Tags: Canada, canada government, canada indigenous, canada mining, environment, First Nations, idle no more, indigenous peoples, martin lukacs, roger hollander, rule of law, sovereignty summer, Stephen Harper, tar sands
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First Nations people – and the decision of Canadians to stand alongside them – will determine the fate of the planet
In a boardroom in a soaring high-rise on Wall Street, Indigenous activist Arthur Manuel is sitting across from one of the most powerful financial agents in North America.
It’s 2004, and Manuel is on a typical mission. Part of a line of distinguished Indigenous leaders from western Canada, Manuel is what you might call an economic hit-man for the right cause. A brilliant thinker trained in law, he has devoted himself to fighting Canada’s policies toward Indigenous peoples by assailing the government where it hurts most – in its pocketbook.
Which is why he secured a meeting in New York with a top-ranking official at Standard & Poor’s, the influential credit agency that issues Canada’s top-notch AAA rating. That’s what assures investors that the country has its debts covered, that it is a safe and profitable place to do business.
This coveted credit rating is Manuel’s target. His line of attack is to try to lift the veil on Canada’s dirty business secret: that contrary to the myth that Indigenous peoples leech off the state, resources taken from their lands have in fact been subsidizing the Canadian economy. In their haste to get at that wealth, the government has been flouting their own laws, ignoring Supreme Court decisions calling for the respect of Indigenous and treaty rights over large territories. Canada has become very rich, and Indigenous peoples very poor.
In other words, Canada owes big. Some have even begun calculating how much. According to economist Fred Lazar, First Nations in northern Ontario alone are owed $32 billion for the last century of unfulfilled treaty promises to share revenue from resources. Manuel’s argument is that this unpaid debt – a massive liability of trillions of dollars carried by the Canadian state, which it has deliberately failed to report – should be recognized as a risk to the country’s credit rating.
How did the official who could pull the rug under Canada’s economy respond? Unlike Canadian politicians and media who regularly dismiss the significance of Indigenous rights, he took Manuel seriously. It was evident he knew all the jurisprudence. He followed the political developments. He didn’t contradict any of Manuel’s facts.
He no doubt understood what Manuel was remarkably driving at: under threat of a dented credit rating, Canada might finally feel pressure to deal fairly with Indigenous peoples. But here was the hitch: Standard & Poor’s wouldn’t acknowledge the debt, because the official didn’t think Manuel and First Nations could ever collect it. Why? As author Naomi Klein, who accompanied Manuel at the meeting, remembers, his answer amounted to a realpolitik shoulder shrug.
“Who will able to enforce the debt? You and what army?”
This was his brutal but illuminating admission: Indigenous peoples may have the law on their side, but they don’t have the power. Indeed, while Indigenous peoples’ protests have achieved important environmental victories – mining operations stopped here, forest conservation areas set up there – these have remained sporadic and isolated. Canada’s country-wide policies of ignoring Indigenous land rights have rarely been challenged, and never fundamentally.
Until now. If it’s only a social movement that can change the power equation upholding the official’s stance, then the Idle No More uprising may be it. Triggered initially in late 2012 by opposition to the Conservative government’s roll-back of decades of environmental protection, this Indigenous movement quickly tapped into long-simmering indignation. Through the chilly winter months, Canada witnessed unprecedented mobilizations, with blockades and round-dances springing up in every corner of the country, demanding a basic resetting of the relationship between Canada and Indigenous peoples.
Money is not the main form this justice will take. First Nations desperately need more funding to close the gap that exists between them and Canadians. But if Indigenous peoples hold a key to the Canadian economy, the point is to use this leverage to steer the country in a different direction. “Draw that power back to the people on the land, the grassroots people fighting pipelines and industrial projects,” Manuel says. “That will determine what governments can or cannot do on the land.”
The stakes could not be greater. The movement confronts a Conservative Canadian government aggressively pursuing $600 billion of resource development on or near Indigenous lands. That means the unbridled exploitation of huge hydrocarbon reserves, including the three-fold expansion of one of the world’s most carbon-intensive projects, the Alberta tar sands. Living closest to these lands, Indigenous peoples are the best and last defence against this fossil fuel scramble. In its place, they may yet host the energy alternatives – of wind, water, or solar.
No surprise, then, about the government’s basic approach toward First Nations: “removing obstacles to major economic development.” Hence the movement’s next stage – a call for defiance branded Sovereignty Summer – is to put more obstacles up. The assertion of constitutionally-protected Indigenous and treaty rights – backed up by direct action, legal challenges and massive support from Canadians – is exactly what can create chronic uncertainty for this corporate and government agenda. For those betting on more than a half-trillion in resource investments, that’s a very big warning sign.
Industry has taken notice. A recent report on mining dropped Canada out of the top spot for miners: “while Canadian jurisdictions remain competitive globally, uncertainties with Indigenous consultation and disputed land claims are growing concerns for some.” And if the uncertainty is eventually tagged with a monetary sum, then Canada will, as Manuel warned Standard & Poor’s, face a large and serious credit risk. Trying to ward off such a threat, the government is hoping to lock mainstream Indigenous leaders into endless negotiations, or sway them with promises of a bigger piece of the resource action.
But this bleak outlook intent on a final ransacking of the earth doesn’t stand up to the vision the movement offers Canadians. Implementing Indigenous rights on the ground, starting with the United Nations Declaration on the Rights of Indigenous Peoples, could tilt the balance of stewardship over a vast geography: giving Indigenous peoples much more control, and corporations much less. Which means that finally honouring Indigenous rights is not simply about paying off Canada’s enormous legal debt to First Nations: it is also our best chance to save entire territories from endless extraction and destruction. In no small way, the actions of Indigenous peoples – and the decision of Canadians to stand alongside them – will determine the fate of the planet.
This new understanding is dawning on more Canadians. Thousands are signing onto educational campaigns to become allies to First Nations. Direct action trainings for young people are in full swing. As Chief Allan Adam from the First Nation in the heart of the Alberta oil patch has suggested, it might be “a long, hot summer.”
Sustained action that puts real clout behind Indigenous claims is what will force a reckoning with the true nature of Canada’s economy – and the possibility of a transformed country. That is the promise of a growing mass protest movement, an army of untold power and numbers.
‘Time for a Reckoning’: UN Investigator says US/UK Must Account for Torture, Human Rights Violation March 5, 2013Posted by rogerhollander in Barack Obama, Dick Cheney, George W. Bush, Human Rights, Torture, Uncategorized, War on Terror.
Tags: ben emmerson, bush/cheney, CIA torture, eric holder, human rights, International law, jon queally, nuremberg, rendition, roger hollander, rule of law, torture, War Crimes, war on terror
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‘Words are not enough. Platitudinous repetition of statements affirming opposition to torture ring hollow,’ says Ben Emmerson’
If the US and UK governments truly want to rebuke the role that kidnapping, torture and prolonged detention without trial played—and in some cases continues to play—in their declared “war against terrorism” than they must go beyond words and release the still disclosed internal reports that document such abuses.
Ben Emmerson: failure to release intelligence reports shows seeming unwillingness by UK and US to face up to international crimes. Photograph: Sarah Lee for the Guardian
That’s the argument of Ben Emmerson, the UN special rapporteur on the promotion and protection of human rights while countering terrorism, who spoke out on Monday against the secrecy and denial that persists within both governments.
Perpetrators and architects of such programs should be held accountable and face justice, he declared in both an official report and in a speech delivered Monday.
“Despite this clear repudiation of the unlawful actions carried out by the Bush-era CIA, many of the facts remain classified, and no public official has so far been brought to justice in the United States,” Emmerson writes in the report written for the the U.N. Human Rights Council, which he will present Tuesday.
Prefacing the report in Geneva on Monday, Emmerson criticized “a policy of de facto immunity for public officials who engaged in acts of torture, rendition and secret detention, and their superiors and political masters who authorized these acts.”
Citing the hypocrisy of such secrecy and the damage done to the reputation of both countries abroad, Emmerson continued:
“Words are not enough. Platitudinous repetition of statements affirming opposition to torture ring hollow to many in those parts of the Middle East and North Africa that have undergone, or are undergoing, major upheaval, since they have first-hand experience of living under repressive regimes that used torture in private whilst making similar statements in public.”
