a warrant, but to maintain that the executive branch can never even be charged with wholly disregarding our rule of law is, as a number of lawyers said, “breathtaking.”
On the other hand, to his credit, Obama’s very first executive orders in January included the ending of the CIA “renditions”—kidnapping terrorism suspects off the streets in Europe and elsewhere and sending them for interrogation to countries known to torture prisoners. However, in August, the administration admitted that the CIA would continue to send such manacled suspects to third countries for detention and interrogation.
Why send them to a foreign prison if they’re not going to be tortured to extract information for the CIA? Oh, the U.S. would get “guarantees” from these nations that the prisoners would not be tortured. That’s the same old cozening song that Condoleezza Rice and George W. Bush used to sing robotically.
President Obama also solemnly pledged to have “the most open administration in American history.” Nonetheless, his Justice Department lawyers have already invoked “state secrets” to prevent cases brought by victims of the CIA renditions from being heard.
In February, in a lawsuit brought by five graduates of CIA “black sites” before the Ninth Circuit Court of Appeals in San Francisco, one of the judges, visibly surprised at hearing the new “change” president invoking “state secrets,” asked the government lawyer, Douglas Letter, “The change in administration has no bearing on this?”
The answer: “No, your honor.” This demand for closing this case before it can be heard had, he said, been “thoroughly vetted with the appropriate officials within the new administration, [and] these are authorized positions.”
Said the torture graduates’ ACLU lawyer, Ben Wizner: “Much is at stake in this case. If the CIA’s overboard secrecy claims prevail, torture victims will be denied their say in court solely on the basis of an affidavit submitted by their torturers.”
Barack Obama a torturer? Not exactly. In this particular case, the torture policy had been set by George W. Bush. President Obama is just agreeing with his predecessor. Does that make Obama complicit in these acts of torture? You decide.
What is clear, beyond a doubt—and not only in “rendition” cases, but in other Obama validations of what Dick Cheney called the necessary “dark side” of the previous administration—has been stated by Jameel Jaffer. Head of the ACLU’s National Security Project, he is the co-author of the definitive evidence of the Bush-Cheney war crimes that Obama is shielding, Administration of Torture (Columbia University Press).
After the obedient Holder rang the “state secrets” closing bell in the San Francisco case, Jaffer described the link between the Bush and Obama presidencies: “The Bush administration constructed a legal framework for torture, but the Obama administration is constructing a legal framework for impunity.”
It’s become an Obama trademark: reversing a vigorous position he had previously taken, as when he signed into law the FISA (Foreign Intelligence Surveillance Act) Amendments Act that, as a senator, he had vowed to filibuster as a protest against their destruction of the Fourth Amendment. And now he’s done it again. His government is free to spy on us at will.
For another example of the many Obamas, the shifting president had supported the release of photographs of Bush-era soldier abuses of prisoners in Iraq and Afghanistan. (The Second Circuit Court of Appeals in New York had approved the publication of these “intensive interrogations.”) But Obama changed his mind, and Defense Secretary Robert Gates flat-out censored the photos. Not surprisingly, the Roberts Supreme Court agreed with Gates and Obama and overruled the Second Circuit.
In a December 5 editorial, The New York Times helped explain why Obama—who doesn’t want to “look backward” at Bush cruelties—changed his mind: “The photos are of direct relevance to the ongoing national debate about accountability for the Bush-era abuses. No doubt their release would help drive home the cruelty of stress positions, mock executions, hooding, and other ‘enhanced interrogation techniques’ used against detainees and make it harder for officials to assert that improper conduct was aberrational than the predictable result of policies set at high levels.”
Barack Obama may well go down in history as the President of Impunity for Bush, Cheney, and, in time, himself, for continuing the CIA “renditions.”
But he will also be long remembered as the President of Permanent Detention. At the Supreme Court in 1987, in U.S. v. Salerno, Justice Thurgood Marshall, strenuously dissenting, warned: “Throughout the world today there are men, women, and children interned indefinitely, awaiting trials which may never come or which may be a mockery of the word, because their governments believe them to be ‘dangerous.’ Our Constitution . . . can shelter us forever against the dangers of such unchecked power.”
