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The ‘War on Terror’ – by Design – Can Never End January 5, 2013

Posted by rogerhollander in Barack Obama, Iraq and Afghanistan, War, War on Terror.
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Published on Friday, January 4, 2013 by The Guardian

 

As the Pentagon’s former top lawyer urges that the war be viewed as finite, the US moves in the opposite direction

by Glenn Greenwald

endless_war_on_terror

A U.S. Army soldier takes cover as a Black Hawk chopper takes off from a U.S. military base in Arghandab valley near Kandahar. (Photo: Reuters)

Last month, outgoing pentagon general counsel Jeh Johnson gave a speech at the Oxford Union and said that the War on Terror must, at some point, come to an end:

“Now that efforts by the US military against al-Qaida are in their 12th year, we must also ask ourselves: How will this conflict end? . . . . ‘War’ must be regarded as a finite, extraordinary and unnatural state of affairs. We must not accept the current conflict, and all that it entails, as the ‘new normal.’ Peace must be regarded as the norm toward which the human race continually strives. . . .

“There will come a tipping point at which so many of the leaders and operatives of al-Qaida and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, that al-Qaida will be effectively destroyed.”

On Thursday night, MSNBC’s Rachel Maddow interviewed Johnson, and before doing so, she opined as follows:

“When does this thing we are in now end? And if it does not have an end — and I’m not speaking as a lawyer here, I am just speaking as a citizen who feels morally accountable for my country’s actions — if it does not have an end, then morally speaking it does not seem like it is a war. And then, our country is killing people and locking them up outside the traditional judicial system in a way I think we maybe cannot be forgiven for.”

It is precisely the intrinsic endlessness of this so-called “war” that is its most corrupting and menacing attribute, for the reasons Maddow explained. But despite the happy talk from Johnson, it is not ending soon. By its very terms, it cannot. And all one has to do is look at the words and actions of the Obama administration to know this.

There’s no question that this “war” will continue indefinitely. There is no question that US actions are the cause of that, the gasoline that fuels the fire.

In October, the Washington Post’s Greg Miller reported that the administration was instituting a “disposition matrix” to determine how terrorism suspects will be disposed of, all based on this fact: “among senior Obama administration officials, there is broad consensus that such operations are likely to be extended at least another decade.” As Miller puts it: “That timeline suggests that the United States has reached only the midpoint of what was once known as the global war on terrorism.”

The polices adopted by the Obama administration just over the last couple of years leave no doubt that they are accelerating, not winding down, the war apparatus that has been relentlessly strengthened over the last decade. In the name of the War on Terror, the current president has diluted decades-old Miranda warnings; codified a new scheme of indefinite detention on US soil; plotted to relocate Guantanamo to Illinois; increased secrecy, repression and release-restrictions at the camp; minted a new theory of presidential assassination powers even for US citizens; renewed the Bush/Cheney warrantless eavesdropping framework for another five years, as well as the Patriot Act, without a single reform; and just signed into law all new restrictions on the release of indefinitely held detainees.

Does that sound to you like a government anticipating the end of the War on Terror any time soon? Or does it sound like one working feverishly to make their terrorism-justified powers of detention, surveillance, killing and secrecy permanent? About all of this, the ACLU’s Executive Director, Anthony Romero, provided the answer on Thursday: “President Obama has utterly failed the first test of his second term, even before inauguration day. His signature means indefinite detention without charge or trial, as well as the illegal military commissions, will be extended.”

There’s a good reason US officials are assuming the “War on Terror” will persist indefinitely: namely, their actions ensure that this occurs. The New York Times’ Matthew Rosenberg this morning examines what the US government seems to regard as the strange phenomenon of Afghan soldiers attacking US troops with increasing frequency, and in doing so, discovers a shocking reality: people end up disliking those who occupy and bomb their country:

“Such insider attacks, by Afghan security forces on their Western allies, became ‘the signature violence of 2012′, in the words of one former American official. The surge in attacks has provided the clearest sign yet that Afghan resentment of foreigners is becoming unmanageable, and American officials have expressed worries about its disruptive effects on the training mission that is the core of the American withdrawal plan for 2014. . . .

“But behind it all, many senior coalition and Afghan officials are now concluding that after nearly 12 years of war, the view of foreigners held by many Afghans has come to mirror that of the Taliban. Hope has turned into hatred, and some will find a reason to act on those feelings.

“‘A great percentage of the insider attacks have the enemy narrative — the narrative that the infidels have to be driven out — somewhere inside of them, but they aren’t directed by the enemy,’ said a senior coalition officer, who asked not to be identified because of Afghan and American sensitivities about the attacks.”

In other words, more than a decade of occupying and brutalizing that country has turned large swaths of the population into the “Taliban”, to the extent that the “Taliban” means: Afghans willing to use violence to force the US and its allies out of their country. As always, the US – through the very policies of aggression and militarism justified in the name of terrorism – is creating the very “terrorists” those polices are supposedly designed to combat. It’s a pure and perfect system of self-perpetuation.

There is zero reason for US officials to want an end to the war on terror, and numerous and significant reasons why they would want it to continue.

Exactly the same thing is happening in Yemen, where nothing is more effective at driving Yemenis into the arms of al-Qaida than the rapidly escalated drone attacks under Obama. This morning, the Times reported that US air strikes in Yemen are carried out in close cooperation with the air force of Saudi Arabia, which will only exacerbate that problem. Indeed, virtually every person accused of plotting to target the US with terrorist attacks in last several years has expressly cited increasing US violence, aggression and militarism in the Muslim world as the cause.

There’s no question that this “war” will continue indefinitely. There is no question that US actions are the cause of that, the gasoline that fuels the fire. The only question – and it’s becoming less of a question for me all the time – is whether this endless war is the intended result of US actions or just an unwanted miscalculation.

It’s increasingly hard to make the case that it’s the latter. The US has long known, and its own studies have emphatically concluded, that “terrorism” is motivated not by a “hatred of our freedoms” but by US policy and aggression in the Muslim world. This causal connection is not news to the US government. Despite this – or, more accurately, because of it – they continue with these policies.

One of the most difficult endeavors is to divine the motives of other people (divining our own motives is difficult enough). That becomes even more difficult when attempting to discern the motives not of a single actor but a collection of individuals with different motives and interests (“the US government”).

But what one can say for certain is that there is zero reason for US officials to want an end to the war on terror, and numerous and significant reasons why they would want it to continue. It’s always been the case that the power of political officials is at its greatest, its most unrestrained, in a state of war. Cicero, two thousand years ago, warned that “In times of war, the law falls silent” (Inter arma enim silent leges). John Jay, in Federalist No. 4, warned that as a result of that truth, “nations in general will make war whenever they have a prospect of getting anything by it . . . for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans.”

Only outside compulsion, from citizens, can make an end to all of this possible.

If you were a US leader, or an official of the National Security State, or a beneficiary of the private military and surveillance industries, why would you possibly want the war on terror to end? That would be the worst thing that could happen. It’s that war that generates limitless power, impenetrable secrecy, an unquestioning citizenry, and massive profit.

Just this week, a federal judge ruled that the Obama administration need not respond to the New York Times and the ACLU’s mere request to disclose the government’s legal rationale for why the President believes he can target US citizens for assassination without due process. Even while recognizing how perverse her own ruling was – “The Alice-in-Wonderland nature of this pronouncement is not lost on me” and it imposes “a veritable Catch-22″ – the federal judge nonetheless explained that federal courts have constructed such a protective shield around the US government in the name of terrorism that it amounts to an unfettered license to violate even the most basic rights: “I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret” (emphasis added).

Why would anyone in the US government or its owners have any interest in putting an end to this sham bonanza of power and profit called “the war on terror”? Johnson is right that there must be an end to this war imminently, and Maddow is right that the failure to do so will render all the due-process-free and lawless killing and imprisoning and invading and bombing morally indefensible and historically unforgivable.

But the notion that the US government is even entertaining putting an end to any of this is a pipe dream, and the belief that they even want to is fantasy. They’re preparing for more endless war; their actions are fueling that war; and they continue to reap untold benefits from its continuation. Only outside compulsion, from citizens, can make an end to all of this possible.

© 2012 Guardian News and Media Limited

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

Accountability for Bush’s Torture November 30, 2012

Posted by rogerhollander in Barack Obama, Civil Liberties, Constitution, Criminal Justice, Dick Cheney, George W. Bush, Human Rights, Torture.
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Roger’s note: the United States government has a long history of disgraceful behavior, and the Bush/Cheney torture regime is one of the most heinous.  We need to be constantly reminded, and we need to acknowledge that the Obama government’s disregard of its constitutional obligation to prosecute constitutes legal and moral complicity.