“The scepticism of these communities can only be reinforced if western governments continue to demonstrate resolute indifference to the crimes committed by their predecessor administrations.”
Shortly before the speech in Geneva, Emmerson told the Guardian it was time for “a reckoning with the past”. He added:
“In South America it took up to 30 years before the officials responsible for crimes like these were held fully accountable. With the conspiracy organised by ther Bush-era CIA it has taken a decade, but the campaign for securing the right to truth has now reached a critical point.
“The British and American governments are sitting on reports that reveal the extent of the involvement of former governments in these crimes. If William Hague is serious about pursuing a policy of ethical counter-terrorism, as he says he is, then the first thing the British government needs to do is to release the interim report of the Gibson Inquiry immediately.”
And Reuters adds:
Emmerson, an international lawyer from Britain, has served since August 2011 in the independent post set up by the U.N. Human Rights Council in 2005 to probe human rights violations committed during counter-terrorism operations worldwide.
The “war on terror” waged by Bush after al Qaeda attacks on the United States on September 11, 2001 led to “gross or systematic” violations involving secret prisons for Islamic militant suspects, clandestine transfers and torture, Emmerson said.
Under Obama, Attorney General Eric Holder said that the Department of Justice would not prosecute any official who acted in good faith and within the scope of legal guidance given by its Office of Legal Counsel in the Bush era on interrogation.
But Emmerson said that using a “superior orders defense” and invoking secrecy on national security grounds was “perpetuating impunity for the public officials implicated in these crimes”.
Tags: bradley manning, commander-in-chief, constitution, Criminal Justice, denise lind, jacob chambderlain, kevin gosztola, military trial, roger hollander, rule of law, speedy trial, torture, wikileaks
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80,000 American citizens are now held in solitary confinement for years, decades and lifetimes. The depravity of this society is unparalleled in human history. Manning is a prime example of how this vicious and sick society deals with people. This could be any one of us. All the while, they rubberstamp their criminality with court rulings like this one. Truly disgraceful. From www salem-news dot com:
His cell is approximately six feet wide and twelve feet in length. The cell has a bed, a drinking fountain, and a toilet. The guards at the confinement facility are professional. At no time have they tried to bully, harass, or embarrass PFC Manning. Given the nature of their job, however, they do not engage in conversation with PFC Manning.
At 5:00 a.m. he is woken up. Under the rules for the confinement facility, he is not allowed to sleep at anytime between 5:00 a.m. and 8:00 p.m. If he attempts to sleep during those hours, he will be made to sit up or stand by the guards.
He cannot see otherinmates from his cell. He can occasionally hear other inmates talk. Currently, there are no other inmates near his cell.
He is allowed to receive letters from those on his approved list and from his legal counsel. If he receives a letter from someone not on his approved list, he must sign a rejection form. The letter is then either returned to the sender or destroyed.
Due to being held on Prevention of Injury (POI) watch: PFC Manning is held in his cell for approximately 23 hours a day.
The guards are
required to check on PFC Manning every five minutes by asking him if he is okay. PFC Manning is required to respond in some affirmative manner.
At night, if the guards cannot see PFC Manning clearly, because he has a blanket over his head or is curled up towards the wall, they will wake him in order to ensure he is okay.
He receives each of his meals in his cell.
He is not allowed to have a pillow or sheets.
He is not allowed to have any personal items in his cell.
He is only allowed to have one book or one magazine at any given time to read in his cell.
The book or magazine is taken away from him at the end of the day before he goes to sleep.
He is prevented from exercising in his cell. If he attempts to do push- ups, sit-ups, or any other form of exercise he will be forced to stop.
He does receive one hour of “exercise” outside of his cell daily. He is taken to an empty room and only allowed to walk. PFC Manning normally just walks figure eights in theroom for the entire hour. If he indicates that he no longer feels like walking, he is immediately returned to his cell.
When PFC Manning goes to sleep, he is required to strip down to his boxer shorts and surrender his clothing to the guards. His clothing is returned to him the next morning.
In March 2011, they began stripping Manning naked, depriving him of his glasses as well.
BY ANY STANDARD THIS IS TORTURE; VENGEFUL PUNISHMENT AUTHORIZED BY PRESIDENT OBAMA HIMSELF.
WE USED TO SAY JOKINGLY THAT “MILITARY JUSTICE” IS AN OXYMORON; TODAY WE CAN SAY WITH REASON THAT “AMERICAN JUSTICE” IS AN OXYMORON.
Manning’s Right to a Speedy Trial Not Violated After 1,000 Days, Judge Rules
Pre-trial hearings move to a full court martial trial in June
Bradley Manning has not had his rights violated while waiting in a cell for almost three years before being granted a trial, judge Colonel Denise Lind ruled in a pre-trial hearing Tuesday.
Bradley Manning. (Reuters / Jose Luis Magaua)
Manning’s lawyer, David Coombs, had argued that the prosecution was guilty of “extreme foot-dragging” and “shameful” lack of diligence, which violated Manning’s right to a speedy trial—in a final bid that could have had the charges against Manning dismissed.
A soldier in the military has had his or her speedy trial rights violated when it takes over 120 days before an arraignment, Kevin Gosztola reports at FireDogLake, which is the case for Manning. However, Lind ruled in favor of the prosecution who said some of those days didn’t actually count in the speedy trial rule, due to “excludable delays” initiated by the prosecution.
The pre-trial hearings will now be certain to move to a full court martial trial in June.
Saturday marked the 1,000th day Manning has been in military custody without trial, and protesters gathered in 70 locations around the world in solidarity with Manning.
The Guardian adds more detail:
The judge, Colonel Denise Lind, spent two hours reading out her judgment to a pre-trial hearing in Fort Meade, Maryland. She went through the procedures in preparing for trial in minute detail, concluding that the exceptional length of the case was almost entirely justified as a result of its uniquely complex and sensitive nature. [...]
Under the Rules of Court Martial 707, any member of the military who is prosecuted must be brought to trial – as measured by the date of his or her arraignment – within a “speedy trial clock” of 120 days of being detained. But there are grounds for excusable delays that set back the clock that include the need for counsel to prepare for trial in a complex case, an inquiry into the mental condition of the accused, and the time taken to obtain security clearance for classified information.
In Manning’s case, the defense and prosecution agreed that there had been 84 days of diligent work between the soldier’s arrest and his arraignment on 23 February 2012. But the two sides were in dispute over 330 days.
Kevin Gosztola is live blogging from the courtroom here.
Obama Inherits and Normalizes the Arrogance and Impunity of Nixon, Reagan and Both Bushes February 26, 2013Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Democracy, War.
Tags: bruce a. dixon, constitution, democracy, drones, george h.w. bush, George W. Bush, history, kill list, nixon, presidents, reagan, roger hollander, rule of law, terror tuesday, war president
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When Republican presidents Nixon, Reagan and Bush waged secret wars based on mountains of lies and deceit, they were nearly impeached, but in each case Democrats in control of Congress could not pull the trigger. As a result, the Obama White House basks in a presidential culture of murderous arrogance and lawless impunity.
A Black Agenda Radio commentary by Bruce A. Dixon
Back in the early seventies, when Richard Nixon secretly bombed Laos and Cambodia, two countries the US was not at war with, and concealed it from Congress and the public, the crime was serious enough to be the fourth article of impeachment drawn up against him. A dozen years later, when Ronald Reagan defied Congress to wage a bloody contra war in Central America funded by running drugs into the US from Central America and selling arms to Iran, Reagan only avoided impeachment by pretending he just couldn’t remember much of it any more and letting his henchmen take the fall. George W. Bush too was widely reviled as a murderous fraud for his lies about Iraqi weapons of mass destruction and more, with millions of Americans and millions more around the world protesting his invasion of Iraq before it even began.