Not forever. The Obama government is working to assure that its purchase of the supermax prison, the Thomson Correctional Center in Illinois, will be the permanent forced residence of certain Guantánamo terrorism suspects who can’t be tried in our regular courtrooms because—gasp—they have been tortured, preventing the admission of “incriminating” statements they have made or—”state secrets” again!—a due process trial “would compromise sensitive sources and methods.”
I increasingly wonder whose Constitution Barack Obama was teaching at the University of Chicago. China’s? North Korea‘s? Robert Mugabe‘s? Glenn Greenwald, a former constitutional lawyer, whose byline I never miss on the Internet, asks: “What kind of a country passes a law that has no purpose other than to empower its leader to suppress evidence of the torture it inflicted on people?”
You may not be surprised to learn that my next book—to be published by Cato Institute, where I’m now a senior fellow—will be titled, Is This America?
I often disagree with ACLU Executive Director Anthony Romero—though I’m almost always in synch with his lawyers in the field—but Romero is right about Obama creating “Gitmo North”: “While the Obama administration inherited the Guantánamo debacle, this current move is its own affirmative adoption of those policies. It is unimaginable that the Obama administration is using the same justification as the Bush administration used to undercut centuries of legal jurisprudence and the principle of innocent until proved guilty and the right to confront one’s accusers. . . . The Obama administration’s announcement contradicts everything the president has said about the need for America to return to leading with its values. American values do not contemplate disregarding our Constitution and skirting the criminal justice system.”
If Dick Cheney were a gentleman, instead of continuing to criticize this president, he would congratulate him on his faithful allegiance to many signature policies of the Bush-Cheney transformation of America.
But never let it be said that President Obama is neglecting the patriotic education of America’s young. On December 13, Clint Boulton reported on eweek.com, “The Electronic Frontier Foundation and Berkeley‘s Samuelson Clinic have sued the Department of Justice and five other government organizations (including the CIA and the Office of the Director of National Intelligence) for cloaking their policies for using Facebook, Twitter, and other social networks to investigate citizens in criminal and other matters. [The plaintiffs] want to know exactly how, and what kinds of information, the feds are accessing from users’ social networking profiles.”
Maybe Dick Cheney can ask Barack to confirm him as a friend on Facebook.
Charlie Savage, the Times ace reporter of constitutional violations, chillingly shows how Yale Law School professor Jack Balkin got to the core of the consequences of our “yes, we can” president by predicting that “Mr. Obama’s ratifications of the basic outlines of the surveillance and detention policies he inherited would reverberate for generations. By bestowing bipartisan acceptance on them,” Mr. Balkin said, “Mr. Obama is consolidating them as entrenched features of government.”
Do Congressional Democratic leaders Harry Reid and Nancy Pelosi give a damn about this historic legacy of the Obama administration that they cluelessly help to nurture by providing lockstep Democratic majorities for?
Do you give a damn?
Tags: Abu Ghraib, Alberto Gonzales, bagram, bob fertik, bruce ackerman, cheney, cia torturers, david swanson, democratic party, eric holder, FISA, fourth amendment, genea conventions, George Bush, Guantanamo, habeas corpus, impeach bybee, International law, jack goldsmith, jay bybee, jeremy scahill, jerrold nadler, john yoo, military commisions, mukasey, office of legal counsel, olc, patriot act, roger hollander, rule of law, rumsfeld, russ feingold, schakowsky, search and seizure, signing statements, special prosecutor, state secrets, steven bradbury, torture, torture memos, War Crimes
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Published on Monday, April 20, 2009 by RebelReports
While the leadership of the Democratic Party remains silent on Obama’s refusal to hold torturers accountable, activists are demanding a special prosecutor and calling on Congress to impeach Jay Bybee.
In the Sunday New York Times, the paper’s editors call for the impeachment of Judge Jay Bybee, author of one of the now infamous torture memos released last week. Bybee is now a federal judge. In its editorial, “The Torturers’ Manifesto,” the Times argued:
[The] investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.
These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.
Of course, Rumsfeld, Gonzales, Cheney, Bush and a slew of others belong on trial with Bybee, not just as witnesses in his case and the Times should be calling for that as well. But let’s remember, this is the paper that the Bush administration used as a conveyor belt for its deadly lies so expectations of it should be low.
