FBI admits using surveillance drones to spy on Americans on US soil

Thom Hartmann, Truthout

You need to know this. As if the news of the NSA's phone and internet spying weren't enough to worry us, the FBI has just admitted to using surveillance drones to spy on Americans on US soil. During a Congressional hearing on telephone data collection, FBI director Robert Muller said the agency is in the "initial stages" of developing privacy guidelines, and has only used drones in a "very, very minimal way." However, Americans are skeptical of such a description after being told that sweeping data collection was only a "modest" invasion of our privacy. Democratic Senator Mark Udall, said he is "concerned the FBI is deploying drone technology while only being in the 'initial stages' of developing guidelines to protect Americans' privacy rights." Senator Udall explained that he understands drones have the potential to "more efficiently and effectively perform law enforcement duties," but promised to do everything in his power "to hold the FBI accountable and ensure its actions respect the US constitution." In keeping with the defense of NSA spying, Director Muller urged Congress to consider national security before placing any limits on drone surveillance and data collection. He said, "Are you going to take the dots off the table, make it unavailable to you when you're trying to prevent the next terrorist attack?" Our nation is at a crossroads in deciding how much privacy we are willing to give up in the name of security. As Benjamin Franklin said, "those who would give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."

Obama Administration Says President Can Use Lethal Force Against Americans on US Soil

Mother Jones  By Adam Serwer  | Tue Mar. 5, 2013

Yes, the president does have the authority to use military force against American citizens on US soil—but only in "an extraordinary circumstance," Attorney General Eric Holder said in a letter to Sen. Rand Paul (R-Ky.) on Tuesday.

"The US Attorney General's refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening," Paul said Tuesday. "It is an affront the constitutional due process rights of all Americans."

Last month, Paul threatened to filibuster the nomination of John Brennan, Obama's pick to head the CIA, "until he answers the question of whether or not the president can kill American citizens through the drone strike program on US soil." Tuesday, Brennan told Paul that "the agency I have been nominated to lead does not conduct lethal operations inside the United States—nor does it have any authority to do so." Brennan said that the Justice Department would answer Paul's question about whether Americans could be targeted for lethal strikes on US soil.

Holder's answer was more detailed, however, stating that under certain circumstances, the president would have the authority to order lethal attacks on American citizens. The two possible examples of such "extraordinary" circumstances were the attack on Pearl Harbor and the 9/11 terrorist attacks. An American president ordering the use of lethal military force inside the United States is "entirely hypothetical, unlikely to occur, and one we hope no president will ever have to confront," Holder wrote. Here's the bulk of the letter

As members of this administration have previously indicated, the US government has not carried out drone strikes in the United States and has no intention of doing so. As a policy matter moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat. We have a long history of using the criminal justice system to incapacitate individuals located in our country who pose a threat to the United States and its interests abroad. Hundreds of individuals have been arrested and convicted of terrorism-related offenses in our federal courts.

The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no president will ever have to confront. It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States. For example, the president could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances like a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.

The letter concludes, "were such an emergency to arise, I would examine the particular facts and circumstances before advising the president of the scope of his authority."

In a Google+ Hangout last month, President Obama refused to say directly if he had the authority to use lethal force against US citizens. As Mother Jones reported at the time, the reason the president was being so coy is that the answer was likely yes. Now we know that's exactly what was happening. "Any use of drone strikes or other premeditated lethal force inside the United States would raise grave legal and ethical concerns," says Raha Wala, an attorney with Human Rights First. "There should be equal concern about using force overseas."

Chilling Legal Memo From Obama DOJ Justifies Assassination of US Citizens

Tuesday, February 5, 2013 by The Guardian
The president's partisan lawyers purport to vest him with the most extreme power a political leader can seize
by Glenn Greenwald


The most extremist power any political leader can assert is the power to target his own citizens for execution without any charges or due process, far from any battlefield. The Obama administration has not only asserted exactly that power in theory, but has exercised it in practice. In September 2011, it killed US citizen Anwar Awlaki in a drone strike in Yemen, along with US citizen Samir Khan, and then, in circumstances that are still unexplained, two weeks later killed Awlaki's 16-year-old American son Abdulrahman with a separate drone strike in Yemen.

Since then, senior Obama officials including Attorney General Eric Holder and John Brennan, Obama's top terrorism adviser and his current nominee to lead the CIA, have explicitly argued that the president is and should be vested with this power. Meanwhile, a Washington Post article from October reported that the administration is formally institutionalizing this president's power to decide who dies under the Orwellian title "disposition matrix".

When the New York Times back in April, 2010 first confirmed the existence of Obama's hit list, it made clear just what an extremist power this is, noting: "It is extremely rare, if not unprecedented, for an American to be approved for targeted killing." The NYT quoted a Bush intelligence official as saying "he did not know of any American who was approved for targeted killing under the former president". When the existence of Obama's hit list was first reported several months earlier by the Washington Post's Dana Priest, she wrote that the "list includes three Americans".

What has made these actions all the more radical is the absolute secrecy with which Obama has draped all of this. Not only is the entire process carried out solely within the Executive branch - with no checks or oversight of any kind - but there is zero transparency and zero accountability. The president's underlings compile their proposed lists of who should be executed, and the president - at a charming weekly event dubbed by White House aides as "Terror Tuesday" - then chooses from "baseball cards" and decrees in total secrecy who should die. The power of accuser, prosecutor, judge, jury, and executioner are all consolidated in this one man, and those powers are exercised in the dark.

In fact, The Most Transparent Administration Ever™ has been so fixated on secrecy that they have refused even to disclose the legal memoranda prepared by Obama lawyers setting forth their legal rationale for why the president has this power. During the Bush years, when Bush refused to disclose the memoranda from his Office of Legal Counsel (OLC) that legally authorized torture, rendition, warrantless eavesdropping and the like, leading Democratic lawyers such as Dawn Johnsen (Obama's first choice to lead the OLC) vehemently denounced this practice as a grave threat, warning that "the Bush Administration's excessive reliance on 'secret law' threatens the effective functioning of American democracy" and "the withholding from Congress and the public of legal interpretations by the [OLC] upsets the system of checks and balances between the executive and legislative branches of government."

But when it comes to Obama's assassination power, this is exactly what his administration has done. It has repeatedly refused to disclose the principal legal memoranda prepared by Obama OLC lawyers that justified his kill list. It is, right now, vigorously resisting lawsuits from the New York Times and the ACLU to obtain that OLC memorandum. In sum, Obama not only claims he has the power to order US citizens killed with no transparency, but that even the documents explaining the legal rationale for this power are to be concealed. He's maintaining secret law on the most extremist power he can assert.

Last night, NBC News' Michael Isikoff released a 16-page "white paper" prepared by the Obama DOJ that purports to justify Obama's power to target even Americans for assassination without due process (the memo is embedded in full below). This is not the primary OLC memo justifying Obama's kill list - that is still concealed - but it appears to track the reasoning of that memo as anonymously described to the New York Times in October 2011.