But in the end, none of these Republican warmongers were impeached while in office or indicted afterward because Democrats, in control of Congress every time, could never bring themselves to pull the trigger. So Tricky Dick Nixon stepped down. Reagan doddered off to the ranch, and Dubya’s at home right now watching American Idol. Barack Hussein Obama may be a different color and from a different party but he inherits their arrogance, their immunity, their impunity.
This White House openly brags about its “Terror Tuesday” meetings in which US special forces and drones have been dispatched to and from dozens of undisclosed countries to kidnap, torture or murder thousands of people, in the case of drone strikes mostly innocents, to the cheers and jokes of cruise missile liberals like Ed Schulz and Bill Maher, who calls Obama the “black ninja president.” The potent symbol of a black face in that high place has normalized the conduct of lawless aggressive war and secretive state murder among parts of the population which had no trouble calling a crime a crime when committed by a white Republican. In that sense, the First Black President is a little bit unlike, but mostly very much like his nefarious predecessors.
It’s worth noting that in the debates between Mitt Romney and Barack Obama, kill-at-will drone wars, the militarization of Africa, Wall Street’s immunity from prosecution, and the push to privatize and charterize public education were points upon which both candidates were in complete agreement. But if Mitt Romney were president today wouldn’t many more of us be in the street about these things? Black apologists, as Davey D notes, try to shut criticism of this president down in the misguided name of black unity, and some white activists stay home because they don’t want to be seen as racist whites hating on the black president.
A Facebook friend in Atlanta remarked last week that whenever George Bush was rumored coming to town, his inbox would be full of emergency mobilization notices. But with the current War President about to visit, he said, it looked like his only correspondent might be the Atlanta Journal-Constitution.
It’s going to be a long, long four more years.
For Black Agenda Radio, I‘m Bruce Dixon. Find us on the web at www.blackagendareport.com.
Bruce A. Dixon is managing editor at Black Agenda Report, and a member of the state committee of the Georgia Green Party. Contact him via this site’s contact page, or at bruce.dixon(at)blackagendareport.com.
John Brennan vs. a Sixteen-Year-Old Boy January 15, 2013Posted by rogerhollander in Pakistan, War, War on Terror.
Tags: cia director, collateral damage, drone casualties, drone missile, drone strikes, hellfire missile, International law, john brennan, kill list, medea benjamin, obama kill list, pakistan, roger hollander, rule of law, tariq aziz, yemen
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In October 2011, 16-year-old Tariq Aziz attended a gathering in Islamabad where he was taught how to use a video camera so he could document the drones that were constantly circling over his Pakistani village, terrorizing and killing his family and neighbors. Two days later, when Aziz was driving with his 12-year-old cousin to a village near his home in Waziristan to pick up his aunt, his car was struck by a Hellfire missile. With the push of a button by a pilot at a US base thousands of miles away, both boys were instantly vaporized—only a few chunks of flesh remained.Tariq Aziz (circled) at the Grand Jirga in Islamabad just days before he was killed by a US drone hellfire missile.
Afterwards, the US government refused to acknowledge the boys’ deaths or explain why they were targeted. Why should they? This is a covert program where no one is held accountable for their actions.
The main architect of this drone policy that has killed hundreds, if not thousands, of innocents, including 176 children in Pakistan alone, is President Obama’s counterterrorism chief and his pick for the next director of the CIA: John Brennan.
On my recent trip to Pakistan, I met with people whose loved ones had been blown to bits by drone attacks, people who have been maimed for life, young victims with no hope for the future and aching for revenge. For all of them, there has been no apology, no compensation, not even an acknowledgement of their losses. Nothing.
That’s why when John Brennan spoke at the Woodrow Wilson International Center in Washington DC last April and described our policies as ethical, wise and in compliance with international law, I felt compelled to stand up and speak out on behalf of Tariq Aziz and so many others. As they dragged me out of the room, my parting words were: “I love the rule of law and I love my country. You are making us less safe by killing so many innocent people. Shame on you, John Brennan.”
Rather than expressing remorse for any civilian deaths, John Brennan made the extraordinary statement in 2011 that during the preceding year, there hadn’t been a single collateral death “because of the exceptional proficiency, precision of the capabilities we’ve been able to develop.” Brennan later adjusted his statement somewhat, saying, “Fortunately, for more than a year, due to our discretion and precision, the U.S. government has not found credible evidence of collateral deaths resulting from U.S. counterterrorism operations outside of Afghanistan or Iraq.” We later learned why Brennan’s count was so low: the administration had come up with a semantic solution of simply counting all military-age males in a strike zone as combatants.
The UK-based Bureau of Investigative Journalism has documented over 350 drones strikes in Pakistan that have killed 2,600-3,400 people since 2004. Drone strikes in Yemen have been on the rise, with at least 42 strikes carried out in 2012, including one just hours after President Obama’s reelection. The first strike in 2013 took place just four days into the new year.
A May 29, 2011 New York Times exposé showed John Brennan as President Obama’s top advisor in formulating a “kill list” for drone strikes. The people Brennan recommends for the hit list are given no chance to surrender, and certainly no chance to be tried in a court of law. The kind of intelligence Brennan uses to put people on drone hit lists is the same kind of intelligence that put people in Guantanamo. Remember how the American public was assured that the prisoners locked up in Guantanamo were the “worst of the worst,” only to find out that hundreds were innocent people who had been sold to the US military by bounty hunters?
In addition to kill lists, Brennan pushed for the CIA to have the authority to kill with even greater ease using “signature strikes,” also known as “crowd killing,” which are strikes based solely on suspicious behavior.
When President Obama announced his nomination of John Brennan, he talked about Brennan’s integrity and commitment to the values that define us as Americans. He said Brennan has worked to “embed our efforts in a strong legal framework” and that he “understands we are a nation of laws.”
A nation of laws? Really? Going around the world killing anyone we want, whenever we want, based on secret information? Just think of the precedent John Brennan is setting for a world of lawlessness and chaos, now that 76 countries have drones—mostly surveillance drones but many in the process of weaponizing them. Why shouldn’t China declare an ethnic Uighur activist living in New York City as an “enemy combatant” and send a missile into Manhattan, or Russia launch a drone attack against a Chechen living in London? Or why shouldn’t a relative of a drone victim retaliate against us here at home? It’s not so far-fetched. In 2011, 26-year-old Rezwan Ferdaus, a Massachusetts-based graduate with a degree in physics, was recently sentenced to 17 years in prison for plotting to attack the Pentagon and US Capitol with small drones filled with explosives.
In his search for a new CIA chief, Obama said he looked at who is going to do the best job in securing America. Yet the blowback from Brennan’s drone attacks is creating enemies far faster than we can kill them. Three out of four Pakistanis now see the US as their enemy—that’s about 133 million people, which certainly can’t be good for US security. When Pakistani Foreign Minister Hina Rabbani Khar was asked the source of US enmity, she had a one word answer: drones.
In Yemen, escalating U.S. drones strikes are radicalizing the local population and stirring increasing sympathy for al-Qaeda-linked militants. Since the January 4, 2013 attack in Yemen, militants in the tribal areas have gained more recruits and supporters in their war against the Yemeni government and its key backer, the United States. According to Abduh Rahman Berman, executive director of a Yemeni National Organization for Defending Rights and Freedoms, the drone war is failing. “If the Americans kill 10, al-Qaeda will recruit 100,” he said.
Around the world, the drone program constructed by John Brennan has become a provocative symbol of American hubris, showing contempt for national sovereignty and innocent lives.
If Obama thinks John Brennan is a good choice to head the CIA and secure America, he should contemplate the tragic deaths of victims like 16-year-old Tariq Aziz, and think again.
Medea Benjamin (firstname.lastname@example.org), cofounder of Global Exchange and CODEPINK: Women for Peace, is the author of Drone Warfare: Killing by Remote Control. Her previous books include Don’t Be Afraid Gringo: A Honduran Woman Speaks from the Heart., and (with Jodie Evans) Stop the Next War Now (Inner Ocean Action Guide).
John Brennan’s new power May 22, 2012Posted by rogerhollander in Barack Obama, Criminal Justice, Human Rights, War on Terror.