In a recent piece for Slate, “Impeach Jay Bybee: Why should a suspected war criminal serve as a federal judge?,” Yale law professor Bruce Ackerman lays out some of Bybee’s history:
“Jay Bybee is currently sitting on the 9th U.S. Circuit Court of Appeals in San Francisco. As assistant attorney general in President George W. Bush’s Justice Department, he was responsible for the notorious torture memos that enabled the excesses at Abu Ghraib, Guantanamo, and other places. While John Yoo did most of the staff work for Bybee, Yoo was barely 35 years old – and his memos showed it. They not only took extreme positions; they were legally incompetent, failing to consider many of the most obvious counterarguments. Bybee was 49. He was the grown-up, the seasoned jurist. He had been a law professor and had served as associate counsel to President Bush. When he was promoted to head the Justice Department’s Office of Legal Counsel, he became the final judge of legal matters within the executive branch. Yet his opinion on torture was so poorly reasoned that it was repudiated by his very conservative successor, Jack Goldsmith.”
David Swanson, the ever vigilant crusader for holding Bush era criminals accountable for their crimes, has started a website ImpeachBybee.org which contains resources on Bybee and how people can sign a petition calling for his impeachment.
While Obama has made clear that he does not intend to prosecute CIA torturers and their bosses and lawyers, saying it is “time for reflection, not retribution,” not everyone in his party is in agreement. As previously reported, Representative Jan Schakowsky, has been outspoken on this issue, as have Senator Russ Feingold and Representative Jerrold Nadler. But the leadership of the Democratic Party has, predictably, been silent. Indeed, Nadler was the first Democrat to call for the appointment of a Special Prosecutor. On Friday, Nadler released a statement, saying:
“These memos make it abundantly clear that the Bush administration engaged in torture. Because torture is illegal under American law – as the U.S. is a signatory to the Convention Against Torture – we are legally required to investigate and, when appropriate, to prosecute those responsible for these crimes.
“I commend President Obama for his unequivocal rejection of torture and for his resolve to move forward. The President’s intentions are honorable, but don’t go far enough. All history teaches us that simply shining a light on criminal acts without holding the responsible people accountable will not prevent repetition of those acts.
“I have previously urged Attorneys General Gonzalez and Mukasey to appoint a special prosecutor to investigate the torture abuses of the Bush administration, and now I will convey that same necessity to President Obama and Attorney General Holder. We sorely need an independent investigation that will provide accountability for these terrible crimes.
Meanwhile, Bob Fertik at Democrats.com is circulating a petition to Congress with five primary demands:
1. Demand the appointment of a Special Prosecutor by Attorney General Eric Holder for torture, warrantless wiretapping, and other heinous crimes of the Bush Administration.
2. Prohibit the use of any taxpayer dollars to defend government officials who committed such crimes against lawsuits, or to pay for judgments against them.
3. Impeach Judge Jay Bybee, the torture memo author who serves on the Court of Appeals for the Ninth Circuit in California.
4. Protect human rights by restoring Habeas Corpus and the Fourth Amendment (search and seizure), including repeal of the Orwellian-named Protect America Act, U.S.A. Patriot Act, the FISA Amendments, and Military Commissions Act.
5. End secret government by prohibiting use of “State Secrets,” “Sovereign Immunity” and “Signing Statements.”
The Obama administration has a moral and legal responsibility to prosecute Bush era criminals. The UN has indicated that Obama’s refusal to prosecute torturers may be a violation of International law. As for US law, Michael Ratner, president of the Center for Constitutional Rights said, “Whether or not to prosecute law breakers is not a political decision. Laws were broken and crimes were committed. If we are truly a nation of laws … a prosecutor needs to be appointed and the decisions regarding the guilt of those involved in the torture program should be decided in a court of law.”
Comments like “reflection not retribution” and “look forward, not backwards,” are insulting to the rule of law and the cause of justice.
Yoo Defends His Legal Memos March 7, 2009Posted by rogerhollander in Criminal Justice, Torture.
