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Paul Merrell

Secret Law Isn't the Public's Fault | Just Security - 0 views

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secret-law OLC-opinions disclosures FOIA

shared by Paul Merrell on 13 Nov 15 - No Cached
  • Officials in this administration have a funny way of blaming the victim. Did the CIA spy on Senate intelligence committee staffers who were investigating the agency’s torture program? No. OK, yes, you caught us — but the staffers were poking their nose into the CIA’s business. Are communities in some cities suffering from an uptick in crime rates? That must be because they were critical of police practices, and so the police are afraid to do their job. Are American Muslims disproportionately singled out for law enforcement scrutiny? It wouldn’t be necessary if they did a better job of identifying and rooting out the terrorists in their midst. Did a drone strike kill a 16-year-old boy who wasn’t on any target list but happened to be the son of alleged al-Qaeda operative Anwar al-Aulaqi? I guess he “should have had a more responsible father,” as then-White House press secretary Robert Gibbs helpfully explained. At the annual conference of the American Bar Association’s Standing Committee on National Security Law, officials were at it again. Both the CIA’s General Counsel, Caroline Krass, and the acting head of the Justice Department’s Office of Legal Counsel (OLC), Karl Thompson, observed that agencies are issuing fewer requests for formal OLC opinions and are seeking “informal,” unwritten advice from OLC instead. This trend undermines the public’s ability to obtain OLC opinions through FOIA requests. And, according to Krass, we have no one to blame but ourselves:
  • I do think one reason is a focus the office has gotten [in] the past 10 years or so in the public which has now led to Freedom of Information Act requests pretty much anytime the administration adopts a position in the context of domestic law or national security that could be [or] seems a little bit edgy or slightly controversial, immediately the request for the OLC opinion comes. What were we thinking? Well, we might have had in mind OLC officials’ own acknowledgment that their opinions constitute the working law of the executive branch, and are binding on agencies in the same manner that a court’s decision would be. When the public expresses interest in a controversial court opinion, that isn’t cited as a reason to move the judicial system into the shadows. To the contrary, it’s well-understood that the public has a right to know how judges are interpreting the law. That’s true regardless of whether the law deals with the rights and obligations of private parties or (as is usually the case with OLC opinions) the authorities of the government.  It’s high time we stop pretending that OLC opinions are merely attorneys’ advice, and thereby entitled to confidentiality. A private person is free to accept or reject her attorney’s advice. By contrast, as Thompson recognized, OLC opinions — even informal, unwritten ones — are “binding by custom and practice . … People are supposed to and do follow [them].” Moreover, in ordinary circumstances, it is no defense to criminal charges that the defendant’s lawyer gave bad advice. OLC opinions, on the other hand, confer effective immunity, as the Justice Department will not prosecute any official who acted in reliance on OLC’s conclusions.
  • The government nonetheless argues, and many courts have agreed, that OLC opinions are exempt from disclosure under FOIA because they are “deliberative” and “pre-decisional.” This assessment conflates two distinct decisions: the decision of an agency whether to adopt a course of conduct, and OLC’s decision regarding how to interpret the law. The latter decision may be one factor — along with other, non-legal factors, such as political viability, financial cost, and the existence of competing priorities — in the agency’s “deliberations” on the former. The agency ultimately must decide whether to move forward with a policy. But on the question of how the law should be interpreted, it is OLC, not the agency, which has the final word. If the agency were to issue a different legal interpretation, there is no question that OLC’s would take precedence, and the agency would be courting legal jeopardy by adopting a course of action in tension with OLC’s reading of the law. Perhaps the solution is simply to require the government to abide by its own characterization. If OLC opinions are to be given the status of deliberative documents and/or legal advice, so be it; but in that case, they cannot be binding on any agency or official, nor can they mitigate any official’s criminal or civil liability (unless they genuinely negate a required state of mind). If, on the other hand, the government wishes to treat OLC opinions as authoritative and a shield against prosecution or civil suit, then they must be called what they are — law — and made available to the public. Until that happens, the public will remain a victim of secret law, and there will be no one but the administration to blame.
Paul Merrell

Still Secret: Second Circuit Keeps More Drone Memos From the Public | Just Security - 0 views