Tags: civil liberties, counterterrorism, drone missile, due process, glenn greenwald, human rights, john brennan, kill list, presidential assassination, roger hollander, rule of law, war on terror
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Roger’s note: Picture Mr. Brennan enters the Oval Office and informs the President that it is time to sit down and decide who they are going to kill today. This is how a president spends his time? Surreal.
Tuesday, May 22, 2012 07:34 AM EST, www.salon.com
President Obama’s counter-terrorism chief has “seized the lead” in secretly determining who will die by US drone
In this Sept. 7, 2011 file photo, White House counterterrorism adviser John Brennan speaks in Washington. )Credit: AP Photo/Susan Walsh, File)
In November, 2008, media reports strongly suggested that President Obama intended to name John Brennan as CIA Director. But controversy over Brennan’s recent history — he was a Bush-era CIA official who expressly advocated “enhanced interrogation techniques” and rendition — forced him to “withdraw” from consideration, as he publicly issued a letter citing “strong criticism in some quarters” of his CIA advocacy.
Undeterred by any of that unpleasantness, President Obama instead named Brennan to be his chief counter-Terrorism adviser, a position with arguably more influence that he would have had as CIA chief. Since then, Brennan has been caught peddling serious falsehoods in highly consequential cases, including falsely telling the world that Osama bin Laden “engaged in a firefight” with U.S. forces entering his house and “used his wife as a human shield,” and then outright lying when he claimed about the prior year of drone attacks in Pakistan: “there hasn’t been a single collateral death.” Given his history, it is unsurprising that Brennan has been at the heart of many of the administration’s most radical acts, including claiming the power to target American citizens for assassination-by-CIA without due process and the more general policy of secretly targeting people for death by drone.
Now, Brennan’s power has increased even more: he’s on his way to becoming the sole arbiter of life and death, the unchecked judge, jury and executioner of whomever he wants dead (of course, when Associated Press in this report uses the words “Terrorist” or “al-Qaida operative,” what they actually mean is: a person accused by the U.S. Government, with no due process, of involvement in Terrorism):
White House counterterror chief John Brennan has seized the lead in choosing which terrorists will be targeted for drone attacks or raids, establishing a new procedure for both military and CIA targets.
The effort concentrates power over the use of lethal U.S. force outside war zones within one small team at the White House.
The process, which is about a month old, means Brennan’s staff consults with the State Department and other agencies as to who should go on the target list, making the Pentagon’s role less relevant, according to two current and three former U.S. officials aware of the evolution in how the government goes after terrorists. . . .
Brennan’s effort gives him greater input earlier in the process, before making final recommendation to President Barack Obama. Officials outside the White House expressed concern that drawing more of the decision-making process to Brennan’s office could turn it into a pseudo military headquarters, entrusting the fate of al-Qaida targets to a small number of senior officials. . . .
Some of the officials carrying out the policy are equally leery of “how easy it has become to kill someone,” one said. The U.S. is targeting al-Qaida operatives for reasons such as being heard in an intercepted conversation plotting to attack a U.S. ambassador overseas, the official said. . . .
Human rights and civil liberties groups have argued for the White House to make public the legal process by which names end up on the targeting lists.
“We continue to believe, based on the information available, that the (drone) program itself is not just unlawful but dangerous,” said Hina Shamsi, director of the ACLU National Security Project. “It is dangerous to characterize the entire planet as a battlefield.”
Shrinking the pool of people deciding who goes on the capture/kill list means fewer people to hold accountable, said Mieke Eoyang from Third Way, a centrist Democratic think tank.
“As a general principle, if people think someone is checking their work, they are more careful,” Eoyang said. “Small groups can fall victim to group-think.”
Needless to say, all of this takes place in total secrecy, with no legal framework and no oversight of any kind. Indeed, even after they had Brennan publicly defend the CIA drone program, the Obama administration continue to insist in federal court that the program is too secretive even to confirm its existence. It’s just a tiny cadre of National Security State officials who decide, in the dark, whom they want dead, and then — once the President signs off — it is done. This is the Change with which the 2009 Nobel Peace Prize laureate has gifted us: ”some of the officials carrying out the policy are equally leery of ‘how easy it has become to kill someone.’”
Reuters previously described the secret process used to determine which human beings, including American citizens, would be targeted for due-process-free death-by-CIA: they “are placed on a kill or capture list by a secretive panel of senior government officials” with “no public record” nor “any law establishing its existence or setting out the rules” — an actual death panel, though one invented by the White House rather than established by law. And now John Brennan has even more control over the process, and fewer checks, when issuing these death sentence decrees.
Remember in the Bush era when little things like the Patriot Act and warrantless eavesdropping and military commissions were the Radical and Lawless Assaults Trampling on Our Constitution and Our Values? Now, all those things are completely normalized — controversies over those policies are like quaint and obsolete relics of a more innocent era — and we now have things like unelected Death Sentence Czars instead.
* * * * *
UPDATE: I was on Al Jazeera yesterday debating the potential de-listing of the MeK as a Terrorist group, and that can be seen here (because of technical issues, my participation began at 19:40). I was also interviewed yesterday by Anti War Radio about Obama’s detention policies and the recent court case invalidating the NDAA’s detention powers, and that can be heard here.
Obama Justice and medical marijuana April 26, 2012Posted by rogerhollander in Barack Obama, Criminal Justice, Drugs.
Tags: Criminal Justice, doj, drugs, glenn greeenwald, justice department, medical marijuana, president obama, roger hollander, rule of law, war on drugs
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Cannabis plants grow at Northwest Patient Resource Center in Seattle, Wash. (Credit: Reuters/Cliff DesPeaux)
The President’s justification for his crackdown on medical marijuana dispensaries has to be heard to be believed
President Obama gave an interview to Rolling Stone‘s Jann Wenner this week and was asked about his administration’s aggressive crackdown on medical marijuana dispensaries, including ones located in states where medical marijuana is legal and which are licensed by the state; this policy is directly contrary to Obama’s campaign pledge to not “use Justice Department resources to try and circumvent state laws about medical marijuana.” Here’s part of the President’s answer:
I never made a commitment that somehow we were going to give carte blanche to large-scale producers and operators of marijuana – and the reason is, because it’s against federal law. I can’t nullify congressional law. I can’t ask the Justice Department to say, “Ignore completely a federal law that’s on the books” . . . .
The only tension that’s come up – and this gets hyped up a lot – is a murky area where you have large-scale, commercial operations that may supply medical marijuana users, but in some cases may also be supplying recreational users. In that situation, we put the Justice Department in a very difficult place if we’re telling them, “This is supposed to be against the law, but we want you to turn the other way.” That’s not something we’re going to do.
Aside from the fact that Obama’s claim about the law is outright false — as Jon Walker conclusively documents, the law vests the Executive Branch with precisely the discretion he falsely claims he does not have to decide how drugs are classified — it’s just extraordinary that Obama is affirming the “principle” that he can’t have the DOJ “turn the othe way” in the face of lawbreaking. As an emailer just put it to me: “Interesting how this principle holds for prosecuting [medical] marijuana producers in the war on drugs, but not for prosecuting US officials in the war on terror. Or telecommunications companies for illegal spying. Or Wall Street banks for mortgage fraud.”
That’s about as vivid an expression of the President’s agenda, and his sense of justice, and the state of the Rule of Law in America, as one can imagine. The same person who directed the DOJ to shield torturers and illegal government eavesdroppers from criminal investigation, and who voted to retroactively immunize the nation’s largest telecom giants when they got caught enabling criminal spying on Americans, and whose DOJ has failed to indict a single Wall Street executive in connection with the 2008 financial crisis or mortgage fraud scandal, suddenly discovers the imperatives of The Rule of Law when it comes to those, in accordance with state law, providing medical marijuana to sick people with a prescription.
If the Supreme Court Goes Rogue April 1, 2012Posted by rogerhollander in Constitution, Health.