Tags: 9/11, brad delong, bush administration, chapman university, constitutional rights, dawn johnson, doj, enemy combatants, first amendment, fourth amendment, free speech, George Bush, harsh interrogations, imperial presidency, jason leopold, john yoo, justice department, marshall jarrett, office professional responsibility, olc, opr, robert birgenau, roger hollander, search and seizure, stephen bradbury, terrorism, torture, torture memo, uc berkeley, warrantless wiretapping, waterboarding, yoo memos
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Former Justice Department lawyer John Yoo refuses to back down on his post-9/11 legal opinions that gave President George W. Bush virtually unchecked power, even though many of the memos have since been repudiated for overreaching and inferior scholarship.
In an interview with the Orange County Register, Yoo said he doesn’t “think he would have made the basic decisions differently.” But he acknowledged that he would have polished the memos up a bit and spent more time on legal research had he known the memos would be released publicly.
“These memos I wrote were not for public consumption,” Yoo told the OC Register. “They lack a certain polish, I think – would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice. I certainly would have done that differently.”
According to several of the secret legal memos released Monday, Yoo argued that Bush could, in effect, waive all meaningful constitutional rights of American citizens, including the First Amendment’s protections on free speech and a free press and the Fourth Amendment ban against unreasonable search and seizure, in the name of fighting terrorism.
“First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,” Yoo wrote in an Oct. 23, 2001, memo entitled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.” Yoo added, “The current campaign against terrorism may require even broader exercises of federal power domestically.”
What was striking to some about Yoo’s reference to the First Amendment was that the paragraph was tossed, almost as an after-thought, into a memo about stripping Americans of their Fourth Amendment rights. While saying Bush could order spying on and military attacks against U.S. domestic targets at his own discretion as Commander in Chief, Yoo added that the President could abrogate the rights of free speech and a free press.
Another Yoo memo, dated June 27, 2002, said Bush also could ignore the right of Americans to public trials. In the memo, Yoo asserted that Bush had the power to declare American citizens “enemy combatants” and detain them indefinitely.
When the memos were issued, Yoo was a deputy assistant attorney general at the Justice Department’s powerful Office of Legal Counsel, which advises a President on the limits of his constitutional powers.
In the Orange County Register interview, Yoo complained that the release of the legal memos could inhibit frank advice from lawyers to government leaders.
“I think the job of a lawyer is to give a straight answer to a client,” Yoo said. “One thing I sometimes worry about is that lawyers in the future in the government are going to start worrying about, ‘What are people going to think of me?’
“Your client the President, or your client the justice on the Supreme Court, or your client this senator, needs to know what’s legal and not legal. And sometimes, what’s legal and not legal is not the same thing as what you can do or what you should do.”
In an apparent response to criticism of the quality of his legal opinions, which one former colleague described as “sloppily reasoned,” Yoo said:
“The thing I am really struck with is that when you are in the government, you have very little time to make very important decisions. … You don’t have the luxury to research every single thing and that’s accelerated in war time.
“You really have decisions to make, which you could spend years on. Sometimes what we forget as private citizens, or scholars, or students or journalists for sure [he laughs], is that in hindsight, it’s easier to say, ‘Here’s what I would have done.’ But when you’re in the government, at the time you make the decision, you don’t have that kind of luxury.”
Besides the memos released Monday, Yoo drafted one of the most infamous legal opinions in the history of the Justice Department: an August 2002 document widely referred to as the “torture memo,” which gave the Bush administration the legal justification to subject “war on terror” detainees to harsh interrogations, such as the drowning technique known as waterboarding.
Yoo told the OC Register that the “tradeoff” against using brutal interrogation methods means, “we will get less information about the enemy.”
“Someone can say, ‘I think it’s more important that other countries have a more favorable opinion of us than any intelligence we gain from interrogation.’ That’s a benefit and a cost,” Yoo said.
Yoo, a tenured law professor at the University of California at Berkeley, took a leave of absence in January to teach foreign relations law at Chapman University in Orange, California. While teaching at Berkeley, he was routinely the subject of protests by students and faculty.
Last month, Brad DeLong, a UC Berkeley economics professor, wrote a letter to Robert Birgenau, Berkeley’s Chancellor, urging “out of a concern for justice, a concern for humanity, and a concern for our reputation as a university, to dismiss Professor John Yoo from membership in our university.”
Yoo said he’s not surprised at the reception he received at Berkeley.
