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Pete Seeger and the NSA February 4, 2014

Posted by rogerhollander in Art, Literature and Culture, Barack Obama, Civil Liberties, Constitution, Criminal Justice, Democracy, History, Police.
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Roger’s note: Of course, the recent revelations about NSA outdoing George Orwell is no laughing matter.  But if you need a moment of lightness today, click in the first paragraph on Pete’s testimony before HUAC.  It reads like a Monty Python skit.  With the persecutions of Chelsea Manning, Julian Assange, Edward Snowden among others, and the hounding to death of Aaron Swartz, the U.S. government is just getting started in putting its mega data collection to use.  When the political protests heat up to the next level, I believe we are going to see the same kind of witch hunts that we saw under the era of Joseph McCarthy, only much worse.  Those who lived through that period of history can tell you what it is like to be persecuted by the government for your First Amendment protected beliefs.  Perhaps what is most frightening is the militarization of local police departments, and we saw what state violence against legitimate political protest will look like during the brutal repression of the Occupy Wall Street Movement.  Whether you are brought up before a Kafkaesque like official United States government kangaroo court or bashed over the head with police baton or run down by a Homeland Security issues armored vehicle, the chilling result is the same: fascism in our day.  
That it occurs under the auspices of the affable and articulate constitutional lawyer who is the first Black American president or the feisty and charming soon to be first woman American president, will not do much to soften the blow.

 

Published on Tuesday, February 4, 2014 by Deeplinks Blog/EFF

by Cindy Cohn

I am not going to answer any questions as to my association, my philosophical beliefs, or how I voted in any election, or any of these private affairs. I think these are very improper questions for any American to be asked, especially under such compulsion as this.

Pete Seeger, 1955, testimony pursuant to subpoena before the House Un-American Activities Committee.

Pete Seeger (Image: EFF)

The world lost a clear, strong voice for peace, justice, and community with the death of singer and activist Pete Seegerlast week. While Seeger was known as an outspoken musician not shy about airing his political opinions, it’s also important to remember he was once persecuted for those opinions, despite breaking no law. And the telling of this story should give pause to those who claim to be unconcerned about the government’s metadata seizure and search programs that reveal our associations to the government today.

In 1955, Seeger was called before the House Un-American Activities Committee, where he defiantly refused to answer questions about others who he associated with and who shared his political beliefs and associations, believing Congress was violating his First Amendment rights. He was especially concerned about revealing his associations:

I will be glad to tell what songs I have ever sung, because singing is my business. . . .  But I decline to say who has ever listened to them, who has written them, or other people who have sung them.

But if the same thing were to happen today, a Congressional subpoena and a public hearing wouldn’t be necessary for the government to learn all of our associations and other “private affairs.” Since the NSA has been collecting and keeping them, they could just get that same information from their own storehouses of our records.

According to the Constitution, the government is supposed to meet a high standard before collecting this private information about our associations, especially the political ones that the Congressmen were demanding of Seeger. For instance, under the First Amendment, it must“serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”

It doesn’t matter whether the government wants associations to look for possibly “illegal” activities of civil rights activists, Communist sympathizers, anarchists, trade unionists, war resisters, gun rights activists, environmental activists, drug legalization advocates, or wants to go after legitimate criminals and potential terrorists, if the government can’t justify the collection of this “metadata” on this “strict scrutiny” standard, they’re not allowed to collect any of it. Yet right now, they collect all of it.

We’re still learning of all the ways the government is able to track our associations without anything like the due process and standards required by the First and Fourth Amendments, but it is the centerpiece of the NSA’s mass telephone records collection program under Patriot Act section 215, which EFF is fighting with our First Unitarian Church v. NSA case that focuses on the right of association.  Our lead client, the First Unitarian Church of Los Angeles, had its own role in resisting the House Un-American Activities Committee. It’s also part and parcel of the mass collection of content and metadata of people all around the world under section 702 of the FISA Amendments Act. And it’s a real concern even if the companies hold the data, as we’ve seen with the FBI’s self-certified National Security Lettersand the Hemisphere program, where AT&T employees are embedded in government investigations so that they can more readily search through our phone records for the FBI, the DEA and others.

Each of these programs effectively allows the government to do to you what Pete Seeger refused to let them do to him—track your associations, beliefs and other private affairs without proper legal protections.  And they can do this at scale that was unimaginable in 1955, thanks to the digital nature of our communications, the digital tools that allow them to search automatically rather than by hand and the fact that so much more about these private affairs is in the hands of third parties like our phone and internet companies.