This new memo is entitled: "Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of Al-Qa'ida or An Associated Force". It claims its conclusion is "reached with recognition of the extraordinary seriousness of a lethal operation by the United States against a US citizen". Yet it is every bit as chilling as the Bush OLC torture memos in how its clinical, legalistic tone completely sanitizes the radical and dangerous power it purports to authorize.

I've written many times at length about why the Obama assassination program is such an extreme and radical threat - see here for one of the most comprehensive discussions, with documentation of how completely all of this violates Obama and Holder's statements before obtaining power - and won't repeat those arguments here. Instead, there are numerous points that should be emphasized about the fundamentally misleading nature of this new memo:

1. Equating government accusations with guilt

The core distortion of the War on Terror under both Bush and Obama is the Orwellian practice of equating government accusations of terrorism with proof of guilt. One constantly hears US government defenders referring to "terrorists" when what they actually mean is: those accused by the government of terrorism. This entire memo is grounded in this deceit.

Time and again, it emphasizes that the authorized assassinations are carried out "against a senior operational leader of al-Qaida or its associated forces who poses an imminent threat of violent attack against the United States." Undoubtedly fearing that this document would one day be public, Obama lawyers made certain to incorporate this deceit into the title itself: "Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of al-Qaida or An Associated Force."

This ensures that huge numbers of citizens - those who spend little time thinking about such things and/or authoritarians who assume all government claims are true - will instinctively justify what is being done here on the ground that we must kill the Terrorists or joining al-Qaida means you should be killed. That's the "reasoning" process that has driven the War on Terror since it commenced: if the US government simply asserts without evidence or trial that someone is a terrorist, then they are assumed to be, and they can then be punished as such - with indefinite imprisonment or death.

But of course, when this memo refers to "a Senior Operational Leader of al-Qaida", what it actually means is this: someone whom the President - in total secrecy and with no due process - has accused of being that. Indeed, the memo itself makes this clear, as it baldly states that presidential assassinations are justified when "an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the US".

This is the crucial point: the memo isn't justifying the due-process-free execution of senior al-Qaida leaders who pose an imminent threat to the US. It is justifying the due-process-free execution of people secretly accused by the president and his underlings, with no due process, of being that. The distinction between (a) government accusations and (b) proof of guilt is central to every free society, by definition, yet this memo - and those who defend Obama's assassination power - willfully ignore it.

Those who justify all of this by arguing that Obama can and should kill al-Qaida leaders who are trying to kill Americans are engaged in supreme question-begging. Without any due process, transparency or oversight, there is no way to know who is a "senior al-Qaida leader" and who is posing an "imminent threat" to Americans. All that can be known is who Obama, in total secrecy, accuses of this.

(Indeed, membership in al-Qaida is not even required to be assassinated, as one can be a member of a group deemed to be an "associated force" of al-Qaida, whatever that might mean: a formulation so broad and ill-defined that, as Law Professor Kevin Jon Heller argues, it means the memo "authorizes the use of lethal force against individuals whose targeting is, without more, prohibited by international law".)

The definition of an extreme authoritarian is one who is willing blindly to assume that government accusations are true without any evidence presented or opportunity to contest those accusations. This memo - and the entire theory justifying Obama's kill list - centrally relies on this authoritarian conflation of government accusations and valid proof of guilt.

They are not the same and never have been. Political leaders who decree guilt in secret and with no oversight inevitably succumb to error and/or abuse of power. Such unchecked accusatory decrees are inherently untrustworthy (indeed, Yemen experts have vehemently contested the claim that Awlaki himself was a senior al-Qaida leader posing an imminent threat to the US). That's why due process is guaranteed in the Constitution and why judicial review of government accusations has been a staple of western justice since the Magna Carta: because leaders can't be trusted to decree guilt and punish citizens without evidence and an adversarial process. That is the age-old basic right on which this memo, and the Obama presidency, is waging war.

2. Creating a ceiling, not a floor

The most vital fact to note about this memorandum is that it is not purporting to impose requirements on the president's power to assassinate US citizens. When it concludes that the president has the authority to assassinate "a Senior Operational Leader of al-Qaida" who "poses an imminent threat of violent attack against the US" where capture is "infeasible", it is not concluding that assassinations are permissible only in those circumstances. To the contrary, the memo expressly makes clear that presidential assassinations may be permitted even when none of those circumstances prevail: "This paper does not attempt to determine the minimum requirements necessary to render such an operation lawful." Instead, as the last line of the memo states: "it concludes only that the stated conditions would be sufficient to make lawful a lethal operation" - not that such conditions are necessary to find these assassinations legal. The memo explicitly leaves open the possibility that presidential assassinations of US citizens may be permissible even when the target is not a senior al-Qaida leader posing an imminent threat and/or when capture is feasible.

Critically, the rationale of the memo - that the US is engaged in a global war against al-Qaida and "associated forces" - can be easily used to justify presidential assassinations of US citizens in circumstances far beyond the ones described in this memo. If you believe the president has the power to execute US citizens based on the accusation that the citizen has joined al-Qaida, what possible limiting principle can you cite as to why that shouldn't apply to a low-level al-Qaida member, including ones found in places where capture may be feasible (including US soil)? The purported limitations on this power set forth in this memo, aside from being incredibly vague, can be easily discarded once the central theory of presidential power is embraced.

3. Relies on the core Bush/Cheney theory of a global battlefield

The primary theory embraced by the Bush administration to justify its War on Terror policies was that the "battlefield" is no longer confined to identifiable geographical areas, but instead, the entire globe is now one big, unlimited "battlefield". That theory is both radical and dangerous because a president's powers are basically omnipotent on a "battlefield". There, state power is shielded from law, from courts, from constitutional guarantees, from all forms of accountability: anyone on a battlefield can be killed or imprisoned without charges. Thus, to posit the world as a battlefield is, by definition, to create an imperial, omnipotent presidency. That is the radical theory that unleashed all the rest of the controversial and lawless Bush/Cheney policies.

This "world-is-a-battlefield" theory was once highly controversial among Democrats. John Kerry famously denounced it when running for president, arguing instead that the effort against terrorism is "primarily an intelligence and law enforcement operation that requires cooperation around the world".

But this global-war theory is exactly what lies at heart of the Obama approach to Terrorism generally and this memo specifically. It is impossible to defend Obama's assassination powers without embracing it (which is why key Obama officials have consistently done so). That's because these assassinations are taking place in countries far from any war zone, such as Yemen and Somalia. You can't defend the application of "war powers" in these countries without embracing the once-very-controversial Bush/Cheney view that the whole is now a "battlefield" and the president's war powers thus exist without geographic limits.

This new memo makes clear that this Bush/Cheney worldview is at the heart of the Obama presidency. The president, it claims, "retains authority to use force against al-Qaida and associated forces outside the area of active hostilities". In other words: there are, subject to the entirely optional "feasibility of capture" element, no geographic limits to the president's authority to kill anyone he wants. This power applies not only to war zones, but everywhere in the world that he claims a member of al-Qaida is found. This memo embraces and institutionalizes the core Bush/Cheney theory that justified the entire panoply of policies Democrats back then pretended to find so objectionable.