By (about the author)
OpEdNews Op Eds 11/29/2012 at 20:45:34

opednews.com

In June 2004, in the wake of the Abu Ghraib scandal,    a notorious memo from August 2002 was leaked . It was written by John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel and it claimed to redefine torture and to authorize its use on prisoners seized in the “war on terror.” I had no idea at the time that its influence would prove to be so long-lasting.
Ten years and four months since it was first issued, that memo — one of two issued on the same day that will forever be known as the “torture memos” — is still protecting the senior Bush administration officials who commissioned it (as well as Yoo and his boss, Jay S. Bybee, who signed it).

Those officials include George W. Bush, former Vice President Dick Cheney, and their senior lawyers, Alberto Gonzales and David Addington. None of them should be immune from prosecution, because torture is illegal under U.S. domestic law and is prohibited under the terms of the UN Convention Against Torture, which the United States, under Ronald Reagan, signed in 1988 and ratified in 1994. As Article 2.2 states, unequivocally, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

However, the architects of the torture program didn’t care, and still don’t care, because for them the disgraceful memos written by Yoo were designed to be a “golden shield,” a guarantee that, whatever they did, they were covered, because they had legal advice telling them that torture was not torture.

Barack Obama came into office promising to ban the use of torture. His administration released the second Yoo and Bybee “torture memo” and three later “torture memos” from 2005 as part of a court case in April 2009. That, however, was the end of the Obama administration’s flirtation with accountability. In court, every avenue that lawyers have tried to open up has been aggressively shut down by the government, citing the “state secrets doctrine,” another “golden shield” for torturers, which prohibits the discussion of anything the government doesn’t want discussed, for spurious reasons of national security.

The only other opportunity to stop the rot came three years ago, when an internal DoJ ethics investigation concluded, after several years of diligent work, that Yoo and Bybee were guilty of “professional misconduct” when they wrote and signed the memos. That could have led to their being disbarred, which would have been inconvenient for a law professor at UC Berkeley (Yoo) and a judge in the Ninth Circuit Court of Appeals (Bybee). It also might well have set off ripples that would have led to Bush and Cheney and their lawyers.

However, at the last minute a long-time DoJ fixer, David Margolis, was allowed to override the report’s conclusions, claiming that both men were guilty only of “poor judgment,” which, he alleged, was understandable in the aftermath of the 9/11 attacks, and which carried no sanctions whatsoever.

Thwarted in the United States, those seeking accountability have had to seek it elsewhere: in Spain; in Poland, where one of the CIA’s “black sites” was located; and in Italy, where 23 Americans — 22 CIA agents and an Air Force colonel — were convicted in November 2009, in a ruling that was upheld on appeal in September this year, of kidnapping an Egyptian cleric, Abu Omar, and rendering him to Egypt, where he was tortured.

The United States has refused to extradite any of the men and women convicted in Italy, but the ruling is a reminder that not everyone around the world believes in Yoo’s and Bybee’s “golden shield.”

Moreover, although senior Bush administration officials — Bush and Cheney themselves and Donald Rumsfeld — have so far evaded accountability, their ability to travel the world freely has been hampered by their actions. In February 2011, for example, Bush called off a visit to Switzerland when he was notified that lawyers — at the New York-based Center for Constitutional Rights (CCR) and the Berlin-based European Center for Constitutional and Human Rights — had prepared a massive torture indictment that was to be presented to the Swiss government the moment he landed in the country.

The former president was told that foreign countries might take their responsibilities under the UN Convention Against Torture more seriously than America has and arrest him on the basis that his home country had failed to act on the clear evidence that he had authorized torture, which he had actually boasted about in his memoir, Decision Points, published in November 2010.

Most recently, lawyers seeking accountability have tried pursuing Bush in Canada. Last September, prior to a visit by the former president, CCR and the Canadian Centre for International Justice (CCIJ) submitted a 69-page draft indictment to Attorney General Robert Nicholson, along with more than 4,000 pages of supporting material setting forth the case against Bush for torture.

When that was turned down, the lawyers launched a private prosecution in Provincial Court in Surrey, British Columbia, on behalf of four Guantanamo prisoners — Hassan bin Attash, Sami el-Hajj, Muhammed Khan Tumani, and Murat Kurnaz (all released, with the exception of bin Attash) — on the day of Bush’s arrival in Canada.

That avenue also led nowhere because the attorney general of British Columbia swiftly intervened to shut down the prosecution. Undeterred, however, CCR and CCIJ last week tried a new approach on behalf of those four men who, as Katherine Gallagher of CCR explained in the Guardian, “are all survivors of the systematic torture program the Bush administration authorized and carried out in locations including Afghanistan, Iraq, Guantánamo, and numerous prisons and CIA “black sites’ around the world.”

“Between them,” she added, “they have been beaten; hung from walls or ceilings; deprived of sleep, food, and water; and subjected to freezing temperatures and other forms of torture and abuse while held in U.S. custody.”

The new approach taken by the lawyers was to file a complaint with the UN Committee Against Torture, in which the four men “are asking one question: how can the man responsible for ordering these heinous crimes openly enter a country that has pledged to prosecute all torturers regardless of their position and not face legal action?”

As Gallagher explained, “Canada should have investigated these crimes. The responsibility to do so is embedded in its domestic criminal code that explicitly authorizes the government to prosecute torture occurring outside Canadian borders. There is no reason it cannot apply to former heads of state, and indeed, the convention has been found to apply to such figures including Hissène Habré [the former president of Chad] and Augusto Pinochet.”

That is true, and it will be interesting to see how the UN Committee Against Torture responds. Probably the “golden shield” will not need to be invoked once more by the United States, as the Canadian government evidently has no wish to annoy its neighbor. Moreover, it has its own appalling track record when it comes to preserving human rights in the “war on terror,” as the cases of Omar Khadr in Guantanamo, and Mahar Arar and others who were tortured in Syria demonstrate. However, the submission is to be commended for reminding people that great crimes — committed by the most senior U.S. officials and their lawyers — still remain unpunished, and that that is a situation that ought to be considered a major disgrace rather than something to be brushed aside.

Obama Justice Department indicts ex-CIA agent for exposing torture April 8, 2012

Posted by rogerhollander in Barack Obama, Torture, War on Terror.
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, www.opednews.com, April 8, 2012

Thursday’s indictment of John Kiriakou for exposing CIA torture of  detainees confirms yet again that the Obama administration is continuing and deepening the crimes carried out by the Bush White House. Kiriakou, a CIA agent for 14 years, is being prosecuted for speaking to two  journalists about the waterboarding of Abu Zubaydah.

In December  2007, he appeared in an ABC News interview, becoming the first CIA  official to confirm the use of waterboarding of so-called “enemy  combatants” and to describe the practice as torture. It is now known  that Zubaydah was waterboarded 83 times in the space of one month while  being held in a series of CIA “black sites” from Thailand to Poland to  Diego Garcia.

Zubaydah, severely wounded when he was captured by  US and Pakistani intelligence agents, had already been suffering the  effects of a shrapnel wound to the head he received during the  CIA-backed war in Afghanistan in the 1980s. Under US control, he was  beaten, placed in extreme temperatures, and subjected to music played at debilitating volumes, sexual humiliation and sleep deprivation.

His interrogators also locked him for protracted periods in a small box,  where he was forced to crouch in complete darkness, while the stressful  position caused his wounds to open up and bleed.

At some point during this ordeal, the CIA removed Zubaydah’s left eye.

Zubaydah’s torture was overseen in detail by the top officials of the US government, from President George W. Bush and Vice  President Dick Cheney on down.

Bush publicly described Zubaydah  as Al Qaeda’s chief of operations, in charge of “plotting and planning  death and destruction on the United States.” He was charged not only  with planning 9/11, but with involvement in virtually every other crime  attributed to Al Qaeda.

In September of last year, in response to habeas corpus filings by Zubaydah’s attorneys demanding justification  for his continued imprisonment at the US prison camp in Guantanamo Bay,  Cuba, the government formally recanted these charges. It acknowledged  that Zubaydah had no “direct role in or advance knowledge of the  terrorist attacks of September 11, 2001,” and had not been a “member” of Al Qaeda or even “formally” identified with the organization.

Yet, after a decade of imprisonment and torture, the government refuses to  either try or release him. He is one of those designated by the Obama  administration to be detained indefinitely without charges.

The  reasons are clear. There appears to be no evidence against him, and his  case raises a whole range of crimes by government officials, including  torture and the CIA’s destruction of videotapes recording his  interrogation sessions, carried out in defiance of court demands that  they be produced.

Nor have any of those responsible for the  torture of Zubaydah and countless others been brought to justice. This  includes not just the CIA torturers, but Bush, Cheney, former CIA  Director George Tenet, former National Security Advisor Condoleezza  Rice, and ex-Justice Department officials like Jay Bybee, and John Yoo,  who drafted the memos arguing that torture was legal.

The Obama  administration has protected all of these individuals, repeatedly  intervening in court and invoking “state secrets” to quash cases brought by torture victims.

While refusing to either try or release the  victim of torture, Zubaydah, or to prosecute those responsible for the  crimes committed against him, the Obama administration is prosecuting  Kiriakou for daring to publicly expose these crimes, threatening him  with up to 45 years in prison.