While Seeger escaped jail, he was convicted of contempt for his failure to answer these questions. Thankfully Joseph McCarthy and the Un-American Activities Committees were later widely condemned, and Americans understandably look back sadly and with embarrassment on time when the Committee forced Americans to reveal their own associations, along with the associations and beliefs of others.  With the passing of moral and artistic heroes like Seeger, we should redouble our efforts to make sure that our “private affairs” remain safe and the government’s ability to access them remains subject to careful controls.

Join us on February 11 for the day we fight back against mass surveillance.

This work is licensed under a Creative Commons Attribution-Share Alike 3.0 License.
Cindy Cohn

Cindy Cohn is legal director for the Electronic Frontier Foundation (EFF), as well as its general counsel, coordinating over 40 national class action lawsuits against the telecommunications carriers and the government seeking to stop warrantless NSA surveillance

NSA Intercepting Laptops Bought Online to Install Spy Malware December 30, 2013

Posted by rogerhollander in Civil Liberties, Constitution, Surveillance, Surveillance State.
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Roger’s note: I think George Orwell underestimated the problem.  According to Glenn Greenwald, “The NSA can literally watch every keystroke you make.”

 

 

The NSA’s TAO hacking unit is considered to be the intelligence agency’s top secret weapon

- Common Dreams staff

This National Security Agency complex in San Antonio, Texas, located in a former Sony chip factory, is one of the central offices of the intelligence agency’s Tailored Access Operations, the NSA’s top operative unit. It’s something like a squad of plumbers that can be called in when normal access to a target is blocked.

Germany’s Der Spiegel is reporting Sunday that the US National Security Agency (NSA), working with the CIA and FBI, has been intercepting laptops and other electronics bought online before delivery to install malware and other spying tools.

According to Der Spiegel, the NSA diverts shipping deliveries to its own “secret workshops” to install the software before resending the deliveries to their purchasers.

Elite hackers working for the NSA’s Tailored Access Operations (TAO) division are considered to be the intelligence agency’s top secret weapon.

The NSA’s TAO reportedly has backdoor access to many hardware and software systems from major tech companies such as Cisco, Dell, and Western Digital and others. The NSA exploits Microsoft Windows error reports to find weak spots in compromised machines in order to install Trojans and other viruses.

The Der Spiegel report also notes that the NSA has successfully tapped into some of the massive, under-sea fiber-optic cables that connect the global data infrastructure, in particular the “SEA-ME-WE-4″ cable system.

“This massive underwater cable bundle connects Europe with North Africa and the Gulf states and then continues on through Pakistan and India,” Der Spiegel reports, ”all the way to Malaysia and Thailand. The cable system originates in southern France, near Marseille. Among the companies that hold ownership stakes in it are France Telecom, now known as Orange and still partly government-owned, and Telecom Italia Sparkle.”

From Der Spiegel:

To conduct those types of operations, the NSA works together with other intelligence agencies such as the CIA and FBI, which in turn maintain informants on location who are available to help with sensitive missions. This enables TAO to attack even isolated networks that aren’t connected to the Internet. If necessary, the FBI can even make an agency-owned jet available to ferry the high-tech plumbers to their target. This gets them to their destination at the right time and can help them to disappear again undetected after even as little as a half hour’s work.

Responding to a query from SPIEGEL, NSA officials issued a statement saying, “Tailored Access Operations is a unique national asset that is on the front lines of enabling NSA to defend the nation and its allies.” The statement added that TAO’s “work is centered on computer network exploitation in support of foreign intelligence collection.” The officials said they would not discuss specific allegations regarding TAO’s mission.

Sometimes it appears that the world’s most modern spies are just as reliant on conventional methods of reconnaissance as their predecessors.

Take, for example, when they intercept shipping deliveries. If a target person, agency or company orders a new computer or related accessories, for example, TAO can divert the shipping delivery to its own secret workshops. The NSA calls this method interdiction. At these so-called “load stations,” agents carefully open the package in order to load malware onto the electronics, or even install hardware components that can provide backdoor access for the intelligence agencies. All subsequent steps can then be conducted from the comfort of a remote computer.

