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

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.

Rights Groups, Law Experts Reject Obama's 'Assassination' Program

Wednesday, March 7, 2012 by Common Dreams

Law experts, human rights groups, and advocates for civil liberties and international law are expressing outrage and concern just days after the Obama administration's chief prosecutor, Attorney General Eric Holder, publicly outlined and defended the US government's program to target and kill, without trial, individuals who it determines are affiliated with al Qaeda or deems a threat to national security.

Speaking to law students at Northwestern University on Monday, Holder said of the program:

Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack.

In that case, our government has the clear authority to defend the United States with lethal force.

Responding to the speech on Tuesday, legal scholar Jonathan Turley, wrote: 

"The choice of a law school was a curious place for discussion of authoritarian powers. Obama has replaced the constitutional protections afforded to citizens with a "trust me" pledge that Holder repeated."

In the days since, groups and individuals have responded with incredulous amazement. Though the program has been known about for some time, the public defense shocked many. Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, commented on the speech:

“While the speech is a gesture towards additional transparency, it is ultimately a defense of the government’s chillingly broad claimed authority to conduct targeted killings of civilians, including American citizens, far from any battlefield without judicial review or public scrutiny. Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact. Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.”

Inter Press Service reports today:

Although the Obama administration has stated publicly that its policy to assassinate U.S. citizens and foreign nationals allegedly involved with terrorist organizations does not fall outside of legal bounds, the actual decision-making process – how, when and under what circumstances – through which authority is granted remains classified.

The debate over targeted killings reignited in December 2011 when President Obama signed into law a bill that included language reaffirming the executive’s right “to use all necessary and appropriate force” in combating terrorism.

“We have had all of these arguments since 2010. They are inadequate,” Mary Ellen O’Connell, a professor at the University of Notre Dame who specialises in international dispute, told IPS.

“This is the global war on terror with a new name – the same global war on terror that President Obama dismissed on the campaign trail” in 2008, O’Connell added. “The U.S. has always had a policy against targeted killing for legal, moral and strategic reasons. None of these reasons have changed."

Former litigator and civil rights blogger, Glenn Greenwald, was scathing in his critique at Salon.com. However, due to his extensive previous critique of the assassination program itself, he saved most of his ire for the Democrats who have so blithely followed the lead of the President and his administration on the issue:

The willingness of Democrats to embrace and defend this power is especially reprehensible because of how completely, glaringly and obviously at odds it is with everything they loudly claimed to believe during the Bush years. Recall two of the most significant “scandals” of the Bush War on Terror: his asserted power merely to eavesdrop on and detain accused Terrorists without judicial review of any kind. Remember all that? Progressives endlessly accused Bush of Assaulting Our Values and “shredding the Constitution” simply because Bush officials wanted to listen in on and detain suspected Terrorists — not kill them, just eavesdrop on and detain them — without first going to a court and proving they did anything wrong. Yet here is a Democratic administration asserting not merely the right to surveil or detain citizens without charges or judicial review, but to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, with some righteous exceptions, the silence is deafening, or worse.

Turley echoes Greenwald's criticism of most Democrats and questions the limits of such vaguely worded executive authority:

The Obama administration continues to stonewall efforts to get it to acknowledge the existence of a memo authorizing the killing of Anwar al-Awlaki. Democrats previously demanded the "torture memos" of the Bush administration that revealed both poor legal analysis by Judge Jay Bybee and Professor John Yoo to justify torture. Now, however, Democrats are largely silent in the face of a president claiming the right to unilaterally kill citizens.

Holder became particularly cryptic in his assurance of caution in the use of this power, insisting that they will kill citizens only with "the consent of the nation involved or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States." What on earth does that mean?

Peter Van Buren, a former US diplomat, argued that Holder's defense of the program amounted to death of the Constitution's fifth amendment:

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.

IPS' report focused particularly on the implication for international laws:

Holder also argued that certain legal principles “do not forbid the use of stealth or technologically advanced weapons”, such as covert operations and unmanned aerial vehicles, or drones, used to kill militants and foreign nationals suspected of posing an “imminent threat” to U.S. national security.