It is not an accident that the  indictment of Kiriakou comes just a day after the Pentagon’s formal  presentation of capital charges against Khalid Sheik  Mohammed — waterboarded 183 times — and four others alleged to be part of  the 9/11 conspiracy. It is a means of intimidating the attorneys of the  defendants. The government wants to preclude any disruption of its  rigged military commission at Guantanamo with charges of torture.

More fundamentally, the prosecution of Kiriakou is part of a policy of state secrecy and repression that pervades the US government under Obama, who came into office promising “the most transparent administration in  history.” This marks the sixth government whistleblower to be charged by the Obama administration under the Espionage Act, twice as many such  prosecutions as have been brought by all preceding administrations  combined. Prominent among them is Private Bradley Manning, who is  alleged to have leaked documents exposing US war crimes to WikiLeaks. He has been held under conditions tantamount to torture and faces a  possible death penalty.

In all of these cases, the World War  I-era Espionage Act is being used to punish not spying on behalf of a  foreign government, but exposing the US government’s own crimes to the  American people. The utter lawlessness of US foreign policy goes hand-in-hand with the collapse of democracy at home.

These cases make  clear that it is the American working people whom the government views  as its most dangerous enemy. It is determined to keep them in the dark  as it systematically erects the framework for a police-state  dictatorship.

Over the last few months, Obama has signed into law legislation granting himself the power to condemn alleged enemies of  the state to indefinite military detention without charges or trials,  and his attorney general, Eric Holder, has publicly asserted the “right” of the president to order the assassination of American citizens  alleged to be involved in “hostilities” towards the US government.

After more than three years in office, it is abundantly clear that the Obama  administration has substantially escalated the crimes carried out by its predecessor, both in terms of militarism abroad and state repression at home. These crimes were not the outcome of some specific right-wing  ideology of the Bush White House, but rather the response of the US  ruling elite to the decline in the global position of American  capitalism and the growth of social inequality at home, which has  increasingly rendered democratic methods of rule untenable.

The  repressive measures being implemented by the government are targeted  first and foremost at an anticipated eruption of mass popular struggles  against the policies of the ruling class and the conditions being  created by the crisis of the capitalist system

Un-Cheating Justice: Two Years Left to Prosecute Bush March 4, 2012

Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture, War.
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Sunday 4 March 2012
by: David Swanson, War Is A Crime.org                 | Op-Ed

Elizabeth Holtzman knows something about struggles for justice in the U.S. government.  She was a member of Congress and of the House Judiciary Committee that voted for articles of impeachment against President Richard Nixon in 1973. She proposed the bill that in 1973 required that “state secrets” claims be evaluated on a case-by-case basis. She co-authored the special prosecutor law that was allowed to lapse, just in time for the George W. Bush crime wave, after Kenneth Starr made such a mockery of it during the Whitewater-cum-Lewinsky scandals.  She was there for the creation of the Foreign Intelligence Surveillance Act (FISA) in 1978. She has served on the Nazi War Crimes and Japanese Imperial Government Records Interagency Working Group, bringing long-escaped war criminals to justice.  And she was an outspoken advocate for impeaching George W. Bush.

Holtzman’s new book, coauthored with Cynthia Cooper, is called “Cheating Justice: How Bush and Cheney Attacked the Rule of Law and Plotted to Avoid Prosecution — and What We Can Do About It.”  Holtzman begins by recalling how widespread and mainstream was the speculation at the end of the Bush nightmare that Bush would pardon himself and his underlings.  The debate was over exactly how he would do it.  And then he didn’t do it at all.

Holtzman ends her book by pointing out that legal accountability can come after many years, as in the case of various Nazis, or of Chilean dictator Augusto Pinochet, or of the murderers of civil rights activists including Medgar Evers.

In between, for the bulk of the book, Holtzman, a former district attorney, lays out the prospects for a prosecution of Bush and others on charges of lying to Congress about the grounds for war, wiretapping Americans, and conspiring to torture.  This is an excellent sampling of the many horrors on the list of Bush’s abuses, and clearly the three areas in which Holtzman believes a prosecution would stand the best chance of success.  Her analysis of the war lies parallels and builds on that of Elizabeth de la Vega, another former prosecutor who has written on the topic.  Holtzman adds an analysis of the steps Bush took to protect himself from prosecution in this and each other area.  She also examines his possible legal defenses, finding some of them strong and others easily overcome.

In each area Holtzman finds charges that would stick, if our laws were enforced.  She also finds charges that would have stuck, had the statute of limitations not elapsed, and others for which a couple of years yet remain.  Holtzman believes charges for conspiring to defraud the government with war lies could be brought until January 20, 2014.  She also believes that charges for violation of FISA could be brought until that same date, pointing out that changes made to the law have not provided immunity for prior violations of what the law used to be, and that immunity has been granted from civil suits but not from criminal prosecution.  Charges of torture, Holtzman concludes, could be brought at any time in the future.

Holtzman argues for lengthening the statutes of limitations for grave abuses of power, for creating a special prosecutor, restoring the War Crimes Act, reclaiming protection against unchecked surveillance, recovering missing records, pursuing civil cases, impeaching torture lawyer turned judge Jay Bybee, and looking abroad for hope and change.  She sees some chance of the International Criminal Court pursuing charges of torture.

This book is an ideal guide for a prosecutor with nerve and decency, although we haven’t found one in this country in the past several years.  Other than Kurt Daims who is running for the office of Town Grand Juror in Brattleboro, Vermont, which voted to direct its police to indict Bush and Cheney four years ago, I’m not aware of any prosecutors in the United States with plans to pursue this kind of justice.

Glaringly absent from Holtzman’s book, despite its 2012 publication date, is any significant mention of the approach that President Obama has taken.  There’s not one word about “looking forward, not backward,” not even so much as one tangential reference to Obama’s public instructions to Attorney General Eric Holder, no analysis of the intense effort that the Justice Department, State Department, and White House have pursued to protect Bush and Cheney from accountability, no mention of the ways in which Obama has continued a similar pattern of criminality — a state of affairs which, of course, might explain his reluctance to allow the enforcement of laws against his predecessor.

I don’t think it’s an unfair criticism to object that a book has left out a large but intimately related topic, one that apears to have been carefully avoided.  Partisan prosecution of crimes and non-crimes by Republicans under President Clinton has been aggravated by Republican defensiveness and Democratic spinelessness under Bush.  But it is the Democratic switch to defending all presidential wrongdoing since 2008 that has put the largest nails into the coffin of legitimate rule by law in this country.  Bush’s crimes have been legitimized.  Obama has claimed the power to torture as he deems necessary, the power to imprison and rendition as he sees fit, the power to murder any human being including U.S. citizens and children as he and he alone declares necessary, and powers of state secrecy that Nixon and Cheney never dreamed of.  While Bush lied the Congress into a war that a reasonably intelligent 8 year old could have seen through, Obama has made the launching of wars a matter for the president alone.  And that’s just fine with Democrats.  Surely Holtzman is aware that this partisanship is a cancer, that it has ruined the power of impeachment and done away with truly independent special prosecutors, and that the purpose of accountability is to halt the ongoing acceptance of crime.

I have to quibble as well with Holtzman’s lowballing of the Iraq war death count by two orders of magnitude.  I know everybody does it, but I still find it grotesque.

And yet I have to strongly recommend that this book be read and presented to every prosecutor in this country, including the seemingly shameless Eric Holder.  We’ve got 23 months.

ACLU sues Obama administration over assassination secrecy February 2, 2012

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Human Rights, War on Terror.
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Roger’s note: Here is a breath of fresh air for Tricky Dick Nixon as he boils in Hell .  His infamous “if the president does it it’s legal,” thanks to Bush and Obama, is now the law of the land.

The President boasts in public about his executions, then hides behind secrecy claims to shield it from the law

By Glenn Greenwald, www.salon.com, February 2, 2012

Barack Obama

President Barack Obama walks to Marine One on the South Lawn of the White House in Washington, Wednesday, Jan. 25, 2012.  (AP Photo/Evan Vucci)  (Credit: AP)

(updated below)

The ACLU yesterday filed a lawsuit against various agencies of the Obama administration — the Justice and Defense Departments and the CIA — over their refusal to disclose any information about the assassination of American citizens. In October, the ACLU filed a FOIA request demanding disclosure of the most basic information about the CIA’s killing of 3 American citizens in Yemen: Anwar Awlaki and Samir Khan, killed by missiles fired by a U.S. drone in September, and Awlaki’s 16-year-old son, Abdulrahman, killed by another drone attack two weeks later.