4. Expanding the concept of "imminence" beyond recognition

The memo claims that the president's assassination power applies to a senior al-Qaida member who "poses an imminent threat of violent attack against the United States". That is designed to convince citizens to accept this power by leading them to believe it's similar to common and familiar domestic uses of lethal force on US soil: if, for instance, an armed criminal is in the process of robbing a bank or is about to shoot hostages, then the "imminence" of the threat he poses justifies the use of lethal force against him by the police.

But this rhetorical tactic is totally misleading. The memo is authorizing assassinations against citizens in circumstances far beyond this understanding of "imminence". Indeed, the memo expressly states that it is inventing "a broader concept of imminence" than is typically used in domestic law. Specifically, the president's assassination power "does not require that the US have clear evidence that a specific attack . . . will take place in the immediate future". The US routinely assassinates its targets not when they are engaged in or plotting attacks but when they are at home, with family members, riding in a car, at work, at funerals, rescuing other drone victims, etc.

Many of the early objections to this new memo have focused on this warped and incredibly broad definition of "imminence". The ACLU's Jameel Jaffer told Isikoff that the memo "redefines the word imminence in a way that deprives the word of its ordinary meaning". Law Professor Kevin Jon Heller called Jaffer's objection "an understatement", noting that the memo's understanding of "imminence" is "wildly overbroad" under international law.

Crucially, Heller points out what I noted above: once you accept the memo's reasoning - that the US is engaged in a global war, that the world is a battlefield, and the president has the power to assassinate any member of al-Qaida or associated forces - then there is no way coherent way to limit this power to places where capture is infeasible or to persons posing an "imminent" threat. The legal framework adopted by the memo means the president can kill anyone he claims is a member of al-Qaida regardless of where they are found or what they are doing.

The only reason to add these limitations of "imminence" and "feasibility of capture" is, as Heller said, purely political: to make the theories more politically palatable. But the definitions for these terms are so vague and broad that they provide no real limits on the president's assassination power. As the ACLU's Jaffer says: "This is a chilling document" because "it argues that the government has the right to carry out the extrajudicial killing of an American citizen" and the purported limits "are elastic and vaguely defined, and it's easy to see how they could be manipulated."

5. Converting Obama underlings into objective courts

This memo is not a judicial opinion. It was not written by anyone independent of the president. To the contrary, it was written by life-long partisan lackeys: lawyers whose careerist interests depend upon staying in the good graces of Obama and the Democrats, almost certainly Marty Lederman and David Barron. Treating this document as though it confers any authority on Obama is like treating the statements of one's lawyer as a judicial finding or jury verdict.

Indeed, recall the primary excuse used to shield Bush officials from prosecution for their crimes of torture and illegal eavesdropping: namely, they got Bush-appointed lawyers in the DOJ to say that their conduct was legal, and therefore, it should be treated as such. This tactic - getting partisan lawyers and underlings of the president to say that the president's conduct is legal - was appropriately treated with scorn when invoked by Bush officials to justify their radical programs. As Digby wrote about Bush officials who pointed to the OLC memos it got its lawyers to issue about torture and eavesdropping, such a practice amounts to:

"validating the idea that obscure Justice Department officials can be granted the authority to essentially immunize officials at all levels of the government, from the president down to the lowest field officer, by issuing a secret memo. This is a very important new development in western jurisprudence and one that surely requires more study and consideration. If Richard Nixon and Ronald Reagan had known about this, they could have saved themselves a lot of trouble."

Life-long Democratic Party lawyers are not going to oppose the terrorism policies of the president who appointed them. A president can always find underlings and political appointees to endorse whatever he wants to do. That's all this memo is: the by-product of obsequious lawyers telling their Party's leader that he is (of course) free to do exactly that which he wants to do, in exactly the same way that Bush got John Yoo to tell him that torture was not torture, and that even it if were, it was legal.

That's why courts, not the president's partisan lawyers, should be making these determinations. But when the ACLU tried to obtain a judicial determination as to whether Obama is actually authorized to assassinate US citizens, the Obama DOJ went to extreme lengths to block the court from ruling on that question. They didn't want independent judges to determine the law. They wanted their own lawyers to do so.

That's all this memo is: Obama-loyal appointees telling their leader that he has the authority to do what he wants. But in the warped world of US politics, this - secret memos from partisan lackeys - has replaced judicial review as the means to determine the legality of the president's conduct.

6. Making a mockery of "due process"

The core freedom most under attack by the War on Terror is the Fifth Amendment's guarantee of due process. It provides that "no person shall be . . . deprived of life . . . without due process of law". Like putting people in cages for life on island prisons with no trial, claiming that the president has the right to assassinate US citizens far from any battlefield without any charges or trial is the supreme evisceration of this right.

The memo pays lip service to the right it is destroying: "Under the traditional due process balancing analysis . . . . we recognize that there is no private interest more weighty than a person's interest in his life." But it nonetheless argues that a "balancing test" is necessary to determine the extent of the process that is due before the president can deprive someone of their life, and further argues that, as the New York Times put it when this theory was first unveiled: "while the Fifth Amendment's guarantee of due process applied, it could be satisfied by internal deliberations in the executive branch."

Stephen Colbert perfectly mocked this theory when Eric Holder first unveiled it to defend the president's assassination program. At the time, Holder actually said: "due process and judicial process are not one and the same." Colbert interpreted that claim as follows:

"Trial by jury, trial by fire, rock, paper scissors, who cares? Due process just means that there is a process that you do. The current process is apparently, first the president meets with his advisers and decides who he can kill. Then he kills them."

It is fitting indeed that the memo expressly embraces two core Bush/Cheney theories to justify this view of what "due process" requires. First, it cites the Bush DOJ's core view, as enunciated by John Yoo, that courts have no role to play in what the president does in the War on Terror because judicial review constitutes "judicial encroachment" on the "judgments by the President and his national security advisers as to when and how to use force". And then it cites the Bush DOJ's mostly successful arguments in the 2004 Hamdi case that the president has the authority even to imprison US citizens without trial provided that he accuses them of being a terrorist.

The reason this is so fitting is because, as I've detailed many times, it was these same early Bush/Cheney theories that made me want to begin writing about politics, all driven by my perception that the US government was becoming extremist and dangerous. During the early Bush years, the very idea that the US government asserted the power to imprison US citizens without charges and due process (or to eavesdrop on them) was so radical that, at the time, I could hardly believe they were being asserted out in the open.

Yet here we are almost a full decade later. And we have the current president asserting the power not merely to imprison or eavesdrop on US citizens without charges or trial, but to order them executed - and to do so in total secrecy, with no checks or oversight. If you believe the president has the power to order US citizens executed far from any battlefield with no charges or trial, then it's truly hard to conceive of any asserted power you would find objectionable.

DOJ White Paper

Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Q... by

Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Q... by

Why Does the Government So Desperately Want Indefinite Detention for Terror Suspects?

Andy Worthington
uruknet.info

What is the government doing? Last year, when Congress passed the National Defense Authorization Act (NDAA), with its contentious passages endorsing the mandatory military detention of terror suspects, there was uproar across the political spectrum from Americans who believed that it would be used on US citizens.