These minor disruptions in the parcel shipping business rank among the “most productive operations” conducted by the NSA hackers, one top secret document relates in enthusiastic terms. This method, the presentation continues, allows TAO to obtain access to networks “around the world.”

Even in the Internet Age, some traditional spying methods continue to live on.

* * *

An aerial view of National Security Administration (NSA) headquarters in Fort Meade, MD

Congress OKs 30,000 flying drones spying on Americans across U.S. cities February 10, 2012

Posted by rogerhollander in Civil Liberties, Democracy.
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By J. D. Heyes

(about the author)

opednews.com

This article cross-posted from Natural News

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?
In case you didn’t know it — and you probably didn’t — Congress, with little fanfare, passed an FAA reauthorization bill last week President Obama is expected to sign into law that will make it much  easier for the government to put scores of unmanned spy drones into  American skies.
Not only that, the legislation authorizes the  Federal Aviation Administration to develop regulations for the testing  and licensing of commercial drones by 2015. If the law takes full  effect, it is believed as many as 30,000 drones could be hovering over the U.S. by 2020.
The drones, which are widely used in Afghanistan to spot and target  suspected insurgents and Taliban operatives in that country as well as  neighboring Pakistan, have been used by American government agencies  like U.S. Customs and Border Protection, a division of the Department of Homeland Security, for a few years, in an observation/surveillance  capacity. DHS has also used drones in disaster-relief operations, and  advocates say they can be successfully employed to fight fires and  locate missing hikers.
Say Good-bye to Privacy
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.
Jennifer Lynch, an attorney with the Electronic Frontier Foundation, a watchdog group, added that her organization is particularly  “concerned about the implications for surveillance by government  agencies.”
Her agency is suing the FAA to determine just how many certificates the agency has already issued to police, government  agencies and a smattering of private research institutions to allow them to fly drones in U.S. airspace. The agency says it handed out 313  certificates in 2011; by year’s end, 295 were still active “but the FAA  refuses to disclose which agencies have the certificates and what their  purposes are,” said the Times.
“We need a list so we can ask  [each agency], ‘What are your policies on drone use? How do you protect  privacy? How do you ensure compliance with the Fourth Amendment?'” Lynch said.
“Currently, the only barrier to the routine use of drones  for persistent surveillance are the procedural requirements imposed by  the FAA for the issuance of certificates,” Amie Stepanovich, national  security counsel for the Electronic Privacy Information Center, told the paper.
Surveillance Society
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.

 

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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US Supreme Court Deals Mortal Blow to Privacy June 5, 2011

Posted by rogerhollander in Civil Liberties, Criminal Justice.
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Published on Sunday, June 5, 2011 by the Atlanta Journal-Constitution

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.

© 2011 The Atlanta Journal-Constitution

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Michael Mears
 Michael Mears, an associate professor of law at Atlanta’s John Marshall Law School, is the former director of the Georgia Public Defender Standards Council

George W. Obama January 15, 2010

Posted by rogerhollander in Barack Obama, Criminal Justice, Human Rights, Torture.
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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.”

  • Pat Benic/Newscom

    What a disappointment a year makes.

    What a disappointment a year makes.

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.”

Like torture.

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?

Momentum Gains in Movement to Impeach Bush Torture Lawyer Turned Federal Judge April 20, 2009

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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.

by Jeremy Scahill

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.

Jeremy Scahill is the author of the New York Times bestseller Blackwater: The Rise of the World’s Most Powerful Mercenary Army. He is currently a Puffin Foundation Writing Fellow at the Nation Institute.

Do the Secret Bush Memos Amount to Treason? Top Constitutional Scholar Says Yes March 26, 2009

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Legal expert Michael Ratner calls the legal arguments made in the infamous Yoo memos, “Fuhrer’s law.”

By Naomi Wolf, AlterNet. Posted March 25, 2009.

In early March, more shocking details emerged about George W. Bush legal counsel John Yoo’s memos outlining the destruction of the republic.

The memos lay the legal groundwork for the president to send the military to wage war against U.S. citizens; take them from their homes to Navy brigs without trial and keep them forever; close down the First Amendment; and invade whatever country he chooses without regard to any treaty or objection by Congress.

It was as if Milton’s Satan had a law degree and was establishing within the borders of the United States the architecture of hell.