The ACLU’s FOIA request sought merely to learn the legal and factual basis for these killings — meaning: tell us what legal theories you’ve adopted to secretly target U.S. citizens for execution, and what factual basis did you have to launch these specific strikes? The DOJ and CIA responded not only by refusing to provide any of this information, but refused even to confirm if any of the requested documents exist; in other words, as the ACLU put it yesterday, “these agencies are saying the targeted killing program is so secret that they can’t even acknowledge that it exists.” That refusal is what prompted yesterday’s lawsuit (in December, the New York Times also sued the Obama administration after it failed to produce DOJ legal memoranda “justifying” the assassination program in response to a FOIA request from reporters Charlie Savage and Scott Shane, but the ACLU’s lawsuit seeks disclosure of both the legal and factual bases for these executions).

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. It’s extraordinary enough that the Obama administration is secretly targeting citizens for execution-by-CIA; that they refuse even to account for what they are doing — even to the point of refusing to disclose their legal reasoning as to why they think the President possesses this power — is just mind-boggling. Truly: what more tyrannical power is there than for a government to target its own citizens for death — in total secrecy and with no checks — and then insist on the right to do so without even having to explain its legal and factual rationale for what it is doing? Could you even imagine what the U.S. Government and its media supporters would be saying about any other non-client-state country that asserted and exercised this power?

But there’s one abuse that deserves special attention here: namely, the way in which the Obama administration manipulates and exploits its secrecy powers. Here is what the DOJ said to the ACLU about why it will not merely withhold all records, but will refuse even to confirm or deny whether any such records exist:

So the Most Transparent Administration Ever™ refuses even to confirm or deny if there is an assassination program, or if it played any role in the execution of these three Americans, because even that most elementary information is classified.

What makes this assertion so inexcusable — beyond its inherently and self-evidently anti-democratic nature — is that the Obama administration constantly boasts in public about this very same program when doing so is politically beneficial for the President. The day Awlaki was killed, the President himself began a White House ceremony by announcing Awlaki’s death, trumpeting it as “a major blow to al Qaeda’s most active operational affiliate,” boasting that “the death of al-Awlaki marks another significant milestone in the broader effort to defeat al Qaeda and its affiliate,” and then patting himself on the back one last time: “this success is a tribute to our intelligence community.” Here’s how Obama hailed himself for the Awlaki killing on The Tonight Show with Jay Leno:

THE PRESIDENT: But al Qaeda is weaker than anytime in recent memory. We have taken out their top leadership position. That’s been a big accomplishment.

(Applause.)

JAY LENO: Can I ask you about taking out their top leadership, al-Awlaki, this guy, American-born terrorist? How important was he to al Qaeda?

THE PRESIDENT: Do you — what happened was we put so much pressure on al Qaeda in the Afghan/Pakistan region –

JAY LENO: Right.

THE PRESIDENT: — that their affiliates were actually becoming more of a threat to the United States. So Awlaki was their head of external operations. This is the guy that inspired and helped to facilitate the Christmas Day bomber. This is a guy who was actively planning a whole range of operations here in the homeland and was focused on the homeland. And so this was probably the most important al Qaeda threat that was out there after Bin Laden was taken out, and it was important that working with the enemies, we were able to remove him from the field.

(Applause.)

Earlier this week, Defense Secretary Leon Panetta went on 60 Minutes and described the process by which U.S. citizens are targeted for assassination: “the President of the United States has to sign off and he should.” Obama officials have repeatedly gone to the media anonymously to make claims about Awlaki’s guilt and to justify their assassination program. Here is one “senior administration lawyer” — cowardly hiding behind anonymity — responding to my criticisms and justifying the assassination program to Benjamin Wittes (who naturally protected him from being identified). When I spoke at an NYU Law School event in 2010 and criticized what was then the Awlaki assassination attempt while sitting next to FBI Counter-Terrorism official Niall Brennan, NPR’s national security reporter, Dina Temple-Raston, stood up and revealed that Obama officials had secretly shown her snippets of evidence to demonstrate that Awlaki was involved in actual Terrorist plots.

So Obama can go on TV shows and trigger applause for himself by boasting of the Awlaki killing. He can publicly accuse Awlaki of all sorts of crimes for which there has been no evidence presented. He can dispatch his aides to anonymously brag in newspapers about all the secret evidence showing Awlaki’s guilt and showing how resolute and tough the President is for ordering him executed. Justice Department and Pentagon officials scamper around in the dark flashing snippets of evidence about Awlaki to reporters like Temple-Raston so that they dutifully march forward to defend the government’s assassination program. Obama officials will anonymously insist in public that they have legal authority to target citizens for killing without trial.

But when it comes time to account in a court or under the law for the legal authority and factual basis for what they have done — in other words, when it comes time to demonstrate that they are actually acting legally when doing it — then, suddenly, everything changes. When they face the rule of law, then the program is so profoundly classified that it cannot be spoken of at all — indeed, the administration cannot even confirm or deny that it exists — and it therefore cannot be scrutinized by courts at all.

Worse, they not only invoke these secrecy claims to avoid the ACLU and NYT‘s FOIA requests, but they also invoked it when Awlaki’s father sued them and asked a court to prevent President Obama from executing his son without a trial. When forced to justify their assassination program in court, the Obama DOJ insisted that the program was so secretive that it could not even safely confirm that it existed — it’s a state secret – and thus no court could or should review its legality (see p.43 of the DOJ’s brief and Panetta’s Affidavit in the Awlaki lawsuit). As the ACLU said yesterday:

The government’s self-serving attitude toward transparency and disclosure is unacceptable. Officials cannot be allowed to release bits of information about the targeted killing program when they think it will bolster their position, but refuse even to confirm the existence of a targeted killing program when organizations like the ACLU or journalists file FOIA requests in the service of real transparency and accountability.

This selective, manipulative abuse of secrecy reveals its true purpose. It has nothing to do with protecting national security; that’s proven by the Obama administration’s eagerness to boast about the program publicly and to glorify it when it helps the President politically. The secrecy instead has everything to do with (1) preventing facts that would be politically harmful from being revealed to the American public, and (2) shielding the President’s conduct from judicial review. And this cynical abuse of secrecy powers extends far beyond the Awlaki case; as the ACLU’s Jameel Jaffer wrote in an excellent LA Times Op-Ed last year: “where the state’s ostensible secrets are concerned, it has become common for government officials to tell courts one thing — nothing — and reporters another.”

This is the wretched game that both the Bush and Obama administrations have long been playing: boasting in public about their conduct but then invoking secrecy claims to shield it from true accountability or legal adjudication. Jaffer described the template this way:

After the New York Times disclosed the existence of the National Security Agency’s warrantless wiretapping program, the Bush administration officially acknowledged the program, described and defended it publicly, and made available to the press a 40-page report detailing the program’s supposed legal basis. Five months later, the administration sought to quash a constitutional challenge by arguing that the government couldn’t defend the program in court without disclosing information that was simply too sensitive to disclose.

This is exactly the same model used by both the Bush and Obama DOJs to shield warrantless eavesdropping, rendition, torture, drones, civilian killings and a whole host of other crimes from judicial review, i.e., from the rule of law. Everyone knows that the U.S. Government is doing these things. They are discussed openly all over the world. The damage they do and the victims they leave behind make it impossible to conceal them. Often, they are the subject of judicial proceedings in other countries. Typically, U.S. officials will speak about them and justify and even glorify them to American media outlets anonymously.

There’s only one place in the world where these programs cannot be discussed: in American courts. That’s because, when it comes time to have real disclosure and adversarial checks — rather than one-sided, selective, unverifiable disclosure — and when it comes time to determine if government officials are breaking the law, the administration ludicrously claims that it is too dangerous even to confirm if such a program exists (and disgracefully deferential federal courts in the post-9/11 era typically acquiesce to those claims). So here we have the nauseating spectacle of the Obama administration secretly targeting its own citizens for assassination, boasting in public about it in order to show how Tough and Strong the President is, but then hiding behind broad secrecy claims to shield their conduct from meaningful transparency, public debate, and legal review, all while pretending that they are motivated by lofty National Security Concerns when wielding these secrecy weapons. The only thing worse than the U.S. Government’s conduct of most affairs behind a wall of secrecy is how cynical, manipulative and self-protective is its invocation of these secrecy powers.

* * * * *

Next week, from February 6-11, I’ll be speaking at numerous events around the country regarding the state of civil liberties. I’ll be in New York, Indiana, Tennessee, Ohio and — to deliver the keynote address to the ACLU in Idaho’s annual dinner — in Boise, Idaho. All events are open to the public. Event information is here.

* * * * *

Whenever these issues are discussed, people often ask what can be done about them. There are no easy answers to that question, but supporting the ACLU is definitely one important act (as I noted many times, I previously consulted with the ACLU but have not done so for a couple of years). There are several excellent civil liberties groups in the U.S. worthy of support (CCR is one example), but the ACLU is constantly at the forefront in imposing at least some substantial barriers to the government’s always-escalating abuse of its powers, and, unlike most advocacy groups in the U.S., it defends its values and imposes checks without the slightest regard for which party controls the government (recall the 2010 statement of its Executive Director, Anthony Romero, about President Obama’s civil liberties record). One can become a member of the ACLU or otherwise support its genuinely vital work here.