In fact, it was unclear whether or not this was the case. The NDAA was in many ways a follow-up to the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, which authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

As confirmed by the Supreme Court in June 2004, in Hamdi v. Rumsfeld, the NDAA also allowed those seized — who were allegedly involved with al-Qaeda and/or the Taliban — to be held until the end of hostilities. The AUMF was, and remains the basis for the detention of prisoners at Guantánamo, but on two occasions President Bush decided that it applied to US citizens — in the cases of Jose Padilla and Yaser Hamdi, who were held on US soil as "enemy combatants" and subjected to torture.

When challenged in court, however, President Bush never attempted to defend holding US citizens without charge or trial, transferring Padilla to the federal court system, and sending Hamdi back to Saudi Arabia, where he had lived for many years before his capture in Afghanistan and his initial transfer to Guantánamo. In the case of the legal US resident Ali al-Marri, a third man held as an "enemy combatant" on the US mainland, and also subjected to torture, President Bush avoided making a decision about him, and it was left to President Obama, who transferred him into the federal court system soon after taking office in January 2009.

If the muddled nature of these precedents made it difficult to establish whether or not the new legislation applied to US citizens as well as foreigners, the changes in wording from the AUMF were also inconclusive. Section 1021 was similar to the AUMF in that it applies to anyone "who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks," but it also expanded the AUMF’s remit, stating explicitly that the military custody provisions also apply to anyone "who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."

The problem, as anyone capable of looking at the legislation objectively has realized, is that the "associated forces" included with al-Qaeda and the Taliban are not defined, and could, therefore, be applied to anyone regarded as a threat, who could, however tangentially, be claimed to be associated with al-Qaeda and/or the Taliban. As the New York Times explained last week, the NDAA’s enactment "was controversial in part because lawmakers did not specify what conduct could lead to someone’s being detained, and because it was silent about whether the statute extended to American citizens and others arrested on United States soil."

When President Obama signed the NDAA into law on December 31 last year, he tried to allay fears about the military detention provisions. He claimed that Section 1021 "breaks no new ground and is unnecessary," because "[t]he authority it describes was included in the 2001 AUMF [the Authorization for Use of Military Force], as recognized by the Supreme Court and confirmed through lower court decisions since then."

He also sought to reassure those who feared that the provisions might be applied to US citizens, stating, "I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation."

However, after the President signed the NDAA into law, a number of journalists and activists decided to test whether or not he was being truthful, as they feared that the NDAA’s military custody provisions were, in fact, far more sweeping than the AUMF, and that  "associated forces" could include Americans, and could include journalists and activists. The lead plaintiff was the journalist Chris Hedges, and others included Noam Chomsky, Daniel Ellsberg, the Icelandic parliamentarian and WikiLeaks activist Birgitta Jónsdóttir, Kai Wargalla, one of the founders of Occupy London, and the US journalists and activists Tangerine Bolen and Alexa O’Brien.

In May, as I explained here, Hedges and co. won a resounding victory, when, in the District Court in New York, Judge Katherine Forrest struck down, through an injunction, Section 1021 of the NDAA, agreeing with the plaintiffs that it was "constitutionally infirm, violating both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution."

Judge Forrest’s actions were not permanent. Technically, as she explained in her ruling, she "preliminarily enjoin[ed] enforcement of §1021 pending further proceedings in this Court or remedial action by Congress mooting the need for such further proceedings," and those further proceedings led, last week, to another landmark ruling, when, responding to further submissions by both parties over the last four months, she again sided with the plaintiffs, issuing a permanent injunction on Section 1021 of the NDAA, and explaining why:

The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention — potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity — and that specificity is absent from §1021(b)(2). [the key passage that includes "associated forces"].

And yet, despite President Obama’s supposedly soothing statements in December, the administration responded to Judge Forrest’s ruling with hysteria, issuing an emergency appeal, and arguing that her injunction "threatens irreparable harm to national security and the public interest by injecting added burdens and dangerous confusion into the conduct of military operations abroad during an active armed conflict."

On Monday — on the 225th anniversary of the signing of the final draft of the US Constitution — Judge Raymond Lohier of the Second Circuit Court of Appeals temporarily stayed Judge Forrest’s injunction, in a brief, one-page ruling, a move that, as the New American noted, "effectively repealed many of that document’s fundamental protections of individual liberties."
So why the urgency? As Chris Hedges asked on Monday, "If the administration is this anxious to restore this section of the NDAA, is it because the Obama government has already used it? Or does it have plans to use the section in the immediate future?"

A plausible explanation was provided by one of the lawyers in the case, co-lead counsel Bruce Arfan, who stated, "A Department of Homeland Security bulletin was issued Friday claiming that the riots [in the Middle East] are likely to come to the US and saying that DHS is looking for the Islamic leaders of these likely riots. It is my view that this is why the government wants to reopen the NDAA — so it has a tool to round up would-be Islamic protesters before they can launch any protest, violent or otherwise. Right now there are no legal tools to arrest would-be protesters. The NDAA would give the government such power. Since the request to vacate the injunction only comes about on the day of the riots, and following the DHS bulletin, it seems to me that the two are connected. The government wants to reopen the NDAA injunction so that they can use it to block protests."

Bruce Arfan may be right, and it may be that the current unrest — blamed on an anti-Islamic film, but more honestly to do with the ongoing injustice of US foreign policy, and Obama’s extensive use of drones — has shaken the administration to such an extent that they fear reprisals in the US, and want to be prepared.

That does not explain why the administration has been fighting Judge Forrest for many months, although it does explain why reports from the plaintiffs suggest a recent spike in the level of the government’s hysteria. Unfortunately for the administration, though, the detention policies at Guantánamo that these provisions echo have, from the beginning, been a dangerous aberration. The Geneva Conventions and US criminal statutes still provide all the tools necessary to detain people regarded as dangerous.

If the administration has other views regarding military detention without charge or trial — such as finding an excuse to hold people indefinitely on suspicion of what they might do — senior officials need to stop before they start down this road. Men are dying at Guantánamo after ten years against whom no actual evidence of wrongdoing exists, and this and all the other ruinous lawlessness that was implemented by the Bush administration does not, in the end, make Americans safer. Obama once claimed to know that the kind of injustices enshrined at Guantánamo only serve to recruits enemies for America. Revisiting those injustices through the NDAA — if that is what the administration has in mind — is not the answer, and should be avoided at all costs.

Indefinite Detention Ban Stayed By Appeals Judge In NDAA Case

Michael McAuliff - Huffington Post - 09-19-2012

 

WASHINGTON -- A federal appeals judge gave the Obama administration the OK to keep enforcing its indefinite detention policy Tuesday, issuing a temporary stay of a ruling that had found the practice unconstitutional.

The stay, issued by Judge Raymond Lohier of the U.S. Court of Appeals for the 2nd Circuit, lasts until Sept. 28, when a three-judge appellate panel will hear the case.

U.S. District Judge Katherine Forrest, who sits in the Southern District of New York, had ruled against the administration last week, issuing a permanent injunction against section 1021 of the National Defense Authorization Act of 2012 on the grounds that it violates the First and Fifth Amendments.

Forrest also denied a stay request, rebuffing the argument of federal lawyers that stopping enforcement of the law does "irreparable harm" to the government.