“Berkeley is sort of a magnet for hippies, protesters and left-wing activists,” Yoo said. “So I’m not surprised that being one of the few recognizable conservatives on campus that I would generate a lot of heat and friction. It happened well before working in the Bush administration.”
But criticisms of Yoo’s legal opinions have not been limited to “left-wing activists.” Three months before Bush exited the White House, Stephen Bradbury, as acting chief of the OLC, renounced the Oct. 23, 2001, legal opinion.
In an Oct. 6, 2008, memo to the file, Bradbury called Yoo’s opinion about suspending First Amendment protections as “unnecessary” and “overbroad and general and not sufficiently grounded in the particular circumstance of a concrete scenario.”
Bradbury wrote that Yoo’s legal opinion “states several specific propositions that are either incorrect or highly questionable.” But Bradbury attempted to justify or forgive Yoo’s controversial opinion by explaining that it was “the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”
In an op-ed for the Wall Street Journal on Saturday, Yoo complained that his brief comments about waiving the First Amendment were taken out of context by the news media.
“In portraying our answer [regarding Bush's right to ignore the Fourth Amendment], the media has quoted a single out-of-context sentence from our analysis: ‘First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.’”
Yoo said his point was simply to highlight a past judicial opinion about the inherent powers of the President at a time of war. However, the First Amendment line in the memo could have become the legal basis for the Bush administration to take action against or interfere with journalists investigating the government’s behavior or citizens protesting Bush’s war policies.
Dawn Johnsen, who has been tapped by President Barack Obama to head the Office of Legal Counsel, has publicly criticized the work of Yoo and other OLC officials under Bush. In a 2006 Indiana Law Journal article, she said the function of the OLC should be to “provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies.”
Johnsen said Yoo conducted his work as an advocate of Bush administration policy.
“The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action,” said Johnsen, who served in the OLC under President Bill Clinton.
A Justice Department watchdog appears to share that view.
An investigation by H. Marshall Jarrett, head of the Justice Department’s Office of Professional Responsibility, reached “damning” conclusions about numerous cases of “misconduct” in the advice from Yoo and other OLC lawyers in the Bush administration, according to legal sources familiar with the report’s contents.
OPR investigators determined that Yoo blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration’s goals, said the sources who spoke on condition of anonymity because the contents of the report are still classified.
“I wish they weren’t doing it, but I understand why they are,” Yoo told the OC Register in response to a question about Jarrett’s probe. “It is something one would expect. You have to make these kinds of decisions in an unprecedented kind of war with legal questions we’ve never had to think about before.
“We didn’t seek out those questions. 9/11 kind of thrust them on us. No matter what you do, there’s going to be a lot of people who are upset with your decision. If Bush had done nothing, there would be a lot of people upset with his decision, too.
“I understood that while we were doing it, there were going to be people who were critical. I can’t go farther into it, because it’s still going on right now. I’m not trying to escape responsibility for my decisions. I have to wait and see what they say.”
Jason Leopold has launched his own Web site, The Public Record, at www.pubrecord.org.
Memos Provide Blueprint for Police State March 4, 2009Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush.
Tags: al-Qaeda, berkeley law school, bush justice department, cia, constitution, enemy combatants, eric holder, federal maiming statute, first amendment, fourth amendment, freedom of press, Freedom of speech, geneva conventions, international treaties, interrogation, jay bybee, john yoo, marjorie cohn, national lawyers guild, office professional responsibility, opr, police state, roger hollander, steven bradbury, Taliban, torture convention, torture memo, torutre, warrantless searches, warrantless seizures, waterboarding
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Seven ne wly released memos from the Bush Justice Department reveal a concerted strategy to cloak the President with power to override the Constitution. The memos provide “legal” rationales for the President to suspend freedom of speech and press; order warrantless searches and seizures, including wiretaps of U.S. citizens; lock up U.S. citizens indefinitely in the United States without criminal charges; send suspected terrorists to other countries where they will likely be tortured; and unilaterally abrogate treaties. According to the reasoning in the memos, Congress has no role to check and balance the executive. That is the definition of a police state.
Who wrote these memos? All but one were crafted in whole or in part by the infamous John Yoo and Jay Bybee, authors of the so-called “torture memos” that redefined torture much more narrowly than the U.S. definition of torture, and counseled the President how to torture and get away with it. In one memo, Yoo said the Justice Department would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.