Tags: affordable care, commerce clause, constitution, health care, health care reform, heathcare, heathcare reform, john roberts, obamacare, republicans, roger hollander, rule of law, sam parry, supreme court
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What happens to a Republic under a written Constitution if a majority of the Supreme Court, which is empowered to interpret that Constitution, goes rogue? What if the court’s majority simply ignores the wording of the founding document and makes up the law to serve some partisan end? Does that, in effect, turn the country into a lawless state where raw power can muscle aside the democratic process?
Chief Justice John Roberts
Something very much like that could be happening if the Supreme Court’s five Republicans continue on their apparent path to strike down the individual mandate at the heart of the Affordable Care Act. In doing so, they will be rewriting the Constitution’s key Commerce Clause and thus reshaping America’s system of government by fiat, rather than by the prescribed method of making such changes through the amendment process.
And the word “regulate” means today what it meant then, as was noted in a Nov. 8, 2011, ruling written by Judge Laurence Silberman, a senior judge on the U.S. Court of Appeals for the District of Columbia Circuit, a conservative appointee of President Ronald Reagan.The plain text of the Commerce Clause – Article 1, Section 8, Clause 3 – is so straightforward that a middle-school child should be able to understand it. Here it is: “Congress shall have Power… to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
In upholding the individual mandate as constitutional, Silberman wrote: “At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’ In other words, to ‘regulate’ can mean to require action.”
So, for the individual mandate to clear the Commerce Clause hurdle it must be a regulation of commerce among the states. Everyone agrees that health care and health insurance are interstate markets. Check. Everyone also agrees that health care and health insurance are commerce. Check. There’s also no dispute that the individual mandate is a form of regulation. Check.
Judge Silberman went through the same check list and concluded that there was “no textual support” in the Constitution for striking down the individual mandate because the word “regulate” has always included the power to compel people to act.
But the law’s opponents insist that the individual mandate is a unique and improper form of regulation because it forces an American to do something that the person might not want to do it, i.e. go into the private market and buy health insurance.
Yet, in other enumerated powers, this idea of Congress having the power to compel people to act is widely accepted. Take, for example, the draft. While there is not currently a draft, there has been at many points in U.S. history and even now every male citizen, when he turns 18, is required to register for selective service. And, should the draft come back and should you get drafted, you would be legally compelled to serve.
If compelling individuals to risk their lives in war is an accepted use of congressional authority, it is hard to see the logic in striking down the power of Congress to compel individuals to get health insurance.
Washington and Madison
And, despite what the Affordable Care Act’s critics have said repeatedly, this is not the first time the federal government has ordered Americans to buy a private product.
Indeed, just four years after the Constitution’s ratification, the second U.S. Congress passed the Militia Acts of 1792, which were signed into law by President George Washington. The militia law ordered white men of fighting age to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets and a knapsack so they could participate in militias.
If one wants to gauge whether a mandate to buy a private product violates the original intent of the Framers, one probably can’t do better than applying the thinking of George Washington, who presided at the Constitutional Convention in 1787, and James Madison, the Constitution’s architect who served in the Second Congress and argued for the militia law. [For more, see Consortiumnews.com’s “Madison: Father of the Commerce Clause.”]
So, it would seem to be a rather clear-cut constitutional case. Whether one likes the Affordable Care Act or not, it appears to fall well within the Constitution and historical precedents. By the way, that’s also the view of Ronald Reagan’s Solicitor General Charles Fried who said this in a March 28 interview:
“Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.”
However, if Chief Justice John Roberts and the Court’s four other Republicans go in the direction they signaled during oral arguments and strike down the individual mandate, they will not merely be making minor clarifications to the noun “commerce” and the adjective “interstate” — as the Court has done previously — but they will be revising the definition of the verb “regulate” and thus substantially editing the Constitution.
When it comes to editing the Constitution, there is a detailed process spelled out for how you do that. It’s in Article 5 of the Constitution and it’s called the amendment process – something in which the Judicial Branch plays absolutely no role. The process for revising the founding document requires votes by two-thirds of both the House and the Senate and the approval of three-quarters of the states.
Besides representing an affront to the nation’s constitutional system, an end-run by a narrow majority of the Supreme Court taking upon itself to rewrite an important section of the Constitution would drastically alter the balance among the three branches of government.
Such an action would fly in the face of the longstanding principle in constitutional cases that the Supreme Court should give deference to legislation passed by the government’s Legislative Branch and signed into law by the President as chief of the Executive Branch. Under that tradition, the Judicial Branch starts with the assumption that the other two branches have acted constitutionally.
The burden of proof, therefore, should not be on the government to prove that the Constitution permits a law – but rather on the plaintiffs to demonstrate how a law is unconstitutional.
Yet, during oral arguments this week, Republican justices pressed the government to prove that the Affordable Care Act was constitutional and even demanded that Solicitor General Donald B. Verrilli Jr. put forward a limiting principle to the Commerce Clause – to speculate about what couldn’t be done under that power.
Justice Anthony Kennedy several times raised the point that the individual mandate changes the relationship between citizens and the federal government in, as he put it, “fundamental ways” and thus the government needed to offer a powerful justification. In his questions, however, it was not entirely clear why Kennedy thought this, given the fact that Congress has previously enacted many mandates, including requirements to contribute money to Social Security and Medicare.
In the March 28 interview, former Solicitor General Fried took issue with Kennedy’s question about this “fundamental” change, calling the line “an appalling piece of phony rhetoric” and dismissing it as “Kennedy’s Tea Party-like argument.”
Fried noted that Social Security in the 1930s and Medicare in the 1960s indeed were major changes in the relationship between the government and the citizenry, “but this? This is simply a rounding out in a particular area of a relation between the citizen and the government that’s been around for 70 years.”
On policy substance as well as on constitutional principle, Fried was baffled by the Republican justices’ opposition to the law, saying: “I’ve never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them. I don’t get it.”
A Noble Rationale
But Kennedy seemed to be fishing for some noble-sounding rationale for striking down the individual mandate. He was backed up by Justice Antonin Scalia who proffered the peculiar argument that if Congress could mandate the purchase of health care, why couldn’t it require people to buy broccoli – as if any outlandish hypothetical regarding congressional use of the Commerce Clause disqualifies all uses of the Commerce Clause.
This line of reasoning by the Republican justices also ignored the point that the Court’s role is not to conjure up reasons to strike down a law, but rather to make a straightforward assessment of whether the individual mandate represents a regulation of interstate commerce and is thus constitutional.
In searching for a rationale to strike down the law, the Court’s Republicans also ignored the true limiting principle of any act of Congress – the ballot box. If any congressional majority were crazy enough to mandate the purchase of broccoli, the voters could throw that bunch out and vote in representatives who could then reverse the law.
In the case of the Affordable Care Act, Democrats won Election 2008, in part, because they promised the voters to tackle the crisis in U.S. health care. If the voters don’t like what was done, they can vote the Democrats out of office in November. The pendulum of democracy can always undo or modify any law through legislative action.
However, what the Republican majority on the Supreme Court seems to be angling toward is a radical change in the longstanding principles behind the Constitution’s checks and balances. The five justices would bestow upon themselves the power to not only undo legislation, which has been lawfully enacted by Congress and signed by the President, but to rewrite the founding document itself.
Sam Parry is co-author of Neck Deep: The Disastrous Presidency of George W. Bush. He has worked in the environmental movement, including as a grassroots organizer, communications associate, and on the Sierra Club’s and Amnesty International’s joint Human Rights and the Environment campaign. He currently works for Environmental Defense Fund.
Obama takes Bush’s secrecy games one step further March 26, 2012Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Democracy.
Tags: aclu, cia drones, drone missile, eric holder, foia, glenn greenwald, national security, Obama, roger hollander, rule of law, state secret
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REPORTING FROM ISLAMABAD, PAKISTAN — A U.S. drone missile strike killed four suspected militants in northwest Pakistan on Wednesday, ending a six-week hiatus in such attacks, imposed by Washington following American airstrikes late last year that killed 24 Pakistani soldiers and severely marred relations between the two nations.