 

UPDATE: A very similar game is being played with regard to the U.S.’s use of drones generally. For years, Obama officials have refused even to acknowledge that there is such a thing as a CIA drone program even though everyone knows there is. But this week, the President was asked during an Internet forum about his drone attacks and he made very specific claims about it in order to glorify and justify it. Nonetheless, as this Washington Post article notes, the administration still refuses to answer any questions about the drone program — or even acknowledge its existence — based on the claim that its very existence (which the President just discussed in public) is classified.

Illustrating the absurdity of the administration’s exploitation of secrecy powers, White House spokesman Jay Carney was asked yesterday whether President Obama broke the law by disclosing information about the classified drone program, and this is what Carney said:

White House spokesman Jay Carney rebuffed questions Tuesday about whether President Obama had violated intelligence restrictions on the secret U.S. drone program in Pakistan when he openly discussed the subject the day before. . . .  Asked if the president had made a mistake, Carney said he was “not going to discuss . . . supposedly covert programs.”

He suggested that nothing Obama had said could be a security violation: “He’s the commander in chief of the armed forces of the United States. He’s the president of the United States.”

In other words, if the President discloses classified information, then it’s inherently legal, even if he does not declassify the information (a slight variation on President Nixon’s infamous if-the-President-does-it-then-it’s-legal decree). But this is exactly the opposite of what President Obama said when he publicly decreed Bradley Manning guilty: “If I was to release stuff, information that I’m not authorized to release, I’m breaking the law.” Clearly, that’s exactly what President Obama did when he discussed drones this week — and what he did before that by boasting of the classified Awlaki killing on The Tonight Show – but that’s the point: secrecy powers (like the law generally) is merely a weapon to protect and advance the interests of government officials. That’s why President Obama feels free to make whatever claims he wants about these programs to justify himself, but then turn around and tell courts that he cannot even acknowledge if they exist: that way, courts cannot examine their legality, and the public cannot learn anything about the programs that would enable them to verify the President’s assertions about them.

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.

Leon Panetta’s explicitly authoritarian decree January 30, 2012

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Democracy, Uncategorized, War on Terror.
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Defense Secretary Leon Panetta listens as President Barack Obama speaks on the Defense Strategic Review, Thursday, Jan. 5, 2012, at the Pentagon. (Credit: AP Photo/Haraz N. Ghanbari)
Roger’s note: I try not to burden the readers of this Blog with excessive repetition, and I have posted articles on this theme several times.  Just as the blatant torture regime of Cheney/Bush was mind-boggling in its violation of constitutional and international law, so is the Obama regime’s institution of presidential assassination of US citizens with no process and no accountability.  If the president says you are a terrorist, he can kill you.  Doesn’t even measure up to the Alice in Wonderland standard of “execution first, trial later.”  There is no trial.  The United States was founded upon a basic and fundamental principle that reflected the real danger of unchecked government power.  This principle is embedded in the constitution and the Bill of Rights; and today it is simply ignored with impunity.  When all is said and done, Obama justifies this monstrous abuse of authority on the notion that the entire world is a battleground in the so-called War on Terror, which gives him the right to execute an “identified” enemy as a soldier would on a real battlefield.  The flaws in this logic are too obvious to need pointing out.  It is the same logic that justifies sending predator missiles into anywhere he chooses, regardless of how many innocent civilians he kills in the process.  So far Obama has only killed a couple of American citizens.  Imagine the precedent he has set and how it would possibly be used in the hands of one of the Republican maniacs that could occupy the White House one day soon.
Glenn Greenwald,  www.salon.com, January 30, 2012

CBS News‘ Scott Pelley appears to be one of the very few American journalists bothered by, or even interested in, the fact that President Obama has asserted and exercised the power to target U.S. citizens for execution-by-CIA without a shred of due process and far from any battlefield. It was Pelley who deftly interrogated the GOP presidential candidates at a November debate about the propriety of due-process-free assassinations, prompting Newt Gingrich, Mitt Romney, and Michele Bachmann to applaud President Obama for assassinating Awlaki (just as Rick Perry, Dick and Liz Cheney, and Bill Kristol had done). Last night, Pelley did the same when he interviewed Defense Secretary and former CIA chief Leon Panetta on 60 Minutes. It’s well worth watching this three-minute clip because, although Panetta doesn’t say much that is new (he simply asserts the standard slogans and unproven assertions that Obama defenders on this topic always assert), watching a top Obama official, under decent questioning, defend the power to target U.S. citizens for assassination viscerally conveys the rigidly authoritarian mindset driving all of this:

Panetta’s answers are suffused with dubious and even factually false claims. It is, for instance, false that the U.S. provides due process to everyone apprehended for Terrorism. To the contrary, the Obama administration has been holding dozens of Terrorism suspects without any charges for years, and President Obama just signed into law a bill codifying the power of indefinite detention for accused Terrorists. But even if it were true that all Terrorism suspects who are detained were entitled to receive due process, that merely underscores how warped it is to assert the power to target them for execution without due process. After all, how can it be that the Government must prove guilt merely to imprison Terrorists but not to execute them?

But this is one of the towering, unanswerable hypocrisies of Democratic Party politics. The very same faction that pretended for years to be so distraught by Bush’s mere eavesdropping on and detention of accused Terrorists without due process is now perfectly content to have their own President kill accused Terrorists without due process, even when those targeted are their fellow citizens: obviously a far more Draconian and permanent abuse than eavesdropping or detention (identically, the very same faction that objected to Bush’s radical whole-world-is-a-Battlefield theory now must embrace exactly that theory to justify how someone riding in a car, or sitting at home, or sleeping in his bed, in a country where no war is declared, is “on a battlefield” at the time the CIA ends his life).

It is equally false, and independently both misleading and perverse, for Panetta to assert that a citizen in Awlaki’s position could come to the U.S. to assert his due process rights. For one thing, Awlaki was never charged or indicted for anything in the U.S. — he was simply executed without any charges (the Obama administration, after trying to kill him, reportedly “considered” charging him with crimes at one point but never did) – and thus, there was nothing to which he could “turn himself” in even if he wanted to. Even worse, President Obama’s hit list of those he approves for assassination is completely secret; we only learned that Awlaki was being targeted because someone happened to leak that fact to Dana Priest. The way the process normally works, as Reuters described it, is that targeted Americans are selected “by a secretive panel of senior government officials, which then informs the president of its decisions”; moreover, “there is no public record of the operations or decisions of the panel” nor “any law establishing its existence or setting out the rules by which it is supposed to operate.” So, absent a fortuitous leak (acts for which the Obama administration is vindictively doling out the most severe punishment), it would be impossible for American citizens to know that they’ve been selected for execution by President Obama (and thus obviously impossible to to assert one’s due process rights to stop it).

Worse still, if a judicial proceeding is commenced by a targeted American seeking to put a halt to the assassination attempt in the absence of a trial — as Awlaki’s father did, with the help of the ACLU and CCR, on behalf of his son — then the Obama DOJ will insist that the reasons for the assassination are “state secrets” and cannot be judicially examined, and independently, that such matters are for the President alone to decide and courts thus have no role to play in interfering with such decisions (see POINT II). American courts, largely deferential to claims of presidential secrecy and authority in the post-9/11 era, almost reflexively accept such claims. In other words, if a targeted American tries to assert these due process rights, the Obama administration will go into court and take exactly the opposite position of the one Panetta is claiming here: namely, that the person has no rights to have a court interfere in the President’s assassination order.

So for so many reasons, Panetta’s claim is utterly false: American citizens secretely targeted by President Obama for execution have no means of obtaining due process even in the unlikely case that they learn they have been so targeted. And this is all independent of Panetta’s warped notion that an American has to be on U.S. soil to claim constitutional protections, a wholesale rejection of well-settled Constitutional law that Americans have the right to travel abroad and, when they do, they retain their Constitutional rights against the U.S. government even when on foreign soil. As the Supreme Court put it in 1956, specifically discussing the requirement that a citizen be given a trial before punishment can be doled out (emphasis added):

At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution.  Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government.

But the final point is the most important and revealing of all: Panetta’s whole case rests on simply asserting, without proving, that Awlaki was a Terrorist trying to “kill Americans.” That, of course, is precisely what is in dispute: actual Yemen experts have long questioned whether Awlaki had any operational role at all in Al Qaeda (as opposed to a role as its advocate, which is clearly protected free speech). No evidence has been publicly presented that Awlaki had any such role. We simply have the untested, unverified accusations of government officials, such as Leon Panetta, that he is guilty: in other words, we have nothing but decrees of guilt. The U.S. Constitution, first and foremost, was designed to prohibit the doling out of punishments based on government accusations untested and unproven in a court of law; for those who doubt that, just read the relevant provisions (“No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court“; “No person shall be deprived of life, liberty, or property, without due process of law”).