What does the federal maiming statute prohibit? It makes it a crime for someone “with the intent to torture, maim, or disfigure” to “cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person.” It further prohibits individuals from “throwing or pouring upon another person any scalding water, corrosive acid, or caustic substance” with like intent.
The two torture memos were later withdrawn after they became public because their legal reasoning was clearly defective. But they remained in effect long enough to authorize the torture and abuse of many prisoners in U.S. custody.
The seven memos just made public were also eventually disavowed, several years after they were written. Steven Bradbury, the Principal Deputy Assistant Attorney General in Bush’s Department of Justice, issued two disclaimer memos – on October 6, 2008 and January 15, 2009 – that said the assertions in those seven memos did “not reflect the current views of this Office.” Why Bradbury waited until Bush was almost out of office to issue the disclaimers remains a mystery. Some speculate that Bradbury, knowing the new administration would likely release the memos, was trying to cover his backside.
Indeed, Yoo, Bybee and Bradbury are the three former Justice Department lawyers that the Office of Professional Responsibility singled out for criticism in its still unreleased report. The OPR could refer these lawyers for state bar discipline or even recommend criminal charges against them.
In his memos, Yoo justified giving unchecked authority to the President because the United States was in a “state of armed conflict.” Yoo wrote, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” Yoo made the preposterous argument that since deadly force could legitimately be used in self-defense in criminal cases, the President could suspend the Fourth Amendment because privacy rights are less serious than protection from the use of deadly force.
Bybee wrote in one of the memos that nothing can stop the President from sending al Qaeda and Taliban prisoners captured overseas to third countries, as long as he doesn’t intend for them to be tortured. But the Convention Against Torture, to which the United States is a party, says that no country can expel, return or extradite a person to another country “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Bybee claimed the Torture Convention didn’t apply extraterritorially, a proposition roundly debunked by reputable scholars. The Bush administration reportedly engaged in this practice of extraordinary rendition 100 to 150 times as of March 2005.
The same day that Attorney General Eric Holder released the memos, the government revealed that the CIA had destroyed 92 videotapes of harsh interrogations of Abu Zubaida and Abd al Rahim al Nashiri, both of whom were subjected to waterboarding. The memo that authorized the CIA to waterboard, written the same day as one of Yoo/Bybee’s torture memos, has not yet been released.
Bush insisted that Zubaida was a dangerous terrorist, in spite of the contention of one of the FBI’s leading al Qaeda experts that Zubaida was schizophrenic, a bit player in the organization. Under torture, Zubaida admitted to everything under the sun – his information was virtually worthless.
There are more memos yet to be released. They will invariably implicate Bush officials and lawyers in the commission of torture, illegal surveillance, extraordinary rendition, and other violations of the law.
Meanwhile, John Yoo remains on the faculty of Berkeley Law School and Jay Bybee is a federal judge on the Ninth Circuit Court of Appeals. These men, who advised Bush on how to create a police state, should be investigated, prosecuted, and disbarred. Yoo should be fired and Bybee impeached.
ACLU Tests Obama With Request for Secret Bush-Era Memos January 28, 2009Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Human Rights, Torture.
Tags: aclu, bush administration, cia interrogations, doj, eric holder, fbi, fourth amendment, freedom of information, interrogatin, justice department, marisa taylor, national security, Obama, roger hollander, search and seizure, secret documents, torture, waterboarding
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28 January 2009, www.truthout.org
by: Marisa Taylor, McClatchy Newspapers
Washington – Dozens of secret documents justifying the Bush administration’s spying and interrogation programs could see the light of day because of a new presidential directive.
The American Civil Liberties Union asked the Obama administration on Wednesday to release Justice Department memos that provided the legal underpinning for harsh interrogations, eavesdropping and secret prisons.
For years, the Bush administration refused to release them, citing national security, attorney-client privilege and the need to protect the government’s deliberative process.
The ACLU’s request, however, comes after President Barack Obama last week rescinded a 2001 Justice Department memo that gave agencies broad legal cover to reject public disclosure requests. Obama also urged agencies to be more transparent when deciding what documents to release under the Freedom of Information Act.
The ACLU now sees a new opening.