After repeatedly boasting about it in public, Obama officials tell courts it cannot confirm the CIA drone program
The ACLU is suing the Obama administration under the Freedom of Information Act (FOIA), seeking to force disclosure of the guidelines used by Obama officials to select which human beings (both U.S. citizens and foreign nationals) will have their lives ended by the CIA’s drone attacks (“In particular,” the group explains, the FOIA request “seeks to find out when, where and against whom drone strikes can be authorized, and how the United States ensures compliance with international laws relating to extrajudicial killing”). The Obama administration has not only refused to provide any of that information, but worse, the CIA is insisting to federal courts that it cannot even confirm or deny the existence of a drone program at all without seriously damaging national security; from the CIA’s brief in response to the ACLU lawsuit:
. . .
What makes this so appalling is not merely that the Obama administration demands the right to kill whomever it wants without having to account to anyone for its actions, choices or even claimed legal authorities, though that’s obviously bad enough (as I wrote when the ACLU lawsuit was commenced: “from a certain perspective, there’s really only one point worth making about all of this: if you think about it, it is warped beyond belief that the ACLU has to sue the U.S. Government in order to force it to disclose its claimed legal and factual bases for assassinating U.S. citizens without charges, trial or due process of any kind”). What makes it so much worse is how blatantly, insultingly false is its claim that it cannot confirm or deny the CIA drone program without damaging national security.
Numerous Obama officials — including the President himself and the CIA Director — have repeatedly boasted in public about this very program. Obama recently hailed the CIA drone program by claiming that “we are very careful in terms of how it’s been applied,” and added that it is “a targeted, focused effort at people who are on a list of active terrorists, who are trying to go in and harm Americans, hit American facilities, American bases and so on.” Obama has told playful jokes about the same drone program. Former CIA Director and current Defense Secretary Leon Panetta also likes to tell cute little jokes about CIA Predator drones, and then proclaimed in December that the drone program has “been very effective at undermining al Qaeda and their ability to plan those kinds of attacks.” Just two weeks ago, Attorney General Eric Holder gave a speech purporting to legally justify these same drone attacks.
So Obama officials are eager to publicly tout the supposed benefits of the CIA’s drone programs in order to generate political gain for the President: to make him look like some sort of Tough, Brave Warrior single-handedly vanquishing Al Qaeda. The President himself boasts about how tightly controlled, precise and effective the CIA drones are. Everyone in the world knows the CIA has a drone program. It is openly discussed everywhere, certainly including the multiple Muslim countries where the drones routinely create piles of corpses, and by top U.S. Government officials themselves.
But then when it comes time to test the accuracy of their public claims by requesting the most basic information about what is done and how execution targets are selected, and when it comes time to ask courts to adjudicate its legality, then suddenly National Security imperatives prevent the government even from confirming or denying the existence of the program: the very same program they’ve been publicly boasting and joking about. As the ACLU’s Jameel Jaffer put it after Obama publicly defended the program: “At this point, the only consequence of pretending that it’s a secret program is that the courts don’t play a role in overseeing it” – that, and ensuring that any facts that contradict these public claims remain concealed.
This is why the U.S. Government’s fixation on secrecy — worse than ever under the Obama administration, as evidenced by its unprecedented war on whistleblowers — is so pernicious. It not only enables government officials to operate in the dark, which inevitably ensures vast (though undiscovered) abuses of power. Worse, it enables the government to aggressively propagandize the citizenry without challenge: Obama officials are free to make all sorts of claims about how great and targeted the drone program is and how it Keeps Us Safe™, while simultaneously suppressing any evidence or information that would test those claims and/or contradict them.
Worse still, it literally removes our highest political officials from the rule of law. The sole purpose of these vast claims of secrecy around the drone program — the absurd notion that they cannot even confirm or deny its existence without harming National Security — is to block courts from reviewing the legality of what they’re doing, which is another way of saying: they have removed themselves from the rule of law. Even Bush DOJ lawyer Jack Goldsmith, a vociferous advocate of executive power and secrecy powers, understands how abusive this is:
First, it is wrong . . . for the government to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications. It is wrong because it is illegal. It is wrong because it damages (though perhaps not destroys) the diplomatic and related goals of covertness. And it is wrong because the Executive branch seems to be trying to have its cake (not talking about the program openly in order to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking promiscuously to get credit for the operation and to portray it as lawful).
Indeed, one of the worst abuses of the lawless Bush presidency was that Bush officials repeatedly invoked secrecy powers (the State Secret privilege) to shield their most controversial and lawless programs from judicial review: warrantless eavesdropping, rendition, and torture. One of the earliest alarms about what the Obama presidency would be was when the Obama DOJ told courts early in 2009 that it would continue to assert those same radical secrecy claims: thus telling courts that the very programs which candidate Obama long denounced as illegal were now such vital State Secrets that courts must not risk their disclosure by adjudicating their legality. Beyond Obama’s decree that the DOJ must not investigate Bush-era crimes, that was the instrument used by Obama to shield Bush’s criminal policies from judicial challenge: through Kafkaesque claims of secrecy whereby programs that everyone in the world knows exist were Too Secret even to let courts examine. In sum, there is only one place in the entire world where these policies of warrantless eavesdropping, rendition, torture, and CIA drones cannot be discussed: in American courts, when it’s time to review their legality and/or allow its victims to vindicate their legal rights.
Now, in this ACLU/FOIA case, the Obama administration is taking these warped secrecy games one step further. They boast publicly about the programs to lavish themselves with praise, only to turn around once they’re sued in court and insist that the programs are too secret even to acknowledge. So extreme is the fixation on secrecy from the Most Transparent Administration Ever™ that they are routinely reduced to this type of self-parody; behold how they are insisting in response to a separate FOIA lawsuit from The New York Times that they cannot even confirm or deny the existence of the OLC memo which authorized the assassination of Anwar Awlaki — even though the NYT reported on its contents. More amazingly still, the Obama administration continues to insist that they cannot confirm or deny the memo’s existence even after Eric Holder talks about the memo in a Senate hearing.
This would be laughable if it were not so destructive. It results in the government’s most consequential actions being completely shielded not only from public scrutiny, but also from the rule of law. It enables the most powerful political officials to inculcate the public with claims about their actions while preventing any form of checks and suppressing any contrary information. It literally means that the Obama administration is able to conduct multiple secret wars around the world, ones conducted by drone attacks, the very existence of which they refuse to acknowledge. And it is yet another means of how the Obama presidency is cementing the worst abuses of the Bush presidency: the very same ones he so inspirationally vowed to reverse.
Glenn Greenwald (email: GGreenwald@salon.com) is a former Constitutional and civil rights litigator and is the author of two New York Times Bestselling books on the Bush administration’s executive power and foreign policy abuses. His just-released book, With Liberty and Justice for Some, is an indictment of America’s two-tiered system of justice, which vests political and financial elites with immunity even for egregious crimes while subjecting ordinary Americans to the world’s largest and most merciless penal state. Greenwald was named by The Atlantic as one of the 25 most influential political commentators in the nation. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, and is the winner of the 2010 Online Journalism Association Award for his investigative work on the arrest and oppressive detention of Bradley Manning.
Tags: aclu, al-Qaeda, cia assassination, civil liberties, Criminal Justice, democratic party, due process, eric holder, glenn greenwald, judicial review, Obama, presidential power, roger hollander, rule of law, terrorists, war on terror, warrantless eavesdropping
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Roger’s note: declare “war” on something, war on terror, for example, and you then have the absolute right to kill the “enemy” no questions asked. Prior to the so-called war on terror, there had been acts of terrorism for centuries. They were always dealt with via intelligence gathering and other policing techniques, and alleged terrorists prosecuted through he judicial system (albeit with notable examples of abuse, e.g. Sacco and Vanzetti). This made sense. The ultimate purpose of the war on terror today is to militarize civilian authority. Declare war and you have every right to kill whomever you say is the enemy, be it a citizen or a foreigner. The world is a battlefield. By this logic, the president and the CIA should be able to execute anyone they deem active in the phony “war on drugs.” I am surprised that they haven’t … yet. When they declare war on left-wing political comedians, look out Jon Stewart and Stephen Colbert.