But as I wrote the other day, “the U.S. really is a society that simply no longer believes in due process: once the defining feature of American freedom that is now scorned as some sort of fringe, radical, academic doctrine.” Instead:

Supporters of both political parties endorse, or at least tolerate, all manner of government punishment without so much as the pretense of a trial, based solely on government accusation: imprisonment for life, renditions to other countries, even assassinations of their fellow citizens. Simply uttering the word Terrorist, without proving it, is sufficient.

Here we have the U.S. Defense Secretary, life-long Democrat Leon Panetta, telling you as clearly as he can that this is exactly the operating premise of the administration in which he serves: once the President accuses you of being a Terrorist, a decision made in secert and with no checks or due process, we can do anything we want to you, including executing you wherever we find you. It’s hard to know what’s more extraordinary: that he feels so comfortable saying this right out in the open, or that so few people seem to mind.

* * * * *

ABC News‘ Jake Tapper pressed White House spokesman Jay Carney back in October about the evidence the administration possesses showing Awlaki’s guilt, and the same authoritarian decree issued: we have said he’s a Terrorist and that is all that is necessary.

Glenn Greenwald
Follow Glenn Greenwald on Twitter: @ggreenwald.More Glenn Greenwald

Western justice and transparency January 23, 2012

Posted by rogerhollander in Barack Obama, Criminal Justice, War on Terror.
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By Glenn Greenwald, www.salon.com

Anwar Awlaki and Barack Obama

Anwar Awlaki and Barack Obama   (Credit: AP)

On Saturday in Somalia, the U.S. fired missiles from a drone and killed the 27-year-old Lebanon-born, ex-British citizen Bilal el-Berjawi. His wife had given birth 24 hours earlier and the speculation is that the U.S. located him when his wife called to give him the news. Roughly one year ago, El-Berjawi was stripped of his British citizenship, obtained when his family moved to that country when he was an infant, through the use of a 2006 British anti-Terrorism law — passed after the London subway bombing — that the current government is using with increasing frequency to strip alleged Terrorists with dual nationality of their British citizenship (while providing no explanation for that act). El-Berjawi’s family vehemently denies that he is involved with Terrorism, but he was never able to appeal the decree against him for this reason:

Berjawi is understood to have sought to appeal against the order, but lawyers representing his family were unable to take instructions from him amid concerns that any telephone contact could precipitate a drone attack.

Obviously, those concerns were valid. So first the U.S. tries to assassinate people, then it causes legal rulings against them to be issued because the individuals, fearing for their life, are unable to defend themselves. Meanwhile, no explanation or evidence is provided for either the adverse government act or the assassination: it is simply secretly decreed and thus shall it be.

Exactly the same thing happened with U.S. citizen Anwar Awlaki. When the ACLU and CCR, representing Awlaki’s father, sued President Obama asking a federal court to enjoin the President from killing his American son without a trial, the Obama DOJ insisted (and the court ultimately accepted) that Awlaki himself must sue on his own behalf. Obviously, that was impossible given that the Obama administration was admittedly trying to kill him and surely would have done so the minute he stuck his head up to contact lawyers (indeed, the U.S. tried to kill him each time they thought they had located him, and then finally succeeded). So again in the Awlaki case: the U.S. targets someone for death, and then their inability to defend themselves is used as a weapon to deny their legal rights.

The refusal to provide transparency is also the same. Ever since Awlaki was assassinated, the Obama administration has steadfastly refused to disclose not only any evidence to justify the accusations of Terrorism against him, but also the legal theories it is using to assert the power to target U.S. citizens for death with no charges. A secret legal memo authorizing the Awlaki assassination, authored by Obama lawyers David Baron and Marty Lederman, remains secret. During the Bush years, Democratic lawyers vehemently decried the Bush DOJ’s refusal to release even OLC legal memoranda as tyrannical “secret law.” One of the lawyers most vocal during the Bush years about the evils of “secret law,” Dawn Johnsen (the never-confirmed Obama appointee to be chief of the OLC) told me back in October: “I absolutely do not support the concealment of OLC’s Awlaki memo . . . .The Obama administration should release either any existing OLC memo explaining why it believes it has the authority for the targeted killings or a comparably detailed legal analysis of its claimed authorities.”

A Daily Beast report today says that the Obama administration “is finally going to break its silence” on the Awlaki killing, but here’s what they will and will not disclose:

In the coming weeks, according to four participants in the debate, Attorney General Eric Holder Jr. is planning to make a major address on the administration’s national-security record. Embedded in the speech will be a carefully worded but firm defense of its right to target U.S. citizens. . . .

An early draft of Holder’s speech identified Awlaki by name, but in a concession to concerns from the intelligence community, all references to the al Qaeda leader were removed. As currently written, the speech makes no overt mention of the Awlaki operation, and reveals none of the intelligence the administration relied on in carrying out his killing.

In other words, they’re going to dispatch Eric Holder to assert that the U.S. Government has the power to target U.S. citizens for assassination by-CIA-drone, but will not even describe a single piece of evidence to justify the claim that Awlaki was guilty of anything. In fact, they will not even mention his name. As Marcy Wheeler said today:

This is simply an asinine compromise. We all know the Administration killed Awlaki. We all know the Administration used a drone strike to do so. . . .

The problem–the problem that strikes at the very heart of democratic accountability–is that the Administration plans to keep secret the details that would prove (or not) that Awlaki was what the Administration happily claims he is under the veil of anonymity, all while claiming that precisely that information is a state secret.

The Administration seems to be planning on making a big speech on counterterrorism–hey! it’s another opportunity to brag again about offing Osama bin Laden!–without revealing precisely those details necessary to distinguish this killing, and this country, from that of an unaccountable dictator.

The CIA seems to have dictated to our democratically elected President that he can’t provide the kind of transparency necessary to remain a democracy. We can kill you–they appear to be planning to say–and we’ll never have to prove that doing so was just. You’ll just have to trust us!

That, of course, is the heart and soul of this administration’s mentality when it comes to such matters, and why not? Between Republicans who always cheer on the killing of Muslims with or without any explanation or transparency, and Democrats who do so when their leader is the assassin, there is little political pressure to explain themselves. If anything, this planned “disclosure” makes the problem worse, since we will now have the spectacle of Eric Holder, wallowing in pomp and legal self-righteousness, finally defending the power that Obama already has seized — to assassinate U.S. citizens in secret and with no checks — but concealing what is most needed: evidence that Awlaki was what the U.S. Government claims he is. That simply serves to reinforce the message this Government repeatedly sends: as Marcy puts it, “We can kill you and we’ll never have to prove that doing so was just. You’ll just have to trust us!” The Yemen expert Gregory Johnsen added: “The US legal opinion on Awlaki is one thing, but it rests on assumptions made by the intelligence community, which won’t be revealed.”

This no longer seems radical to many — it has become normalized — because it’s been going on for so long now and, more important, it is now fully bipartisan consensus. But to see how extreme this all really is, to understand what a radical departure it is, just consider what George Bush’s neocon Ambassador to Israel, Martin Indyk, told the Israelis in 2001, as flagged by this Guardian Op-Ed by Mary Ellen O’Connell comparing Obama’s assassinations to Bush’s torture program:

The United States government is very clearly on the record as against targeted assassinations. They are extrajudicial killings, and we do not support that.

What George Bush’s Ambassador condemned to the Israelis’ face just a decade ago as something the nation was steadfastly against has now become a staple of government policy: aimed even at its own citizens, and carried out with complete secrecy. And those who spent years mocking the notion that “9/11 Changed Everything” will have no choice but to invoke that propagandistic mantra in order to defend this: what else is there to say?

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

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

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

(updated below)

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

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

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

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

* * * * *

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

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

Obama’s Unprecedented Use of State Secrets to Defend Religious Profiling September 8, 2011

Posted by rogerhollander in Civil Liberties, Criminal Justice, Racism, Religion, Uncategorized.
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Published on Thursday, September 8, 2011 by Colorlines

by Asraa Mustufa

In the summer of 2006, a French Syrian man known as Farouk al-Aziz publicly converted to Islam in front of a Friday prayer congregation at a large mosque in Irvine, Calif. Mosque leadership and attendants were quick to embrace al-Aziz as a new member of their faith. The Islamic center’s imam asked a congregant to teach al-Aziz how to pray, and he quickly became a regular attendee at the mosque in Irvine and others in Orange County.

Photo: Kevork Djansezian/Getty Images 

 However, community members soon became wary of al-Aziz. He would often sit in on groups, listening to other Muslim congregants’ conversations within the mosque, at family picnics or at a local gym. Most troubling to other attendees was his frequent, unusual questions about a violent form of jihad. Community members say when al-Aziz began implying that he was contemplating violent action, boasting he knew where to get weapons and trying to gather people in a plot, congregants quickly brought the issue to the attention of mosque leadership. They obtained a restraining order against him and reached out to the local chapter of the Council on American-Islamic Relations, which helped them report al-Aziz’s actions to the FBI.