”The president has made a very visible and clear commitment to transparency,” said Jameel Jaffer, the director of the ACLU’s National Security Project. “We’re eager to see that put into practice.”
The collection of memos, written by the Justice Department’s Office of Legal Counsel, are viewed as the missing puzzle pieces that could help explain the Bush administration’s antiterrorism policies.
Critics of the prior administration also see the release of the documents as necessary to determine whether former administration officials should be held accountable for legal opinions that justified various antiterrorism measures, including the use of waterboarding, an interrogation technique that simulates drowning.
Attorney General nominee Eric Holder recently denounced waterboarding as torture, but details about how the method was used have remained secret.
”We don’t have anything resembling a full picture of what happened over the last eight years and on what grounds the Bush administration believed it could order such methods,” Jaffer said. “We think the OLC memos are really central to that narrative.”
Even though some key memos have been released or leaked to the media, at least 50 memos remain secret, Jaffer said, including a dozen memos related to the warrantless wiretapping program.
In one case, the ACLU found out about a memo because it was cited in a footnote. The government has refused to elaborate on the 2002 document, other than to describe it as a discussion of the Fourth Amendment’s application to domestic military operations.
Jaffer said that it could reveal whether the Justice Department was advising the National Security Agency that the Fourth Amendment didn’t apply to its eavesdropping program, but he’s not certain. The amendment guards against unreasonable search and seizure.
”There are about a dozen memos where we just have one or two lines about the subject matter and that’s it,” he said. “When you put it all together you realize how much is still being held secret.”
The ACLU originally sought the documents by filing a series of lawsuits under FOIA.
Federal judges have ordered the release of some records, including thousands of pages documenting the FBI’s concerns about the interrogation program.
The Bush administration, however, fought the release of most of the records.
In September 2007, U.S. District Judge Henry Kennedy rejected the government’s claim of secrecy and ordered the Justice Department to submit surveillance documents for his review.
The ACLU has asked another judge to find CIA officials in contempt after revelations that videotapes of CIA interrogations had been destroyed. A criminal investigation is ongoing.
Since Obama’s directive on disclosure, Melanie Ann Pustay, the director of Justice’s Office of Information and Privacy, instructed federal officials that they should process requests for records with a “clear presumption in favor of disclosure, to resolve doubts in favor of openness, and to not withhold information based on ‘speculative or abstract fears.’”
In another indication that the ACLU may get its way, the nominee to head the OLC, Dawn Johnsen, has previously indicated she thinks that such memos should generally be released.
Before her nomination, Johnsen wrote in an article for Slate, the internet magazine, that the central question in the debate was whether OLC could issue “binding legal opinions that in essence tell the president and the executive branch that they need not comply with existing laws – and then not share those opinions and that legal reasoning with Congress or the American people? I would submit that clearly the answer to that question must be no.”
Nat Hentoff: What Obama Doesn’t Know December 18, 2008Posted by rogerhollander in Barack Obama, George W. Bush.
Tags: cheney, cia, Condoleezza Rice, edgar hoover, eric holder, fbi, FISA, fourth amendment, frank church, George Bush, Homeland Security, john yoo, justice department, leahy, mukasey, nat hentoff, national security agency, nsa, Obama, orwell, privacy rights, Robert Mueller, roger hollander, rumsfeld, special operations, specter, surveillance, torture, transition team
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Much has been hidden from the new president by the Bush team
Nat Hentoff, Village Voice
December 18, 2008
No presidential transition team in recent history has ranged as widely as Barack Obama’s in its attempt to find out what minefields he may be walking into. For example,The Washington Post notes, 10 teams of 135 explorers, wearing yellow badges, have descended on dozens of Bush administration offices and agencies to look into their programs, policies, and records.
However, I keep remembering a dark warning to the successors of the Bush-Cheney legacy in a January 3 letter to The New York Times by Arthur Gunther of Blauvelt, New York: “Mr. Bush and Mr. Cheney have so deeply embedded tacit approval for illegal acts in government agencies that wrongdoing by their philosophical sympathizers will continue in shadow operations for years to come.”
How many of those shadow sympathizers will remain deep in the CIA, the FBI, Homeland Security—and, as I shall later emphasize, in the omnivorous National Security Agency, with its creatively designed submarine that, on the bottom of the ocean floor, will be tapping into foreign cables carrying overseas communications, including those of Americans?