Tuesday, Mar 6, 2012 4:50 AM 20:09:43 EST, www.salon.com
A new speech by Eric Holder cements Obama’s legacy as the president who pioneered secretive, charge-less executions
Barack Obama and Eric Holder (Credit: Reuters)
In a speech at Northwestern University yesterday, Attorney General Eric Holder provided the most detailed explanation yet for why the Obama administration believes it has the authority to secretly target U.S. citizens for execution by the CIA without even charging them with a crime, notifying them of the accusations, or affording them an opportunity to respond, instead condemning them to death without a shred of transparency or judicial oversight. The administration continues to conceal the legal memorandum it obtained to justify these killings, and, as The New York Times‘ Charlie Savage noted, Holder’s “speech contained no footnotes or specific legal citations, and it fell far short of the level of detail contained in the Office of Legal Counsel memo.” But the crux of Holder’s argument as set forth in yesterday’s speech is this:
Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.
When Obama officials (like Bush officials before them) refer to someone “who is a senior operational leader of Al Qaeda or associated forces,” what they mean is this: someone the President has accused and then decreed in secret to be a Terrorist without ever proving it with evidence. The “process” used by the Obama administration to target Americans for execution-by-CIA is, as reported last October by Reuters, as follows:
American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions . . . There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council . . . Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.
As Leon Panetta recently confirmed, the President makes the ultimate decision as to whether the American will be killed: “[The] President of the United States obviously reviews these cases, reviews the legal justification, and in the end says, go or no go.”
So that is the “process” which Eric Holder yesterday argued constitutes “due process” as required by the Fifth Amendment before the government can deprive of someone of their life: the President and his underlings are your accuser, your judge, your jury and your executioner all wrapped up in one, acting in total secrecy and without your even knowing that he’s accused you and sentenced you to death, and you have no opportunity even to know about, let alone confront and address, his accusations; is that not enough due process for you? At Esquire, Charles Pierce, writing about Holder’s speech, described this best: “a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo.”
* * * * *
I’ve obviously written about the Obama assassination program many times before but there are several points worth examining in light of Holder’s speech and the reaction to it:
(1) The willingness of Democrats to embrace and defend this power is especially reprehensible because of how completely, glaringly and obviously at odds it is with everything they loudly claimed to believe during the Bush years. Recall two of the most significant “scandals” of the Bush War on Terror: his asserted power merely to eavesdrop on and detain accused Terrorists without judicial review of any kind. Remember all that? Progressives endlessly accused Bush of Assaulting Our Values and “shredding the Constitution” simply because Bush officials wanted to listen in on and detain suspected Terrorists — not kill them, just eavesdrop on and detain them — without first going to a court and proving they did anything wrong. Yet here is a Democratic administration asserting not merely the right to surveil or detain citizens without charges or judicial review, but to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, with some righteous exceptions, the silence is deafening, or worse.
How can anyone who vocally decried Bush’s mere eavesdropping and detention powers without judicial review possibly justify Obama’s executions without judicial review? How can the former (far more mild powers) have been such an assault on Everything We Stand For while the latter is a tolerable and acceptable assertion of war powers? If Barack Obama has the right to order accused Terrorists executed by the CIA because We’re At War, then surely George Bush had the right to order accused Terrorists eavesdropped on and detained on the same ground.
That the same Party and political faction that endlessly shrieked about Bush’s eavesdropping and detention programs now tolerate Obama’s execution program is one of the most extreme and craven acts of dishonesty we’ve seen in quite some time. By stark contrast, right-wing leaders, pundits and bloggers are being commendably consistent: they cheered for Bush’s due-process-free eavesdropping and detention programs and, based on exactly the same reasoning, they now lavishly praise President Obama for extending that mentality to assassinations.
(2) It isn’t merely the Democratic Party generally and its hordes of adherents who have performed a complete reversal on these issues as of January 20, 2009. It’s also true of Barack Obama and Eric Holder themselves.
Throughout the Bush years, then-Sen. Obama often spoke out so very eloquently about the Vital Importance of Due Process even for accused Terrorists. As but one example, he stood up on the Senate floor and denounced Bush’s Guantanamo detentions on the ground that a “perfectly innocent individual could be held and could not rebut the Government’s case and has no way of proving his innocence.” He spoke of “the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.” He mocked the right-wing claim “that judicial inquiry is an antique, trivial and dispensable luxury.” He acknowledged that the Government will unavoidably sometimes make mistakes in accusing innocent people of being Terrorists, but then provided the obvious solution: “what is avoidable is refusing to ever allow our legal system to correct these mistakes.” How moving is all that? What a stirring tribute to the urgency of allowing accused Terrorists a day in court before punishing them.
Then we have Eric Holder, who in 2008 gave a speech to the American Constitution Society denouncing Bush’s executive power radicalism and calling for a “public reckoning.” He specifically addressed the right-wing claim that Presidents should be allowed to eavesdrop on accused Terrorists without judicial review in order to Keep Us Safe. In light of what the Attorney General said and justified yesterday, just marvel at what he said back then, a mere three years ago:
To those in the Executive branch who say “just trust us” when it comes to secret and warrantless surveillance of domestic communications I say remember your history. In my lifetime, federal government officials wiretapped, harassed and blackmailed Martin Luther King and other civil rights leader in the name of national security. One of America’s greatest heroes whom today we honor with a national holiday, countless streets, schools and soon a monument in his name, was treated like a criminal by those in our federal government possessed of too much discretion and a warped sense of patriotism. Watergate revealed similar abuses during the Nixon administration.
To recap Barack Obama’s view: it is a form of “terror” for someone to be detained “without even getting one chance to prove their innocence,” but it is good and noble for them to be executed under the same circumstances. To recap Eric Holder’s view: we must not accept when the Bush administration says “just trust us” when it comes to spying on the communications of accused Terrorists, but we must accept when the Obama administration says “just trust us” when it comes to targeting our fellow citizens for execution. As it turns out, it’s not 9/11/01 that Changed Everything. It’s 1/20/09.
(3) The ACLU said yesterday that Holder’s speech “is ultimately a defense of the government’s chillingly broad claimed authority to conduct targeted killings of civilians, including American citizens, far from any battlefield without judicial review or public scrutiny.” The ACLU then added:
Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact.
Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.
This is notable for three reasons. First, the ACLU isn’t merely saying this is a bad policy; they are instead pointing out the obvious: that there are “few things as dangerous” as having your own Government assert the right to target citizens for death with no judicial process, yet that’s exactly what the Obama administration is doing with little backlash. Second, the ACLU is challenging progressive defenders of the President to do what none will ever do: explain why they would trust not only Barack Obama, but also Sarah Palin, or Newt Gingrich, or Michele Bachmann, with the power to target U.S. citizens for assassination in secret and with no judicial oversight. Third, that the ACLU is condemning an Obama policy as “as dangerous to American liberty” as a policy can be — also known as: a supreme hallmark of tyranny — demonstrates the huge gulf that has arisen under the Obama presidency between the Democratic Party and the ACLU (a group universally praised by Democrats when a Republican President is in office), though this gulf has been obvious for quite some time.
(4) What’s so striking is how identical Obama officials and their defenders sound when compared to the right-wing legal theorists who justified Bush’s most controversial programs. Even the core justifying slogans are the same: we are at War; the Battlefield is everywhere; Presidents have the right to spy on, detain and kill combatants without court permission; the Executive Branch is the sole organ for war and no courts can interfere in the President’s decisions, etc. I spent years writing about and refuting those legal theories and they are identical to what we hear now. Just consider how similar the two factions sound to one another.
When it came to their War on Terror controversies, Bush officials constantly said back then exactly what Obama officials and defenders say now: we’re only using these powers against Terrorists — The Bad People — not against regular, normal, Good Americans; so if you’re not a Terrorist, you have nothing to worry about. Here’s White House spokesman Trent Duffy in December, 2005, defending Bush’s warrantless eavesdropping program:
This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches.
Similarly, when George Bush went before the cameras in December, 2005, to proudly admit and defend his warrantless spying program, he assured the nation that this was all justified because it was only aimed at “the international communications of people with known links to al Qaeda and related terrorist organizations.”