As it turned out, the FBI was already well aware of al-Aziz’s activities at the mosque—they had in fact sent him there. He was one of thousands of informants the FBI has used since 9/11 to spy upon Muslim American communities and concoct terrorism plots inside them. The practice has drawn attention from news media and civil liberties advocates in recent years, and Muslim American community leaders are organizing to demand its end. But one huge, unexpected hurdle now stands in the way: The Obama administration’s invocation of a national security provision that makes it impossible for communities and individuals to protect their rights through lawsuits.

The provision, known as the state secrets privilege, permits the government to block discovery in a lawsuit of any information that, if disclosed, could adversely affect national security or foreign relations. President Obama vowed while campaigning that he’d end its use. Instead, his administration has not only continued invoking it, but has done so in a previously unprecedented way in order to protect legally questionable surveillance of Muslim American communities.

President Obama’s Privileged Secrets

Al-Aziz’s name was actually Craig Monteilh, and he was a paid informant working for the FBI. Monteilh, who was profiled in a Mother Jones investigation into the FBI’s spying program this month, had worked with the bureau for several years. He fell out with the FBI after he was convicted of grand theft in 2007 and his role as an informant was revealed in court documents. Monteilh filed suit against the FBI and went public about his activities as an informant—including that he was instructed to infiltrate southern Californian mosques and spy on worshippers.

Earlier this year, Muslim community advocates responded with a lawsuit of their own. In Fazaga v. FBI, the American Civil Liberties Union of Southern California and the Los Angeles chapter of CAIR allege that by indiscriminately surveilling several southern Californian mosques and collecting information on hundreds, perhaps thousands, of law-abiding American Muslims, the FBI violated their constitutional rights. In addition to Monteilh’s reports of the instructions he received from the FBI, attorneys on the case say that the numerous accounts of Muslim community members who came in contact with Monteilh, as well as some FBI guidelines themselves, all strongly indicate that the FBI’s targeting of mosques was based on religion alone, rather than on following leads or indications of unlawful activity.

Last month, the Obama administration invoked the state secrets privilege in an effort to have the suit dismissed. In the filing, Attorney General Eric Holder said that the Justice Department cannot allow the case to be litigated, because it would lead to the disclosure of sensitive information, which could in turn “reasonably be expected to cause harm to national security.”

The Bush administration infamously expanded the use of the state secrets doctrine, frequently invoking it to have entire lawsuits dismissed, rather than employing it to have individual pieces of evidence excluded from court, as it had been used in the past. As a candidate, President Obama criticized his predecessor’s repeated use of the privilege “to get cases thrown out of civil court.” Since taking office, however, Obama’s Justice Department has done the exact same thing.

The Obama administration has continued to assert the state secrets privilege in lawsuits still pending from the Bush years, on cases involving warrantless wiretapping, detention, torture and rendition of terrorism suspects at CIA black sites. And the administration has been successful in getting lawsuits dismissed on those grounds. The Obama Justice Department has also asserted the privilege in a lawsuit over the government’s right to target and kill suspected terrorists, including U.S. citizens, outside a war zone and absent an imminent threat to national security.

Both administrations’ use of the privilege to cover up questionable government behavior is not unprecedented. Indeed, in the landmark 1953 Supreme Court case United States v. Reynolds, the government invoked the state secrets privilege to circumvent the disclosure of an accident report in a wrongful death action involving the military. The court bought the government’s argument, but when the document was declassified in 2004, it was found to contain no sensitive information about national security whatsoever. Rather, it contained information proving government negligence.

The Obama administration’s invocation of the state secrets privilege, however, is unprecedented, transparency advocates assert. In previous and ongoing suits where the doctrine has been invoked, plaintiffs were seeking damages for a past violation of rights; the constitutional violations described in the Fazaga v. FBI are ongoing.

“The biggest difference is that here we have an ongoing constitutional violation against American citizens on American soil, and if courts can dismiss challenges to such ongoing violations on the grounds that…the program is secret, then that’s fundamentally inconsistent with very basic structural protections we have in our democratic function of government,” said Ahilan Arulanantham, deputy legal director of ACLU in southern California and a lead attorney on the case. “Our system virtually never allows the courthouse doors to be closed to an ongoing violation of the Constitution.”

Arulanantham also argues the government’s claim that sensitive national security information is at risk doesn’t hold up, given how widely reported Monteilh’s informant activities in “Operation Flex” have been. “There is nothing secret about the fact that the FBI was employing Craig Monteilh and that he surveiled hundreds or thousands of Muslims and gathered information on them.”

Since the lawsuit was filed, further evidence has emerged of similarly indiscriminate surveillance practices. When the northern California chapter of the ACLU and the Asian Law Caucus filed a Freedom of Information Act request about government surveillance of American Muslim communities, they obtained a PowerPoint presentation used by the FBI to train new recruits. The presentation included estimates of the number of mosques in America, and listed states with the largest Muslim populations. It also presented a troubling and simplistic depiction of Muslims and Arabs, and highlighted the work of career Islamophobe Robert Spencer in its recommended reading list.

NYPD Conducting Similar Surveillance

The FBI’s not the only agency snooping on Muslim Americans, though. Late last month, the Associated Press published an investigation on the New York Police Department’s covert surveillance of Muslims communities. The article, based on interviews with over 40 current and former NYPD and federal officials, detailed the aggressive practices of the agency’s domestic intelligence gathering operation. According to the AP’s findings, the NYPD, with much help from the CIA, used undercover officers to map and monitor Muslim-populated immigrant and black Muslim neighborhoods in and beyond the city, and dispatched informants to monitor sermons delivered at mosques and Muslim student groups, without any prior indication of unlawful behavior. The revelations came as little surprise to Muslim civil liberties groups, as such activities by the NYPD have long been widely reported by community members and documented by advocates, as well as by official testimony.

“There was already a picture being painted of the way this program was playing out in local communities. What we didn’t know and was the most troubling about the report was how deep and how normalized this program has become,” said Cyrus McGoldrick, civil rights manager at the New York chapter of CAIR.

Earlier this year, the Village Voice found that the NYPD had also screened the anti-Islamic hate film “The Third Jihad”—which describes Islam as a threat to the U.S. and was made by the Clarion Fund—at a mandatory counter-terrorism course for officers.

McGoldrick said civil liberties advocates are demanding a federal investigation of the CIA’s involvement as well as investigations by local officials. The NYPD maintains that the CIA’s role in the surveillance is merely advisory.

Community organizations are also trying to equip Muslim Americans with resources to protect themselves from the police department’s profiling. The group Desis Rising Up & Moving (DRUM), which works with low-income South Asian and Muslim immigrants in New York City, is planning a citywide survey to collect information on law enforcement interactions with the Muslim community.

Meanwhile, advocates warn that the all of this surveillance has created a sense of mistrust within communities. “People don’t speak freely anymore, people don’t feel comfortable engaging in candid conversations,” said Ameena Mirza Qazi, deputy executive director of CAIR’s L.A. chapter and an attorney for the plaintiff in the Fazaga lawsuit.

“The mosque is a building, but it’s about the community,” Qazi said. “To have the government come and disrupt that, that’s a very clear violation of our First Amendment freedom to practice our religion as we wish.”

A Wrong Headed Approach?

Aside from being predatory and potentially illegal, unwarranted surveillance is self-defeating, Muslim leaders say.

“This isn’t a program that makes us safer. This is a program that is investigating communities and not crimes,” McGoldrick said about the NYPD’s infiltration of Muslim communities via informants. “Instead of stopping crimes, they’re manufacturing crimes and they’re creating the images of crimes, and really just alienating an entire community that’s been nothing but supportive and has been at the lead of policing our own communities since 9/11 and before.”

Qazi had similar sentiments about how these revelations affect Muslim communities’ relationship with law enforcement. “If you’re treating us as suspects, how can we trust that you’ll treat us as partners?” she said, also pointing out that Muslims in southern California immediately alerted authorities when Monteilh began speaking about violent activity. “His role as an agent provocateur didn’t last very long because he was cut short by Muslim community members themselves.”

Yet, techniques like unwarranted surveillance, highly paid informants and questionable sting operations draw huge amounts of funding for the FBI and NYPD. According to Mother Jones, the FBI’s counter-terrorism budget stands at $3.3 billion, and as a whole, the agency spends more on hunting potential threats to national security than on chasing “ordinary criminals,” the New York Times recently found. The AP reports that the NYPD has received more than $1.6 billion from the federal government since 9/11, with little oversight from external authorities.

In counterterrorism, law enforcement relies heavily on informants, some recruited from Muslim communities under the pressure of threatened immigration troubles or past criminal infractions, as the targets of informants account for roughly half of defendants in domestic terror prosecutions to date, Mother Jones’ investigation found.  Some advocates question whether the agencies are more interested in using funds to produce terrorism arrests and convictions than on addressing an existing national security threat.