Will the Obama sleuths be able to peer into plans of the military Special Operations forces around the world, whose SWAT-style moves can quickly inflame even our allies? Covertly authorized four years ago by Donald Rumsfeld, these warriors are empowered to attack secretly any apparent terrorist venture, anywhere. No press allowed.
Will the new president, cognizant of the proliferation of retaliatory nuclear arms, presumably among our enemies, insist on signing off on each of those Special Operations forays?
Back at home, will President Obama order the countermanding of the FBI’s return to the unbounded surveillance practices of J. Edgar Hoover? In an order implemented as recently as this December—by FBI Director Robert Mueller (who says he’d like to stay on) and Attorney General Michael Mukasey—the FBI can start an investigation without requiring any evidence of wrongdoing. That is not change we can believe in.
Among many Obama voters, much optimism is created when he pledges that we will not torture. But even if he makes his intent official, emphasizes Mark Kukis (Time, December 8), “the Executive Order would have to be sweeping and reach deep into the government’s darker recesses. That’s because the Bush team has written so many legal memos okaying various techniques for interrogators working at a wide range of agencies [not just the CIA]. Some of these opinions have been disclosed publicly, but an unknown number remain classified.”
It will be up to the new Attorney General, Eric Holder—not a notably passionate constitutionalist in his previous role in the Justice Department—to, as Kukis adds, “issue new legal guidance that supersedes all those legal opinions, seen or unseen, if he hopes to prevent a return to such practices in the future” (emphasis added).
So, keep an eye on Mr. Holder. And if he does bury those John Yoo–style torture memos and other (and, here, I use the term loosely) “legal opinions,” Holder should be tasked by the president to reveal what they permitted.
For a long time, Senate Judiciary chairman Pat Leahy, a Democrat, and leading Republican member Arlen Specter have been trying to get those deeply hidden authorizations for war crimes that contradicted the broken-record insistence (”We do not torture!”) of George W. Bush and Condoleezza Rice.
Of all our intelligence agencies, the most unabashedly un-American is the NSA, because it has the continually expanding technological resources to make George Orwell’s Big Brother look like a cantankerous infant. No American president has come close to reining in the NSA, let alone bringing its officials up on charges of murdering our Fourth Amendment privacy rights.
In case you’ve forgotten, those specific constitutional protections were a result of the general searches conducted by British soldiers that turned American colonists’ homes and offices upside down. NSA’s eavesdropping on our phones and Internet activities have largely destroyed some of our rights as mentioned in the Constitution: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall be issued but on probable cause. . . .” (Computers and the Internet are now included.)
Of all the investigators of the formidably guarded privacy of the NSA, the most feared by these omnipresent spies is James Bamford, who for years has been penetrating their secrets in his books—Body of Secrets, The Puzzle Palace, etc. This year, he’s gone much deeper into that bottomless cavern than ever before, in The Shadow Factory: The Ultra-Secret NSA From 9/11 to the Eavesdropping on America (Doubleday). I hope President Obama reads this book himself and demands that his intelligence directors also plumb it and give him their reactions—or better yet, their confessions of complicity with NSA.
There will be more on the “Shadow Factory” next week, as well as on Senator Obama’s startling (to me) vote for the FISA (Foreign Intelligence Surveillance Act) Amendments of 2008—after he had insisted he would filibuster against its passage. In view of the sweeping spying powers that this law, championed by George W. Bush, provides the NSA, will President Obama be a dependable restorer of at least some of our privacy rights?
John McCain, of course, would not have been.
Bamford ends his new book by bringing back one of my Bill of Rights heroes, the late Senator Frank Church of Idaho, whose Senate investigating committee, during the 1970s, first uncovered the frightening range and depth of NSA’s spying on us. “That capability,” said Church, “at any time could be turned around on the American people, and no American would have any privacy left, such [is the NSA's] capability to monitor everything. . . . There would be no place to hide. . . . If this government ever became a tyranny . . . the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because resistance . . . is within the reach of the government to know.”
After quoting that warning from Frank Church, Bamford ends: “There is now the capacity to make tyranny total in America. Only law ensures that we never fall into that abyss—the abyss from which there is no return.” Are you listening, President Obama?