But the use of such methods has set controversial precedents that may violate international law, Laura Pitter, a specialist on U.S. counterterrorism policy for Human Rights Watch, told IPS.

“The reason it’s important to comply with international law is that there are standards that all countries use when applying lethal force so that countries like Russia and China, when they have these technologies, all apply the same standards,” Pitter explained.

While the speech provided the clearest insight to date regarding the administration’s legal framework for assassinations of U.S. citizens, Holder avoided detailing the implications of such a policy for foreign nationals.

“[The speech] deals with what would be justified for a U.S. citizen,” said Pitter. The fact that it didn’t address non-citizens leaves “little basis for determining whether the U.S. is meeting its legal obligations when it conducts these operations in regard to non-citizens,” she added.

“Each targeted killing that occurs takes place in different circumstances, and all of it is secret because it’s being conducted by the CIA…We’ve called for a long time for them to be conducted under military authority, which has greater transparency,” Pitter added.

And Charles Pierce, writing at Esquire, highlights the predictable (and troubling) path that expansive and unchecked executive authority has followed since the George W. Bush presidency.

The criteria for when a president can unilaterally decide to kill somebody is completely full of holes, regardless of what the government's pet lawyers say. And this... 

"This is an indicator of our times," Holder said, "not a departure from our laws and our values." 

"...is a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo. This policy is a vast departure from our laws and an interplanetary probe away from our values. The president should not have this power because the Constitution, which was written by smarter people than, say, Benjamin Wittes, knew full and goddamn well why the president shouldn't have this power. If you give the president the power to kill without due process, or without demonstrable probable cause, he inevitably will do so. 

"And, as a lot of us asked during the Bush years, if you give this power to President George Bush, will you also give it to President Hillary Clinton and, if you give this power to President Barack Obama, will you also give it to President Rick Santorum?"

Inside the GOP's "Security Act"/Chamber of Commerce in Wonderland (2 articles)

Repealing Due Process, Declaring Permanent War
By MIKE WHITNEY

House Armed Services Committee Chairman Buck McKeon (R-CA) is pushing a bill through congress that will repeal due process and give the President nearly-unlimited powers to wage war wherever and whenever he chooses without congressional approval. Because the language in the so-called Detainee Security Act of 2011 is (intentionally?) vague, it's impossible to know at whom it is directed. Is the real focus on suspects captured by the military in the so-called War on Terror or civilians who oppose US foreign policy? It's hard to say. Here's an excerpt from an article in Talking Points Memo that mulls over that same question:

"The new language eschews references to September 11, and instead centers the authorization on "armed conflict with al-Qaeda, the Taliban and associated forces," though "associated forces" is not defined. It replaces the authority to target "organizations" and "persons" domestically with the power to target "all entities that continue to pose a threat to the United States and its citizens, both domestically and abroad." ("Congress Poised To Give President Power To Continue GWOT Indefinitely", talkingpointsmemo.com)

Is that vague enough? Huffington Post's Daphne Eviatar thinks the bill will "authorize the use of military force domestically, if terrorists are found here at home." But, who knows?

In any event, President Barack Obama did not request these extraordinary powers, so it's unclear whose interests are being served. Did Rep. McKeon concoct this bill himself in order to make the country safer or is he merely acting in behalf of powerful constituents who want a more autocratic form of government in the US? It's impossible to know, but it's odd that a Republican congressmen would want to expand presidential powers when a Democrat is in the White House.

Opposition to the Detainee Security Act of 2011, which is lumped together with the National Defense Authorization Act, has been minimal for the simple reason that the public has no idea what's going on. This is another stealth campaign by the sleazebag-wing of GOP. The NDAA isn't even on anyone's radar, yet. But 32 (progressive) Democrats led by Rep. John Conyers (D-MI) oppose many of the bill's provisions, particularly those that would "allow the war on terrorism to continue indefinitely" and which would "formalize an indefinite detention system at Guantanamo." ("Congress Poised To Give President Power To Continue GWOT Indefinitely", talkingpointsmemo.com)

Here's an excerpt from a letter from Conyers to McKeon expressing his concerns about the Detainee Security Act:

Dear Chairman McKeon:

We are writing concerning certain troubling provisions in H.R. 968, the Detainee Security Act of 2011, which we understand are likely to be considered as part of the National Defense Authorization Act (NDAA) of the Fiscal Year of 2012. Whatever one thinks about the merits of the Detainee Security Act, it is a serious enough departure from current counterterrorism policy and practice to merit consideration apart from the NDAA. Accordingly, we request that you use your chairmanship in the House Armed Services Committee to immediately hold hearings so that the public can further consider the various provisions within the Detainee Security Act.