Find a defender of Obama’s assassination program and all you’ll hear is exactly the same thing: this is only being directed at The Terrorists like Awlaki, so we don’t need any court review or due process. Here was Holder yesterday: “it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks,” and assassination orders are only issued once “the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States.”
This is nothing more than an exercise of supremely circular reasoning and question-begging: whether someone is actually a Terrorist can be determined only when the evidence of their guilt is presented and they have an opportunity to respond, just as Holder and Obama said during the Bush years. Government assurances that they’re only targeting Terrorists — whether those assurances issue from Bush or Obama — should reassure nobody: this is always what those who abuse power claim, and it’s precisely why we don’t trust government officials to punish people based on unproven accusations. Here’s what Nixon’s Attorney General, John Mitchell, said in order to assuage growing fears of new government eavesdropping powers, as reported by this July 25, 1969 article from Time Magazine:
Mitchell refused to disclose any figures, but he indicated that the number was far lower than most people might think. “Any citizen of this United States who is not involved in some illegal activity,” he added, “has nothing to fear whatsoever.”
We supposedly learned important lessons from the abuses of power of the Nixon administration, and then of the Bush administration: namely, that we don’t trust government officials to exercise power in the dark, with no judicial oversight, with no obligation to prove their accusations. Yet now we hear exactly this same mentality issuing from Obama, his officials and defenders to justify a far more extreme power than either Nixon or Bush dreamed of asserting: he’s only killing The Bad Citizens, so there’s no reason to object!
Here’s a critique I wrote in January, 2006, of the Bush DOJ’s 42-page whitepaper justifying its warrantless eavesdropping on accused Terrorists. Just read that and you’ll see: the essence of the Bush view of the world was that when it comes to war, it is the President who has sole responsibility and power and courts may not review or interfere with what he decides about who is a Terrorist and what should be done to them. The President is the “sole organ for the Nation in foreign affairs,” declared the Bush DOJ, and ”among the President’s most basic constitutional duties is the duty to protect the Nation from armed attack” and thus, “the Constitution gives him all necessary authority to fulfill that responsibility.” Or, as Holder put it yesterday: “The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history” and therefore “the president is [not] required to get permission from a federal court.” One cannot reject the Bush legal worldview invoked to justify those programs while embracing the Obama worldview expressed here — at least not with an iota of intellectual coherence or dignity.
(5) The dubious or outright deceitful legal claims made by Holder are too numerous to chronicle all of them, but there are a couple worth highlighting. He said, for instance, that “the Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.” That part is true: in the 2004 case of Hamdi v. Rumsfeld, the Supreme Court rejected the Bush administration’s argument that it could detain American citizens accused of Terrorism without any process for them to contest the accusations against them, though the Court held that something less than a full-scale trial could satisfy the Due Process clause. But as Marcy Wheeler points out, the Court imposed “due process” requirements that are the exact opposite of what the Obama administration is doing with its assassinations. Said the Court (emphasis added):
It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. . . .
We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. . . .
In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.
How can Eric Holder possibly cite the Supreme Court’s Due Process holdings in the War on Terror context when the Court has held that citizens — merely to be detained, let alone killed — are entitled to exactly that which the Obama administration refuses to provide: “a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker” and “a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator”? It’s precisely because Obama refuses to fulfill those Court-imposed obligations before ordering citizens executed that this behavior is so objectionable.
If, as Holder argues, the Due Process Clause allows a citizen to be killed based on accusations by the President that are made in total secrecy and which he has no opportunity even to hear, let alone refute, then that core Constitutional safeguard is completely meaningless. And the Supreme Court in the very ruling Holder references leaves no doubt about that, as it required an adversarial hearing before a neutral arbiter even for someone accused of being an “enemy combatant” at the height of the War on Terror.
Then there is Holder’s reliance on the old neocon trick: cite what Lincoln did in the Civil War or what FDR did in World War II — as though those are comparable to the War on Terror — to justify what is being done now. Thus we hear this from Holder: “during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto — the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board.” This argument has been hauled out before by administration officials when responding to my critiques of Obama’s assassination program.
Even leaving aside the vast difference between wars posing an existential threat (the Civil War, WW2) and the so-called War on Terror, the difference between the Yamamoto killing and Obama’s citizen assassinations is self-evident. There was no doubt that Adm. Yamamoto was in fact a commander of an enemy army at war with the U.S.: he wore that army’s uniform and identified himself as such. By contrast, there is substantial doubt whether Anwar Awlaki or other accused Al Qaeda members are in fact guilty of plotting Terrorist attacks on the U.S. That’s true for exactly the reason that Holder, in another part of his speech, explained: Al Qaeda members “do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack.”
That’s why applying traditional war doctrine to accused Terrorists (who are not found on a battlefield but in their cars, their homes, at work, etc.) is so inappropriate, and why judicial review is so urgent: because the risk of false accusations is so much higher than it is when capturing uniformed soldiers on an actual battlefield. Just recall how dubious so many government accusations of Terrorism turned out to be once federal courts began scrutinizing those accusations for evidentiary support. Indeed, Yemen experts such as Gregory Johnsen have repeatedly pointed out in response to claims that Awlaki plotted Terrorist attacks: “we know very little, precious little when it comes to his operational role” and “we just don’t know this, we suspect it but don’t know it.” Given this shameful record in the War on Terror, what rational person would “trust” the Government to make determinations about who is and is not a Terrorist in the dark, with no limits or checks on what they can do?
(6) Holder’s attempt to justify these assassinations on the ground that “capture is not feasible” achieves nothing. For one, the U.S. never even bothered to indict Awlaki so that he could voluntarily turn himself in or answer the charges (though at one point, long after they first ordered him killed, they “considered” indicting him); instead, they simply killed him without demonstrating there was any evidence to support these accusations. What justifies that? Additionally, the fact that the Government is unable to apprehend and try a criminal does not justify his murder; absent some violent resistance upon capture, the government is not free to simply go around murdering fugitives who have been convicted of nothing. Moreover, that Awlaki could not have been captured in a country where the government is little more than an American client is dubious at best; if the U.S. could locate and enter the home of Osama bin Laden without the cooperation of the Pakistani government, why could it not do the same for Awlaki in Yemen?
But the most important point is that Holder is not confining this assassination power to circumstances where “capture is not feasible.” To the contrary, he specifically said that killing “would be lawful at least in the following circumstances”: meaning that the President’s asserted power is not confined to those conditions. As Charlie Savage wrote: “Significantly, Mr. Holder did not say that such a situation is the only kind in which it would be lawful to kill a citizen. Rather, he said it would be lawful ‘at least’ under those conditions.” We have no idea how far the Obama administration believes its assassination power extends because it refuses to release the legal memorandum justifying it; there is no legal framework governing it; and there is no transparency or accountability for the President’s execution orders.
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In sum, Holder’s attempt to make this all seem normal and common should insult anyone with the most basic understanding of American law. As The New York Times put it when first confirming the assassination program in April, 2010: ” The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen. . . . It is extremely rare, if not unprecedented, for an American to be approved for targeted killing, officials said. A former senior legal official in the administration of George W. Bush said he did not know of any American who was approved for targeted killing under the former president.” To date, not a single such citizen has been identified.
As always, the most important point to note for this entire debate is how perverse and warped it is that we’re even having this “debate” at all. It should be self-negating — self-marginalizing — to assert that the President, acting with no checks or transparency, can order American citizens executed far from any battlefield and without any opportunity even to know about, let alone rebut, the accusations. That this policy is being implemented and defended by the very same political party that spent the last decade so vocally and opportunistically objecting to far less extreme powers makes it all the more repellent. That fact also makes it all the more dangerous, because — as one can see — the fact that it is a Democratic President doing it, and Democratic Party officials justifying it, means that it’s much easier to normalize: very few of the Party’s followers, especially in an election year, are willing to make much of a fuss about it at all.
And thus will presidential assassination powers be entrenched as bipartisan consensus for at least a generation. That will undoubtedly be one of the most significant aspects of the Obama legacy. Let no Democrat who is now supportive or even silent be heard to object when the next Republican President exercises this power in ways that they dislike.