www.justsecurity.org/...ret-circuit-drone-memos-public

tyranny secret-law targeted-killing OLC-opinions FOIA litigation

shared by Paul Merrell on 01 Dec 15 - No Cached
  • Secret law has been anathema to our democracy since its Founding, but a federal appeals court just gave us more of it.
  • We might forgive the citizenry’s confusion, though, in attempting to square those principles with the decision by the Second Circuit Court of Appeals, published yesterday, holding that the government may continue to keep secret nine legal memoranda by the Justice Department’s Office of Legal Counsel analyzing the legality of targeted killings carried out by the US government. It was just more than a year ago that the same panel of the same court ordered the government to disclose key portions of a July 2010 OLC memorandum that authorized the targeted killing of an American citizen in Yemen. At the time, the court’s opinion seemed to promise at least a partial solution to a problem straight (as the district court in the same case put it) from Alice in Wonderland: that [a] thicket of laws and precedents … effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for its conclusion a secret.
  • Yesterday’s opinion retreats from that promise by keeping much of the government’s law of the targeted killing program secret. (In this and two other cases, the ACLU continues to seek more than 100 other legal memoranda authored by various agencies concerning targeted killing.) It does so in two ways that warrant attention. First, the court suggests that OLC merely gives advice to executive branch agencies, and that OLC’s legal memoranda do not establish the “working law” of the government because agencies might not “adopt” the memoranda’s legal analysis as their own. This argument is legally flawed and, moreover, it flies in the face of the public evidence concerning how the executive branch treats opinions issued by OLC. In an OLC memorandum published, ironically or not, the same day (July 16, 2010) and over the same signature (David Barron’s) as the targeted killing memorandum released at the Second Circuit’s behest last year, the OLC explains that its “central function” is to provide “controlling legal advice to Executive Branch officials.” And not even two weeks ago, the acting head of the OLC told the public that even informally drafted legal advice emanating from his office is “binding by custom and practice in the executive branch,” that “[i]t’s the official view of the office, and that “[p]eople are supposed to and do follow it.”
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  • But that’s not what the government told the Second Circuit, and it’s not what the Second Circuit has now suggested is the law. Second, the Second Circuit’s new opinion endorses the continued official secrecy over any discussion of a document that has supplied a purported legal basis for the targeted killing program since almost immediately after the September 11 attacks. The document — a September 17, 2001 “Memorandum of Notification” — is not much of a secret. The government publicly identified it in litigation with the ACLU eight years ago; the Senate Intelligence Committee cited it numerous times in its recent torture report; and the press frequently makes reference to it. Not only that, but the Central Intelligence Agency’s former top lawyer, John Rizzo, freely discussed it in his recent memoir. According to Rizzo, the September 17 MON is “the most comprehensive, most ambitious, most aggressive, and most risky” legal authorization of the last decade and a half — which is saying something. Rizzo explains that the MON authorizes targeted killings of suspected terrorists by the CIA, and in his new book, Power Wars, Charlie Savage reports that the MON is the original source of the controversial (and legally novel) “continuing and imminent threat” standard the government uses to govern the lethal targeting of individuals outside of recognized battlefields. The MON is also likely to have authorized an end run around the assassination “ban” in Executive Order 12333 — a legal maneuver that is discussed in, but almost entirely redacted from, an earlier OLC analysis of targeted killing.
  • In yesterday’s opinion, the Second Circuit upheld the government’s withholding of a 2002 OLC memorandum that “concerns Executive Order 12333,” which almost certainly analyzes the effect of the September 17 MON, as well as of five other memoranda that “discuss another document that remains entitled to protection.” If indeed that “document” is the MON, it would seem to be yet another case of what the DC Circuit pointedly criticized, in a 2013 opinion, as the granting of judicial “imprimatur to a fiction of deniability that no reasonable person would regard as plausible.” In that case, the DC Circuit went on to quote Justice Frankfurter: “‘There comes a point where … Court[s] should not be ignorant as judges of what [they] know as men’ and women.” Last year, the Second Circuit took that admonishment to heart when it published the July 2010 OLC memorandum. Unfortunately, yesterday, rather than once again opening the country’s eyes to the law our government is applying behind closed doors, the Second Circuit closed its own.
Paul Merrell

CIA's Self-Authorization for Ice-Drowning Human Beings | emptywheel - 0 views

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war & peace torture drownings CIA