The law allows the executive branch to hold without trial any person, including Americans, "who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces."
President Barack Obama issued a statement when he signed the National Defense Authorization Act saying he would not hold people without trial and later issued regulations that bar the practice. Yet his Justice Department has vigorously defended the law, filing immediate appeals after each loss in Forrest's court.

Obama and the federal government were sued by a group of activists and journalists, including former New York Times writer Chris Hedges, academic Noam Chomsky and activist reporter Tangerine Bolen.


Forrest ruled that the law is so vague that simply by doing their usual work, the plaintiffs could conceivably be deemed to "substantially support" an "associated force" of the Taliban or al Qaeda, and thereby fall under the law's sway.

NSA whistleblower: They’re assembling information on every U.S. citizen

By Muriel Kane - RAW Story
Friday, July 13, 2012

NSA whistleblower William Binney was interviewed by internet journalist Geoff Shively at the HOPE Number 9 hackers conference in New York on Friday.

Binney, who resigned from the NSA in 2001 over its domestic surveillance program, had just delivered a keynote speech in which he revealed what Shively called “evidence which we have not seen until this point.”

“They’re pulling together all the data about virtually every U.S. citizen in the country … and assembling that information,” Binney explained. “So government is accumulating that kind of information about every individual person and it’s a very dangerous process.” He estimated that something like 1.6 billion logs have been processed since 2001.

Shively and livestreamer Tim Pool, who was filming the interview, concluded by noting that videos of Binney’s keynote address will be available shortly.

This video was uploaded to Youtube by Timcasts on July 13, 2012.

American Grafitti...

About the NDAA? Read this and tell us we have nothing to fear

March 23, 2012, Beaufort Observer

A recently published article about the National Defense Authorization Act (NDAA) stirred up a ruckus, all the way to Sen. Richard Burr's office. Our contention was that several provisions in the NDAA are unconstitutional. We contended that the sections 1021, 1022 and 1031 provided for the indefinite detention of American citizens without benefit of a judicial hearing (Habeas corpus) and other constitutional rights.

Sen. Burr's office responded to a query from us about why he voted for the NDAA by saying that the sections did not apply to American citizens and would be applicable only to terrorists associated with Al Qaeda.

The problem we had with that position was that if it were true then those sections should have been pulled out of the omnibus appropriation authorizations bill and debated on their own merit. Attempts to clarify the wording that would have guaranteed what Sen. Burr's staff said were defeated.

In short we viewed, and still do, the NDAA as an extension of the most objectionable elements of the Patriot Act which was passed shortly after 9-11. We have watched the gradual expansion of the original intent of the Patriot Act and see the NDAA as a continuation of that erosion of our constitutional rights as Americans.

We've taken some flak from some who argue that terrorists do not deserve constitutional protections. We agree with that.

But the problem is defining what a terrorist is, in contrast with American citizens who are not involved in terrorist activities. The problem is the old "camel's nose under the tent" problem. Give them an inch and they'll take a mile. To be confident that "fighting terrorism" is not used as a subterfuge to violate American citizen's right requires us to trust that the terrorist fighters will not violate American's rights.

Now we have yet another example of why we don't trust our government to honor our constitution and the rights it guarantees all American citizens.

Myway.com last week published an article by Eileen Sullivan that described how the National Counterterrorism Center announced that it is changing its policy of storing information that it collects on law-abiding American citizens without search warrants.

So what's the big deal you may ask. It is the creeping expansion of government violation of our constitutional rights. Here's how.

The Fourth Amendment provides that the government must obtain a search warrant to eavesdrop on Americans. To get the search warrant the law enforcement official must get a search warrant from a judicial official, and to do that, they must show probable cause to believe the target has or is committing a crime.

But shortly after 9-11 the law was changed to allow the government to eaves drop on millions of Americans who have never done anything to cause anyone to believe they are engaged in terrorist activity. The compromise that was worked out was that the government would collect the information but if it then failed to find evidence that someone was engaged in a terrorist threat the information would be destroyed, typically within a matter of 90 days or so.

Now they have decided they will keep the information for up to five years.
What kind of information? Virtually all kinds of electronic communications, such as emails, phone conversations, phone records (incoming and outgoing phone call records, and the GPS location of your cell phone) and even what websites we visit as well as what we post on social networking sites such as Facebook.

Then we learned last week that many new TV sets will have cameras in them, much like webcams on PC, that will have the capability of transmitting what the camera sees back to some computer somewhere, with the video being capable of being intercepted in the network. And as we have previously published, the "smart meters" some electric companies are installing will create networks capable of being monitored by the government. And no doubt, more sophisticated, and thus more intrusive, gadgets are already in the pipeline that will allow us to be spied upon.

Trust the spies that they will never abuse these powers? Nope. Not going to happen with us. We would rather take our chances with the terrorists.

Congress considers repeal of indefinite detention and torture

Published: 09 March, 2012, RT

Barely two months after President Obama authorized the indefinite detention of Americans, two members of US Congress are asking fellow lawmakers to approve a bill that will repeal a controversial provision of the NDAA.

US President Barack Obama inked the National Defense Authorization Act on New Year’s Eve, essentially allowing the American Armed Forces to indefinitely detain any suspected terrorist, including Americans, without ever bringing them to trial. Though President Obama has spoken out against the act — the very same one he signed — the legislation is currently in effect and allows the US government to grossly strip away rights otherwise guaranteed by the country’s Constitution.

The federal government has already gone to the NDAA to support the continued detention of alleged foreign terrorists, but two members of Congress, Rep. Adam Smith of Washington and Sen. Mark Udall of Colorado, are asking other lawmakers in the House and Senate to sign their name on a bill that will make sure anyone — American or not — will be given a fair trial.

"The goal here is to have clarity, first of all, on how these people are handled in the US, and second of all, to reassert the primacy and the importance of our civil justice system," Smith says of the proposed bill. "It is our contention that our civil justice system absolutely protects us from the threat in this case."

In addition to holding a position within the US House of Representatives, Congressman Smith is also the ranking member of the House Armed Services Committee. Both him and Senator Udall proposed their own solutions to the detainment provisions before Congress on Thursday this week.

Although he signed the NDAA into law, President Obama has opposed the own legislation that his administration helped create. Since being authorized last year though, some lawmakers have proposed solutions of their own even before Smith and Udall offered their alternative. Elected officials in the states of Virginia, Washington and Utah have already drafted legislation of their own that reverses the indefinite detention provision, Section 1021 of the NDAA, in their own state. Additionally, Texas congressman and presidential hopeful Ron Paul has offered a bill on his own that would negate the controversial conditions within the act. As none of these laws have yet to be approved, though, Smith and Udall hope that the federal government will give in to increased pressure and pull the plug on their own provision.

"More than 10 years later, one thing has become absolutely clear: our criminal justice system in the US is 100 percent adequate to take care of this problem," says Smith in discussing America’s post-9/11 courts. "But at the same time, on the books we have a law that gives the executive branch the power to indefinitely detain people here in the US, even US citizens. And we believe that we should take that off the books."