Among the many troubling aspects of the Detainee Security Act are provisions that expand the war against terrorist organizations on a global basis. The Authorization for the Use of Military Force (AUMF) of 2001 was widely thought to provide authorization for the war in Afghanistan to root out al Qaeda, the Taliban, and others responsible for the 9/11 attacks. That war has dragged on for almost ten years, and after the demise of Osama Bin Laden, as the United States prepares for withdrawal from Afghanistan, the Detainee Security Act purports to expand the "armed conflict" against the Taliban, al Qaeda, and "associated forces" without limit. By declaring a global war against nameless individuals, organizations, and nations "associated" with the Taliban and al Qaeda, as well as those playing a supporting role in their efforts, the Detainee Security Act would appear to grant the President near unfettered authority to initiate military action around the world without further congressional approval. Such authority must not be ceded to the President without careful deliberation from Congress...."

The Detainee Security Act eliminates any process under which prisoners captured by the US military can establish their innocence. If you're caught by the military, then you're guilty; it's as simple as that.

Conyers again:

"The Detainee Security Act would also make permanent current transfer restrictions on Guantanamo detainees, further undermining the ability of the President to close the offshore detention facility."

So, if the bill is passed, Guantanamo Bay will stay open forever and prisoners will continue to be deprived of due process. Naturally, putting the military in charge without congressional oversight increases the likelihood that detainees will be tortured or abused as they have been in the past.

The real aim of the NDAA is to eviscerate the power of congress. It limits congress's power to restrain the president or to reign in the military. It enshrines the principle that the president can declare war by himself without getting a green light from congress. Thus, congress becomes a ceremonial institution stripped of any real political power.

The NDAA also includes other controversial provisions that are part of the right wing "wish list". For example, the bill would give "the Secretary of Defense the authority to conduct clandestine cyberspace activities in support of military operations." In other words, the military will continue to expand its spying, hacking and propaganda programs in and out of the country. But the main objectives of the new bill appear to be pretty straightforward: emasculate congress, savage the rule of law and elevate the executive to supreme leader. Then again, that's what the GOP has always wanted, right?

+++++++++++++++++++++++

Fighting Disclosure
By ROBERT WEISSMAN

It's a good rule of thumb: If the U.S. Chamber of Commerce -- the trade association for large corporations -- is whipped up about something, there's probably good reason for the public to strongly back whatever has sent the Chamber into fits.

Well, the Chamber is apoplectic over a modest Obama administration proposed executive order that would require government contractors to reveal all of their campaign-related spending.

This is a case where the rule of thumb works. The proposed executive order would provide important information about campaign spending by large corporations, and work to reduce the likelihood that contracts are provided as payback for campaign expenditures. You can urge the administration to stand up to the U.S. Chamber of Commerce by signing the petition here: .

The U.S. Chamber is of course no stranger to using exaggerated rhetoric to advance its positions. But its opposition to the Executive Order is astounding even by the standards of the Chamber.

A driving purpose of the Executive Order is to prevent corruption; the phenomenon of campaign contributors being given preferential access for contracting is so widely acknowledged that it has a slang name: "pay-to-play." In a spell-binding bit of Alice-in-Wonderland logic, the Chamber is arguing that the Executive Order will actually enable pay-to-play abuses!

An email action alert from the Friends of the U.S. Chamber of Commerce raises the specter of "your tax dollars only going to those companies or contractors that have contributed to a particular political party," asking, "Sounds like pay-to-play, right?"

It certainly does!

Why does the Chamber make this point? Because it then goes on to argue "that's exactly what could happen if the White House, as expected, issues a new Executive Order (EO) requiring American employers seeking federal government contracts to disclose their political contributions in excess of $5,000."

And thus does Alice fall down the rabbit hole.