I thought this was — and is — certainly one of the biggest stories of our lifetime, making the petty burglary of Watergate — which scandalized the nation — seem like playground antics. It is newsworthy too with the groundswell of support for prosecutions of Bush/Cheney crimes and recent actions such as Canadian attorneys mobilizing to arrest Bush if he visits their country.

The memos are a confession. The memos could not be clearer: This was the legal groundwork of an attempted coup. I expected massive front page headlines from the revelation that these memos exited. Almost nothing. I was shocked.

As a non-lawyer, was I completely off base in my reading of what this meant, I wondered? Was I hallucinating?

Astonished, I sought a reality check — and a formal legal read — from one of the nation’s top constitutional scholars (and most steadfast patriots), Michael Ratner of the Center for Constitutional Rights, which has been at the forefront of defending the detainees and our own liberties.

Here is our conversation:

Naomi Wolf: Michael, can you explain to a layperson what the Yoo memos actually mean?’

Michael Ratner: What they mean is that your book looks moderate in respect to those issues now. This — what is in the memos — is law by fiat.

I call it “Fuhrer’s law.” What those memos lay out means the end of the system of checks and balances in this country. It means the end of the system in which the courts, legislature and executive each had a function and they could check each other.

What the memos set out is a system in which the president’s word is law, and Yoo is very clear about that: the president’s word is not only law according to these memos, but no law or constitutional right or treaty can restrict the president’s authority.

What Yoo says is that the president’s authority as commander in chief in the so-called war on terror is not bound by any law passed by Congress, any treaty, or the protections of free speech, due process and the right to be free from unreasonable searches and seizures. The First, Fourth and Fifth amendments — gone.

What this actually means is that the president can order the military to operate in the U.S. and to operate without constitutional restrictions. They — the military —  can pick you or me up in the U.S. for any reason and without any legal process. They would not have any restrictions on entering your house to search it, or to seize you. They can put you into a brig without any due process or going to court. (That’s the Fourth and Fifth amendments.)

The military can disregard the Posse Comitatus law, which restricts the military from acting as police in the the United States. And the president can, in the name of wartime restrictions, limit free speech. There it is in black and white: we are looking at one-person rule without any checks and balances — a lawless state. Law by fiat.

Who has suspended the law this way in the past? It is like a Caesar’s law in Rome; a Mussolini’s law in Italy; a Fuhrer’s law in Germany; a Stalin’s law in the Soviet Union. It is right down the line. It is enforcing the will of the dictator through the military.

NW: The mainstream media have virtually ignored these revelations, though it seems to me this is the biggest news since Pearl Harbor.

MR: I think that’s right. We had a glimmering of the blueprint for some of this — when they picked up Jose Padilla, the military went to a prison and snatched an American citizen as if they had a perfect right to do so.

Now we can see that these memos laid the legal groundwork for such actions. We knew the military could do this to an individual. We did not know the plan was to eliminate First Amendment constitutional rights for the entire population.

NW: If Bush only wanted these powers in order to prosecute a war on terror, why does he need to suspend the First Amendment? Isn’t that the smoking gun of a larger intention toward the general population?

MR: Part of this plan was actually implemented: for instance, they tried to keep people like Padilla from getting to a magistrate. They engaged in the wiretapping, because according to these memos there was no Fourth Amendment.

They had to be planning some kind of a takeover of the United States to be saying they could simply abolish the First Amendment if the president believed it was necessary in the name of national security. It lays the groundwork for what could have been a massive military takeover of the United States.

Here they crept right up and actually implemented part of the plan, with Padilla, with the warrantless wiretapping. Yet they are saying in the White House and in Congress that it is looking backward to investigate the authors of these memos and those who instructed Yoo and others to write them.

But investigation and prosecutions are really looking forward — to say we need the deterrence of prosecution so this does not happen again.

NW: What about the deployment of three brigades in the U.S.? How should we read that?’

MR: With terrorism as less of a concern to many, but now with the economy in tatters there is a lot more militant activism in U.S. — the New School and NYU student takeovers, protests around the country and strikes are just the beginning. I think governments are now concerned over people’s activism, and people’s anger at their economic situation. I don’t think those brigades can be detached from the idea that there might well be a huge amount of direct-action protest in the U.S.

There could have also been a closer election that could have been stolen easily and then a huge protest. Those troops would have been used to enforce the will of the cabal stealing the election.

NW: As a layperson, I don’t fully understand what powers the memos actually manifest. Are they theoretical or not just theoretical? What power did the memos actually give Bush?