The Day 'Due Process' Died

Wednesday, March 7, 2012 by Huffington Post
Obama, Holder and the End of Rights
by Peter Van Buren

Historians of the future, if they are not imprisoned for saying so, will trace the end of America's democratic experiment to the fearful days immediately after 9/11, what Bruce Springsteen called the days of the empty sky, when frightened, small men named Bush and Cheney made the first decisions to abandon the Constitution in the name of freedom and created a new version of the security state with the Patriot Act, Guantanamo, secret prisons and sanctioned torture by the U.S. government. They proceeded carefully, making sure that lawyers in their employ sanctioned each dark act, much as kings in old Europe used the church to justify their own actions.

Those same historians will remark from exile on the irony that such horrendous policies were not only upheld by Obama, a Nobel Peace Prize winner and professor of Constitutional law, but added to until we came to the place we sadly occupy today: the Attorney General of the United States, Eric Holder, publicly stating that the American Government may murder one of its own citizens when it wishes to do so, and that the requirements of due process enshrined in the Constitution's Fifth Amendment, itself drawn from the Magna Carta that was the first reflowering of basic human rights since the Greeks, can be satisfied simply by a decision by that same president.

Yesterday will thus be remembered as the day we gave up. No more clever wordplay (enhanced interrogations, "patriot" act, targeted killing, kinetic operations) but a simple declaration that the U.S. government will kill its own citizens when it wishes to, via a secret process we, and our victims, are not allowed to know or contest.

Brevity in Our Freedom
Like most of the Bill of Rights, the Fifth Amendment to the Constitution is beautiful in its brevity and clarity. When you are saying something true, pure, clean and right, you often do not need many words: "... nor be deprived of life, liberty, or property, without due process of law."

There are no footnotes in the Fifth Amendment, no caveats, no secret memos, no exceptions for war, terrorism, mass rape, creation of concentration camps, acts of genocide, child torture or any evil. Those things are unnecessary, because in the beauty of what Lincoln offered to his audience as "a government of the people, by the people, for the people," the government would be made up of us, the purpose of government was to serve us, and the government would be beholden to us. Such a government would be incapable of killing its own citizens without care and debate and open trial.

With the excuse all tyrants proclaim, protecting the nation, on or about September 30, 2011 a U.S. drone fired a missile in Yemen and killed American Citizen Anwar al Awlaki, born in the United States and tragically devoted to al Qaeda. About a week later, the U.S. murdered al Awaki's 16 year old son. The U.S. had shot at the elder al Awlaki before, on May 7, 2011 under Obama's orders, and under the Bush administration. Before the U.S. government killed his son, attorneys for al Awlaki's father tried to persuade a U.S. District Court to issue an injunction preventing the government killing of al Awlaki. A judge dismissed the case, ruling the father did not have standing to sue. This was the first time in our nation's history that a father sought to sue to prevent the government from extra-legally killing his son. The judge in the case surrendered to his post-9/11 fear and wrote that it was up to the elected branches of government, not the courts, to determine whether the United States has the authority to murder its own citizens by decree.

Fear Shaped by Lies to Compel Compliance
In his speech, Attorney General Holder said things no honest man would ever believe would be said by the highest law officer in the United States.

So while the popular media remembers ... the day Rush apologized for calling someone a slut and Republican candidates ignored the wave of history to carp about birth control, historians will look back on March 5, 2012 as the day America gave up on its experiment with unalienable rights, rights that are natural, not given, rights independent of governments, what our Declaration explained to an unsure forming nation as "Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."

Holder said "that a careful and thorough executive branch review of the facts in a case amounts to 'due process' and that the Constitution's Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a 'judicial process.'"

Holder thus also declaimed that the victim also has no right to a defense, no right to speak on his behalf, no right to examine and refute the evidence against him and no right even to know his life will be taken under the decision of a few men in Washington. Indeed, Holder made clear that the government's decision to kill overshadowed the right to self-defense in saying "An individual's interest in making sure that the government does not target him erroneously could not be more significant. Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks."

Holder said he rejected any attempt to label such operations assassinations, invoking the same airbrush of lawfulness that fueled the Inquisition, the Salem Witch Trials and the Holocaust. "Assassinations are unlawful killings. The U.S. government's use of lethal force in self-defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful."

Sluts All
So while the popular media remembers yesterday as the day Rush apologized for calling someone a slut and Republican candidates ignored the wave of history to carp about birth control, historians will look back on March 5, 2012 as the day America gave up on its experiment with unalienable rights, rights that are natural, not given, rights independent of governments, what our Declaration explained to an unsure forming nation as "Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."

And that is the saddest part of a very sad day: the majority of Americans -- the consent of the governed -- seemingly do not care what Holder said, and are even now bleating on internet forums and likely in comments below to this article about the need to kill more terrorists, adding terrified, empty justifications to Holder's clever Newspeak. 

We did not have our freedom taken from us, we gave it away.

The NDAA and the Militarization of America

Undermining Habeas Corpus

by CARL MIRRA


The National Defense Authorization Act of 2012 (NDAA) was passed by Congress and signed into law by the president on New Year’s Eve of 2011. Activists and other critics charge that the NDAA authorizes the indefinite military detention of U.S. citizens, but supporters counter that the law entails no new powers of detention for the federal government.

In a sense, both sides are right. Insofar as it affirms “existing law” as the basis for federal detention policy, the NDAA does not itself dramatically expand the government’s power to detain U.S. citizens indefinitely. The bad news, however, is the government has essentially already claimed this authority, and the NDAA will only provide more legal cover for the executive branch to further undermine habeas corpus.

Citizens Exempted?

Proponents of the NDAA argue that section 1021 (e) exempts U.S. citizens from indefinite detention. The relevant text reads:

Nothing in this section shall be construed to affect the existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

But critics, including former federal judges Abner Mikva, William Sessions, and John Gibbons, are equally vigorous in their disagreement. The NDAA, they write, “codifies methods such as indefinite detention without charge and mandatory military detention and make[s] them applicable to virtually anyone…including U.S. citizens.”

Senator Lindsey Graham is one of the few supporters of the NDAA to plainly admit that “the statement of authority to detain does apply to American citizens, and it designates the world as the battlefield, including the homeland.”

Indeed, section 1021 (e) was added after the voting down of an amendment by Senator Mark Udall (D-NM), which would have made it clear that Americans were not subject to detention. As many critics noted, Congress could have stated something to the effect that, “Nothing in this act shall be construed as authorizing the indefinite detention of U.S. citizens.” It did not. That a clear statement to protect U.S. citizens was defeated in favor of a contested one strongly suggests that the NDAA does not offer safeguards for citizens.

There was, in other words, an opportunity to clear up this mess, but instead Congress left the door open for the indefinite detention of citizens.

For this reason, President Obama expressed “serious reservations” regarding the NDAA. He assured Americans in a signing statement that “my administration will interpret section 1021” in a way that “complies with the Constitution.” However, the president did not say that NDAA protects American citizens, but only that he will “interpret” it as such. As the noted law professor Jonathan Turley explains, the president does not deny that he has the authority to detain citizens – only that he will not exercise it.

“Existing Law”

Even the president, then, admits that the “existing law” provision in 1021 (e) is subject to interpretation, rendering it vague to the point of being meaningless. Existing law is, at best, under dispute with respect to the detention of U.S. citizens. The president has, after all, already asserted his authority not only to detain citizens without trial, but to assassinate them as well.