“There is incredible pressure on law enforcement to prevent attacks…if you are able to lead somebody into a plot, you then have a success. You have made a counter terrorism case, you made an arrest, and you will most likely get a conviction, and all of that plays into how funds are allocated and how different agencies are perceived,” said Faiza Patel, the co-director of the Liberty and National Security Program at the Brennan Center for Justice.

Patel has written widely on the theory of “radicalization” embraced by different law enforcement agencies (and some politicians), a main aspect of which includes an understanding that certain interpretations or expressions of Islam consistently lead to acts of violence. Such thinking is espoused in a 2007 report the NYPD published on homegrown terrorism, which listed signs of “radicalization” such as regular attendance at mosques, giving up cigarettes, drinking gambling, and the wearing of “urban hip-hop gangster clothes,” or wearing Islamic clothing, growing a beard and even becoming involved in social activism.

“If you think there’s this religious conveyer belt leading to terrorism, then you think it’s useful to see what people are saying and doing in their practice of religion, and that leads you into surveillance of mosques and bookstores and community centers,” Patel said.

The NYPD report might point to a more fundamental problem underlying law enforcement’s treatment of Muslim communities: The view of basic practices of the Islamic faith, including congregation, as indications of potential danger undermines the standing of American Muslims as a group deserving the same social protections as everybody else.

“Look, we’ve had a consensus I think in this country that racial profiling is wrong,” Patel said. “What we don’t somehow seem to have a consensus about is whether or not that rule applies to national security cases, and whether or not that rule applies to things such as religion or ethnicity.”

Asraa Mustufa is a regular contributor to Colorlines.com and a research intern at the Applied Research Center, which publishes Colorlines.

© 2011 Colorlines

The always-expanding bipartisan Surveillance State May 20, 2011

Posted by rogerhollander in Civil Liberties, Criminal Justice, Democracy.
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Friday, May 20, 2011 08:21 ET

When I wrote earlier this week about Jane Mayer’s New Yorker article on the Obama administration’s war on whistleblowers, the passage I hailed as “the single paragraph that best conveys the prime, enduring impact of the Obama presidency” included this observation from Yale Law Professor Jack Balkin:  “We are witnessing the bipartisan normalization and legitimization of a national-surveillance state.”  There are three events — all incredibly from the last 24 hours — which not only prove how true that is, but vividly highlight how it functions and why it is so odious.

First, consider what Democrats and Republicans just jointly did with regard to the Patriot Act, the very naming of which once sent progressives into spasms of vocal protest and which long served as the symbolic shorthand for Bush/Cheney post-9/11 radicalism:

Top congressional leaders agreed Thursday to a four-year extension of the anti-terrorist Patriot Act, the controversial law passed after the Sept. 11 attacks that governs the search for terrorists on American soil.

The deal between Senate Majority Leader Harry Reid and House Speaker John Boehner calls for a vote before May 27, when parts of the current act expire. The idea is to pass the extension with as little debate as possible to avoid a protracted and familiar argument over the expanded power the law gives to the government. . . .

From its inception, the law’s increased surveillance powers have been criticized by liberals and conservatives alike as infringements on free speech rights and protections against unwarranted searches and seizures.

Some Patriot Act opponents suggest that Osama bin Laden’s demise earlier this month should prompt Congress to reconsider the law, written when the terrorist leader was at the peak of his power. But the act’s supporters warn that al-Qaida splinter groups, scattered from Pakistan to the United States and beyond, may try to retaliate.

Now more than ever, we need access to the crucial authorities in the Patriot Act,” Attorney General Eric Holder told the Senate Judiciary Committee.

This will be the second time that the Democratic Congress — with the support of President Obama (who once pretended to favor reforms) — has extended the Patriot Act without any changes.  And note the rationale for why it was done in secret bipartisan meetings:  to ensure “as little debate as possible” and “to avoid a protracted and familiar argument over the expanded power the law gives to the government.”  Indeed, we wouldn’t want to have any messy, unpleasant democratic debates over “the expanded power the law gives to the government.”  Here we find yet again the central myth of our political culture:  that there is too little bipartisanship when the truth is there is little in Washington but that. And here we also find — yet again — that the killing of Osama bin Laden is being exploited to justify a continuation, rather than a reduction, in the powers of the National Security and Surveillance States.

Next we have a new proposal from the Obama White House to drastically expand the scope of “National Security Letters” — the once-controversial and long-abused creation of the Patriot Act that allows the FBI to obtain private records about American citizens without the need for a subpoena or any court approval — so that it now includes records of your Internet activities:

White House proposal would ease FBI access to records of Internet activity

The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history. . .

Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau’s authority. “It’ll be faster and easier to get the data,” said Baker, who practices national security and surveillance law. “And for some Internet providers, it’ll mean giving a lot more information to the FBI in response to an NSL.” . . .

To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is “incredibly bold, given the amount of electronic data the government is already getting,” said Michelle Richardson, American Civil Liberties Union legislative counsel.

The critics say its effect would be to greatly expand the amount and type of personal data the government can obtain without a court order. “You’re bringing a big category of data — records reflecting who someone is communicating with in the digital world, Web browsing history and potentially location information — outside of judicial review,” said Michael Sussmann, a Justice Department lawyer under President Bill Clinton who now represents Internet and other firms.

So first they conspire with the GOP to extend the Patriot Act without any reforms, then seek to expand its most controversial and invasive provisions to obtain the Internet activities of American citizens without having to bother with a subpoena or judicial approval — “they” being the Democratic White House.

Most critically, the government’s increased ability to learn more and more about the private activities of its citizens is accompanied — as always — by an ever-increasing wall of secrecy it erects around its own actions.  Thus, on the very same day that we have an extension of the Patriot Act and a proposal to increase the government’s Internet snooping powers, we have this:

The Justice Department should publicly release its legal opinion that allows the FBI to obtain telephone records of international calls made from the U.S. without any formal legal process, a watchdog group asserts.

The nonprofit Electronic Frontier Foundation alleges in a lawsuit filed Thursday that the Justice Department’s Office of Legal Counsel violated federal open-records laws by refusing to release the memo.

The suit was prompted in part by McClatchy’s reporting that highlighted the existence of the memo and the department’s refusal to release it. Earlier this year, McClatchy also requested a copy and was turned down.

The decision not to release the memo is noteworthy because the Obama administration — in particular the Office of Legal Counsel — has sought to portray itself as more open than the Bush administration was. By turning down the foundation’s request for a copy, the department is ensuring that its legal arguments in support of the FBI’s controversial and discredited efforts to obtain telephone records will be kept secret.

What’s extraordinary about the Obama DOJ’s refusal to release this document is that it does not reveal the eavesdropping activities of the Government but only its legal rationale for why it is ostensibly permitted to engage in those activities.  The Bush DOJ’s refusal to release its legal memos authorizing its surveillance and torture policies was unquestionably one of the acts that provoked the greatest outrage among Democratic lawyers and transparency advocates (see, for instance, Dawn Johnsen’s scathing condemnation of the Bush administration for its refusal to release OLC legal reasoning: “reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government.”

The way a republic is supposed to function is that there is transparency for those who wield public power and privacy for private citizens.  The National Security State has reversed that dynamic completely, so that the Government (comprised of the consortium of public agencies and their private-sector “partners”) knows virtually everything about what citizens do, but citizens know virtually nothing about what they do (which is why WikiLeaks specifically and whistleblowers generally, as one of the very few remaining instruments for subverting that wall of secrecy, are so threatening to them).  Fortified by always-growing secrecy weapons, everything they do is secret — including even the “laws” they secretly invent to authorize their actions  — while everything you do is open to inspection, surveillance and monitoring.

This dynamic threatens to entrench irreversible, absolute power for reasons that aren’t difficult to understand.  Knowledge is power, as the cliché teaches.  When powerful factions can gather unlimited information about citizens, they can threaten, punish, and ultimately deter any meaningful form of dissent:  J. Edgar Hoover infamously sought to drive Martin Luther King, Jr. to suicide by threatening to reveal King’s alleged adultery discovered by illicit surveillance; as I described earlier today in my post on New York’s new Attorney General, Eliot Spitzer was destroyed in the middle of challenging Wall Street as the result of a massive federal surveillance scheme that uncovered his prostitution activities.  It is the rare person indeed with nothing to hide, and allowing the National Security State faction unfettered, unregulated intrusive power into the private affairs of citizens — as we have been inexorably doing — is to vest them with truly awesome, unlimited power.

Conversely, allowing government officials to shield their own conduct from transparency and (with the radical Bush/Obama version of the “State Secrets privilege”) even judicial review ensures that National Security State officials (public and private) can do whatever they want without any detection and (therefore) without limit or accountability.  That is what the Surveillance State, at its core, is designed to achieve: the destruction of privacy for individual citizens and an impenetrable wall of secrecy for those with unlimited surveillance power.  And as these three events just from the last 24 hours demonstrate, this system — with fully bipartisan support — is expanding more rapidly than ever.

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