The best way to prevent pay-to-play abuses is simply to ban campaign spending by government contractors. But short of that, disclosing campaign expenditures -- as the Obama executive order would mandate -- is the best way possible to limit the potential for abuse. Disclosure of government contactors' campaign spending will help shine a light on the contracting process and diminish the likelihood of abuse and waste of taxpayer monies.

The Chamber attempts to argue that if the government knows which companies are making political expenditures, the administration in power will reward those it likes and punish those it doesn't. Here's the problem with that logic: The government already knows. Company political action committees must disclose their spending. Direct contributions by company executives and employees are already disclosed.

What is not disclosed publicly are the secret contributions that corporations funnel through trade associations and front groups to influence elections. Thanks to the Supreme Court's decision in Citizens United v. Federal Election Commission, more than $130 million in secret money was spent in the 2010 election, and that figure is certain to skyrocket in 2012. These secret donations are expenditures that corporations can use to extract special access and consideration -- without even the check of the public knowing about the corporations' leverage.

What is an example of a trade association that funnels such corporate money, you might ask.

Why, the number one example is the U.S. Chamber of Commerce.

Is it just possible that this helps explain the vociferousness of the Chamber's objection?

(Hint: yes.)

Now, the U.S. Chamber rolls out some other complaints about the President's draft executive order. It would only apply to corporations, but not "big labor unions," grumbles the action alert from Friends of the U.S. Chamber. Actually, the executive order will apply to unions, in cases where they may be government contractors. But more to the point: There was legislation considered last year that would have required disclosure of all union contributions to groups making campaign-related expenditures, the DISCLOSE Act. That legislation was defeated by a single vote in the Senate ... thanks to the opposition of the U.S. Chamber of Commerce and its allies in the Republican Party.

"With America facing a severe budget crisis, your tax dollars should be closely protected," states the Friends of the U.S. Chamber action alert. "As such, government contracts should be awarded based on qualifications and cost -- just as they are in the private sector."

Exactly right.

Except that the Chamber draws exactly the wrong conclusion. To protect our tax dollars, we need -- at a bare minimum -- openness and disclosure of contractors' campaign spending. We can't afford and should not tolerate secret spending accounts that invite government contracting corruption.

India launches offensive against ACTA, cites "due process"

By Nate Anderson | Ars Technica

We mentioned recently that India was rounding up opposition to the Anti-Counterfeiting Trade Agreement (ACTA) and that it wanted to stop the deal from being made outside of existing international institutions. This week, it made good on its promise to object.

The new standards envisioned by ACTA "could short-change legal process, impede legitimate competition and shift the escalated costs of enforcing private commercial rights to governments, consumers and taxpayers," said an Indian representative at the World Trade Organization. "They also represent a systemic threat to the rights of legitimate traders and producers of goods, and fundamental rights of due process of individuals."

One key area of concern is ACTA's permission for customs agents to seize goods "in transit" between countries, even if those goods are legal in both the sending and receiving countries. "Let me give an example," said the Indian rep. "India's right to exercise flexibilities, such as granting compulsory licenses, would be interfered with by the mandatory application of border measures to goods in transit. Indian exporters could be constrained from shipping goods produced under its own exception to countries where there is no applicable IPRs protection because transit may be blocked by an intervening transit country’s application of domestic IPRs."

Generic pharmaceuticals are the big concern here. Countries like India sometimes create "compulsory licenses" in which drug firms can pay a set amount to the government and can legally use another organization's patented material, whether that organization wants them to or not. The US has similar compulsory licenses for things like music.

India also expressed irritation over the fact that "plurilateral processes like ACTA completely bypass the existing multilateral processes" at the WTO and elsewhere.

In the end, ACTA looks like overreach. "The released ACTA text shows a general shift in the locus of enforcement which enhances the power of IPRs holders beyond reasonable measure," said India. "Politicians, civil society and IP experts in ACTA members countries, have expressed concern regarding the substance and modus operandi of ACTA negotiations... Even the US Government Accountability Office (GAO) has recently raised serious questions concerning the data that has been relied on by proponents of the ACTA to support the effort."

India demanded that the WTO take up these issues and not "remain a silent observer to such a development."