Senator Carl Levin (D-MI), who drafted the NDAA, disclosed in a floor statement that the “existing law” clause in section 1021 (e) fails to insulate citizens from detention without charge. “It makes clear what we have been saying,” he said, that the bill does “not affect existing law relative to the right of the executive branch to capture and detain a citizen …We think the law is clear in Hamdi that there is no bar to this nation holding one of its own citizens as an enemy combatant.”

Levin is referring to Hamdi v. Rumsfeld, a 2004 Supreme Court ruling that found there is “no bar” to indefinite detention of U.S. citizens as long as they are granted some limited habeas rights. Levin is arguing that it is the Supreme Court’s interpretation of “existing law,” not the NDAA’s, that permits indefinite detention.

It would be more accurate to say that although the Supreme Court has yet to fully resolve this issue, the NDAA ensures that future detentions will face fewer obstacles in the Court. A Congressional Research Service study into the matter concludes that the “plurality” of Supreme Court decisions “affirm the President’s powers to detain ‘enemy combatants,’ including those who are U.S. citizens, as part of the necessary force authorized by Congress.”

Metastasizing the Problem

The executive branch has repeatedly asserted the authority under “existing law” to indefinitely detain prisoners. Consider the Obama administration’s assertion in its March 2009 Guantanamo Bay Detainee Litigation filing. It unequivocally maintains that “under the AUMF [Authorization for the Use of Military Force], the President has the authority to detain persons…that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11.”

This authority was nothing new as it follows the AUMF. What was new, however, was the administration’s insistence that “The President also has the authority to detain persons who were part of, or substantially supported Taliban or al-Qaida forces or associated forces.”

Had the administration limited that definition to the Guantanamo cases as originally stated, the matter would have at least been somewhat contained. But Congress has now appropriated this language as the “definitional framework” for covered persons in NDAA section 1021. It states:

b) COVERED PERSONS – a covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for the attack.
(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act…

Of special concern is the administration’s contention that “it is not possible” to define the “precise nature and degree of substantial support, or the precise characteristics of associated forces.” Since these undefined categories are now, verbatim, part of the NDAA, it opens the door for the indefinite detention of a category of people the government is unable to define.

To suggest that these undefined categories cannot be applied to U.S. citizens is at best naïve.

Consider the case of Ali Saleh Kahlah al-Marri, a legal resident alien who was arrested in Illinois in 2001. Two administrations claimed the authority to indefinitely detain al-Marri without charge. Al-Marri did not see a judge for eight years, and did so only after a challenge against the president’s assertion of unchecked authority by the Brennan Center for Justice at New York University. As a result of intense pressure and to avoid any possibility that the Supreme Court would rule against it, the government allowed Al-Marri to be tried in a civilian court.

The point here is that it took eight years of legal battles to simply get a trial, and the government ensured that “existing law” would not set any precedent to prevent indefinite detention. That is, the administration’s decision to allow Al-Marri to arrange a plea deal made certain that an earlier Fourth Circuit ruling that “empower[s] the President to detain [Al-Marri] as an enemy combatant” would not be overturned. Thus, this case leaves the executive power to detain unchallenged.

The Congressional Research Service provides additional examples of how the government employs “existing law” to uphold the detention of U.S. citizens without charge. Examples include the Supreme Court cases of Ex Parte Quirin and In Re Territo, which similarly sustain the indefinite detention of citizens (and non-citizens).

Undermining Habeas

Of course, one can cite recent cases that uphold habeas rights for detainees. But in each case, Congress and the executive countered with provisions to undermine those decisions, a pattern that will be continued with the passage of the NDAA.

In 2004’s Rasul v. Bush, for example, the Court ruled in favor of habeas. In response, Congress passed the Detainee Treatment Act of 2005, which eroded many of the protections nominally provided under Rasul. Something similar occurred in Hamdan v. Rumsfeld in 2006, when the Court supported the right of detainees to be heard by a neutral commission.

Congress subsequently passed the Military Commissions Act (MCA) of 2006, which denied detainees the opportunity to challenge their confinement.

The most salutary development occurred in 2008’s Boumediene v. Bush, which upheld detainees’ rights to habeas corpus. At minimum, the NDAA expressly threatens that ruling for non-citizens. Worse yet, the Court of Appeals for the District of Columbia has failed to approve a habeas filing for over a year and a half.

Consider Al Maqaleh v. Gates, a case in which the executive argued that the Boumediene ruling should be limited to Guantanamo suspects. In other words, it wished to deny basic constitutional guarantees to detainees outside that limited setting; notably, the United States has moved hundreds of detainees to the infamous Bagram facility in Afghanistan and is attempting to deny them due process. The appeals court, overturning a district court ruling, did indeed refuse habeas rights to these detainees. Even Boumediene, the most promising ruling protecting due process, is under challenge. As Yale Law Professor Owen Fissbemoans, “What is remarkable and disturbing is that today Obama denies habeas is available for the prisoners of Bagram, just as Bush denied it was available for the Guantanamo prisoners.”

We have already seen how Hamdi v. Rumsfeld permitted the indefinite detention of an American citizen, albeit with some qualification. But this case presents another difficulty. The Supreme Court ruled that the AUMF, affirmed and strengthened by the NDAA, overrules even the Non-Detention Act of 1971, which Hamdi’s defense evoked as protection against indefinite detention. On this matter, the Supreme Court is crystal clear:

The court expressed doubt as to Hamdi’s argument that §4001(a), which provides that [n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress, required express congressional authorization of detentions of this sort. But it held that, in any event, such authorization was found in the post-September 11 Authorization for Use of Military Force.

A well-intentioned bill currently under consideration in the House Committee on Foreign Affairs would repeal section 1021, but this is insufficient. The NDAA still specifically states, “Congress affirms the authority of the President…pursuant to the Authorization for the Use of Military Force.” To put this matter to rest once and for all, Congress should support the repeal of Section 1021 of the NDAA and strengthen the Non-Detention Act by passing the Due Process Guarantee Act, which is currently being considered by a Homeland Security subcommittee.

Of course, even this is inadequate, as the United States continues to detain scores of non-citizens improperly. Detainment without charge – of citizens and non-citizens alike – erodes centuries of once-strong democratic foundations. Congress must act immediately to end it.

Repulsive Democrat Hypocrisy

And this would be one of myriad reasons why I'm not a Democrat or Republican. I believe certain things that neither party supports, or if they SAY they do, they really don't, like shutting down Guantanamo. Obama has so many broken campaign promises, how can you trust him?--jef

WEDNESDAY, FEB 8, 2012 
BY GLENN GREENWALD - Salon.com

(updated below)

During the Bush years, Guantanamo was the core symbol of right-wing radicalism and what was back then referred to as the “assault on American values and the shredding of our Constitution”: so much so then when Barack Obama ran for President, he featured these issues not as a secondary but as a central plank in his campaign. But now that there is a Democrat in office presiding over Guantanamo and these other polices — rather than a big, bad, scary Republican — all of that has changed, as a new Washington Post/ABC News poll today demonstrates:

The sharpest edges of President Obama’s counterterrorism policy, including the use of drone aircraft to kill suspected terrorists abroad and keeping open the military prison at Guantanamo Bay, Cuba, have broad public support, including from the left wing of the Democratic Party.