MR: They were probably, in fact almost for sure, written in cahoots with the administration — [Karl] Rove, [Dick] Cheney — to give them legal backing for what they planned or wanted to carry out.

What I assume happened here is people like Cheney or his aides go to the Office of Legal Counsel and say, “We are going to need legal backing, to give a face of legality to what we are doing and what we are planning.” When the president then signs a piece of paper that says, “OK, military, go get Jose Padilla,” these memos give that order a veneer of legality.

If you are familiar with the history of dictators, coups and fascism (as I know you are), they (the planners) prefer a veneer of legality. Hitler killed 6 million Jews with a veneer of legality — getting his dictatorial powers through the Reichstag and the courts.

These memos gave the Bush administration’s [lawless] practices the veneer of legality.

NW: So are you saying that these memos actually created a police state that we did not know about?

MR: If you look at police state as various strands of lawlessness, we knew about some of this lawlessness even before this latest set of memos.

But the memos revealed how massive the takeover of our democracy was to be — that this wasn’t just going to be a few individuals here or there who suffered the arrows of a police state.

These memos lay the groundwork for a massive military takeover of the United States in cahoots with the president. And if that’s not a coup d’etat then, nothing is.

NW: Can I ask something? I keep thinking about the notion of treason. In America now, people tend to read the definition of treason in the Constitution as if they are thinking of a Tokyo Rose or an American citizen acting as an agent for an enemy state — very much a World War II experience of the traitor to one’s country.

But I’ve been reading a lot of 16th and 17th century history, and it seems to me that the founders were thinking more along the lines of English treason of that era — small groups of Englishmen, usually nobility, who formed cabals and conspired with one another to buy or recruit militias to overthrow the crown or Parliament.

The notion that a group might conspire in secret to overthrow the government is not a wild, marginal concept, it is a substantial part of European, and especially British, Renaissance and Reformation-era history and would have been very much alive in the minds of the Enlightenment-era founders. (I just visited the Tower of London where this was so frequent a charge against groups of English subjects that there is a designated Traitor’s Gate.)

So clearly you don’t have to act on behalf of another state to commit treason. The Constitution defines it as levying war against the United States or giving aid and comfort to its enemies. It says nothing about the enemy having to be another state.

When the Constitution was drafted, the phrase “United States” barely referred to a singular country; it referred to a new federation of many united states. They imagined militias rising up against various states; it was not necessarily nation against nation.

Surely, when we have evidence Bush prepared the way to allow the military to imprison or shoot civilians in the various states and created law to put his own troops over the authority of the governors and the national guard of the various states, and when the military were sent to terrorize protesters in St. Paul, [Minn.], Bush was levying war in this sense against the united states?

Hasn’t Bush actually levied war against Minnesota? And if our leaders and military are sworn to protect and defend the Constitution, and there is clear evidence now that Bush and his cabal intended to do away with it, are they not our enemies and giving aid and comfort to our enemies? Again, “enemy” does not seem to me to be defined in the Constitution as another sovereign state.

MR: You are right. Treason need not involve another state. Aaron Burr was tried for treason. I do think that a plan to control the military, use it in the United States contrary to law and the Constitution and employ it to levy a war or takeover that eliminates the democratic institutions of the country constitutes treason, even if done under the president of the United States.

The authority given by these memos that could be used to raid every congressional office, raid and search every home, detain tens of thousands, would certainly fit a definition of treason.

This would be the president making war against the institutions of the United States.

Naomi Wolf is the author of Give Me Liberty (Simon and Schuster, 2008), the sequel to the New York Times best-seller The End of America: A Letter of Warning to a Young Patriot (Chelsea Green, 2007).

Yoo Defends His Legal Memos March 7, 2009

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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.

By Jason Leopold
March 7, 2009, www.consortiumnews.com  

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.

Inhibiting Advice

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’s Tenure

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.

Obama’s Appointee

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, 2009

Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush.
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by Marjorie Cohn

Seven newly 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.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and President of the National Lawyers Guild.  She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and co-author of Rules of Disengagement: The Politics and Honor of Military Dissent (with Kathleen Gilberd), which will be published this winter by PoliPointPress.  Her articles are archived at www.marjoriecohn.com (The views expressed in this article are solely those of the writer; she is not acting on behalf of the National Lawyers Guild or Thomas Jefferson School of Law)

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