A new Washington Post-ABC News poll shows that Obama, who campaigned on a pledge to close the brig at Guantanamo Bay and to change national security policies he criticized as inconsistent with U.S. law and values, has little to fear politically for failing to live up to all of those promises.

The survey shows that 70 percent of respondents approve of Obama’s decision to keep open the prison at Guantanamo Bay. . . . The poll shows that 53 percent of self-identified liberal Democrats — and 67 percent of moderate or conservative Democrats — support keeping Guantanamo Bay open, even though it emerged as a symbol of the post-Sept. 11 national security policies of George W. Bush, which many liberals bitterly opposed.

Repulsive Democrat hypocrisy extends far beyond the issue of Guantanamo. A core plank in the Democratic critique of the Bush/Cheney civil liberties assault was the notion that the President could do whatever he wants, in secret and with no checks, to anyone he accuses without trial of being a Terrorist – even including eavesdropping on their communications or detaining them without due process. But President Obama has not only done the same thing, but has gone much farther than mere eavesdropping or detention: he has asserted the power even to kill citizens without due process. As Bush’s own CIA and NSA chief Michael Hayden said this week about the Awlaki assassination: “We needed a court order to eavesdrop on him but we didn’t need a court order to kill him. Isn’t that something?” That is indeed “something,” as is the fact that Bush’s mere due-process-free eavesdropping on and detention of American citizens caused such liberal outrage, while Obama’s due-process-free execution of them has not.

Beyond that, Obama has used drones to kill Muslim children and innocent adults by the hundreds. He has refused to disclose his legal arguments for why he can do this or to justify the attacks in any way. He has even had rescuers and funeral mourners deliberately targeted. As Hayden said: ”Right now, there isn’t a government on the planet that agrees with our legal rationale for these operations, except for Afghanistan and maybe Israel.” But that is all perfectly fine with most American liberals now that their Party’s Leader is doing it:

Fully 77 percent of liberal Democrats endorse the use of drones, meaning that Obama is unlikely to suffer any political consequences as a result of his policy in this election year. Support for drone strikes against suspected terrorists stays high, dropping only somewhat when respondents are asked specifically about targeting American citizens living overseas, as was the case with Anwar al-Awlaki, the Yemeni American killed in September in a drone strike in northern Yemen.

The Post‘s Greg Sargent obtained the breakdown on these questions and wrote today:

The number of those who approve of the drone strikes drops nearly 20 percent when respondents are told that the targets are American citizens. But that 65 percent is still a very big number, given that these policies really should be controversial.

And get this: Depressingly, Democrats approve of the drone strikes on American citizens by 58-33, and even liberals approve of them, 55-35. Those numbers were provided to me by the Post polling team.

It’s hard to imagine that Dems and liberals would approve of such policies in quite these numbers if they had been authored by George W. Bush.

Indeed: is there even a single liberal pundit, blogger or commentator who would have defended George Bush and Dick Cheney if they (rather than Obama) had been secretly targeting American citizens for execution without due process, or slaughtering children, rescuers and funeral attendees with drones, or continuing indefinite detention even a full decade after 9/11? Please. How any of these people can even look in the mirror, behold the oozing, limitless intellectual dishonesty, and not want to smash what they see is truly mystifying to me.

One of the very first non-FISA posts I ever wrote that received substantial attention was this one from January, 2006, entitled “Do Bush Followers have an Ideology”? It examined the way in which the Bush-supporting Right was more like an “authoritarian cult” rather than a political movement because its adherents had no real, fixed political beliefs; instead, I argued, their only animating “principle” was loyalty to their leader, and they would support anything he did no matter how at odds it was with their prior ostensible beliefs. That post was linked to and praised by dozens and dozens of liberal blogs: can you believe what authoritarian followers these conservatives are?, they scoffed in unison. Here was the crux of my argument:

Whether one is a “liberal” — or, for that matter, a “conservative” — is now no longer a function of one’s actual political views, but is a function purely of one’s personal loyalty to George Bush. . . .

People who self-identify as “conservatives” and have always been considered to be conservatives become liberal heathens the moment they dissent, even on the most non-ideological grounds, from a Bush decree. That’s because “conservatism” is now a term used to describe personal loyalty to the leader (just as “liberal” is used to describe disloyalty to that leader), and no longer refers to a set of beliefs about government.

That “conservatism” has come to mean “loyalty to George Bush” is particularly ironic given how truly un-conservative the Administration is. . . .

And in that regard, people like Michelle Malkin, John Hinderaker, Jonah Goldberg and Hugh Hewitt are not conservatives. They are authoritarian cultists. Their allegiance is not to any principles of government but to strong authority through a single leader.

As this post demonstrates, long before Barack Obama achieved any significance on the political scene, I considered blind leader loyalty one of the worst toxins in our political culture: it’s the very antithesis of what a healthy political system requires (and what a healthy mind would produce). 

One of the reasons I’ve written so much about the complete reversal of progressives on these issues (from pretending to be horrified by them when done under Bush to tolerating them or even supporting them when done by Obama) is precisely because it’s so remarkable to see these authoritarian follower traits manifest so vibrantly in the very same political movement — sophisticated, independent-minded, reality-based progressives — that believes it is above that, and that only primitive conservatives are plagued by such follower-mindlessness.

The Democratic Party owes a sincere apology to George Bush, Dick Cheney and company for enthusiastically embracing many of the very Terrorism policies which caused them to hurl such vehement invective at the GOP for all those years. And progressives who support the views of the majority as expressed by this poll should never be listened to again the next time they want to pretend to oppose civilian slaughter and civil liberties assaults when perpetrated by the next Republican President (it should be noted that roughly 35% of liberals, a non-trivial amount, say they oppose these Obama policies).

One final point: I’ve often made the case that one of the most consequential aspects of the Obama legacy is that he has transformed what was once known as “right-wing shredding of the Constitution” into bipartisan consensus, and this is exactly what I mean. When one of the two major parties supports a certain policy and the other party pretends to oppose it — as happened with these radical War on Terror policies during the Bush years — then public opinion is divisive on the question, sharply split. But once the policy becomes the hallmark of both political parties, then public opinion becomes robust in support of it. That’s because people assume that if both political parties support a certain policy that it must be wise, and because policies that enjoy the status of bipartisan consensus are removed from the realm of mainstream challenge. That’s what Barack Obama has done to these Bush/Cheney policies: he has, as Jack Goldsmith predicted he would back in 2009, shielded and entrenched them as standard U.S. policy for at least a generation, and (by leading his supporters to embrace these policies as their own) has done so with far more success than any GOP President ever could have dreamed of achieving. (Exactly as they planned it when Obama became "their guy."--jef)

UPDATE: The Advocacy Center for Equality and Democracy documents how much public opinion has changed on these issues under (and as a result of) the Obama presidency: “under the leadership of a President who campaigned with the promise to close the facility, . . . support for the detention center may be at its highest level ever.”