shared by Paul Merrell on 02 Apr 14 - No Cached
  • The WaPo has a story that repeats what I’ve been harping on for over a year (and in some cases, has been clear even longer): the Senate Torture Report shows that CIA repeatedly lied to Congress. There are, however, ugly new details about the torture (though it’s not clear whether they show up in the report): particularly regarding the treatment of Ammar al-Baluchi. If declassified, the report could reveal new information on the treatment of a high-value detainee named Ali Abdul Aziz Ali, the nephew of Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks. The Pakistanis captured Ali, known more commonly as Ammar al-Baluchi, on April, 30, 2003, in Karachi and turned him over to the CIA about a week later. He was taken to a CIA black site called “Salt Pit” near Kabul. At the secret prison, Baluchi endured a regime that included being dunked in a tub filled with ice water. CIA interrogators forcibly kept his head under the water while he struggled to breathe and beat him repeatedly, hitting him with a truncheon-like object and smashing his head against a wall, officials said. As with Zubaida and even Nashiri, officials said, CIA interrogators continued the harsh treatment even after it appeared that Baluchi was cooperating. The report notes that two other prisoners — members of the Libyan Islamic Fighting Group — were subjected to similar treatment at the same time.
  • Two other terrorism suspects, from Libya — Mohammed al-Shoroeiya and Khalid al-Sharif — endured similar treatment at Salt Pit, according to Human Rights Watch. One of the men said CIA interrogators “would pour buckets of very cold water over his nose and mouth to the point that he felt he would suffocate. Icy cold water was also poured over his body. He said it happened over and over again,” the report says. CIA doctors monitored their body temperatures so they wouldn’t suffer hypothermia. Ultimately, CIA got DOJ to authorize “water dousing” — in the manner that CIA always got DOJ to approve mere shadows of what they actually did, and the approval more closely matches the description of the LIFG prisoners — in the Bradbury Techniques Memo (see page 10). But not before it got used over and over at the Salt Pit (the same place where water dousing had already contributed to Gul Rahman’s death). Which is, I’m quite certain, one thing that CIA was doing with the Legal Principles document, a set of legal guidelines the CIA wrote for itself (with John Yoo’s freelance help) as the CIA’s legal problems started to mount. As I’ve noted, the first draft of the memos got hand-carried to John Yoo on April 28, 2003, just as these detainees were in the Salt Pit. There were several more discussions internally at CIA in anticipation of litigation before they tried (unsuccessfully) to create a fait accompli with Pat Philbin on June 16, 2003. At that point, the document only generally approved techniques equivalent to those already approved. As CIA would later explain,
  • We rely on the applicable law and OLC guidance to assess the lawfulness of detention and interrogation techniques. For example, using the applicable law and relying on OLC’s guidance, we concluded that the abdominal slap previously discussed with OLC (and mentioned in the June 2003 summary points) is a permissible interrogation technique. Similarly, in addition to the sitting and kneeling stress positions discussed earlier with OLC, the Agency has added to its list of approved interrogation techniques two standing stress positions involving the detainee leaning against a wall. I guess, in similar fashion, John Yoo and his CIA buddies believe ice-drowning is equivalent, as another kind of simulated drowning, to waterboarding, which had been approved? Then the next year, when Scott Muller tried the same trick with Jack Goldsmith — trying to get him to sign off on the techniques CIA had freelanced its own legal opinion — he asked to include water dousing (and another water-based technique and one still-redacted technique) explicitly. Of course, the description of water dousing fell far short of what the CIA was actually doing — dunking men in ice-water repeatedly — though the outlines, especially the concern about detainees ingesting water and hypothermia — show the outlines of the torture such language was meant to gloss. To understand the CIA’s torture program, you have to understand what these bureaucratic maneuvers were meant to cover. Now we know they were intended to authorize controlled drowning of men in ice water.
Paul Merrell

DOJ's Motion to Dismiss in Smith v. Obama, the case challenging the legality of the war... - 0 views

www.justsecurity.org/...-challenging-legality-war-isil

war & peace Smith_v._Obama war-powers-resolution Iraq Syria litigation

shared by Paul Merrell on 15 Jul 16 - No Cached
  • As I noted in an earlier post, Nathan Smith, a U.S. Army captain deployed to Kuwait as part of the campaign against ISIL, Operation Inherent Resolve, has sued the President, seeking a declaration that Congress has not authorized the hostilities in Iraq and Syria and that therefore the War Powers Resolution requires the President to remove U.S. forces from hostilities in those nations. On Tuesday, the Department of Justice filed a motion to dismiss the case. Its brief in support of the motion includes one argument that I think is correct (albeit not for all the reasons the government offers) — namely, that Smith lacks standing to sue. That ought to be sufficient to have the case dismissed. The brief also includes an argument on the merits (albeit not designated as such) that is very interesting and potentially important — an account of how Congress has allegedly authorized Inherent Resolve in three ways: (i) in the 2001 AUMF; (ii) in the 2002 AUMF; and (iii) in current appropriations statutes. The heart of the brief, however, is devoted to a third argument — that Judge Koller-Kotelly must dismiss the case on the basis of the political question doctrine — that is not only wrong, but that simply ignores the Supreme Court’s recent (and repeated) repudiation of that very argument.
  • On page 39 of its 45-page brief, the government finally gets around to the reason why the court should dismiss the complaint: Smith lacks standing. Importantly, Smith’s theory of standing is not that he — an Army captain deployed to perform intelligence services in Kuwait — is more likely to be injured or killed by virtue of the President’s decision to deploy troops into hostilities in Iraq and Syria. It is, instead, that the President’s alleged failure to comply with the War Powers Act results in Captain Smith’s own violation of his officer’s oath to “support and defend” the Constitution “against all enemies, foreign and domestic,” and to “bear true faith and allegiance” to the Constitution.
  • The government’s standing argument begins (p. 35) by suggesting that “[p]laintiff’s claim that he is being forced to betray his oath is insufficient to establish standing because the violation of an oath, by itself, is not an injury in fact.” The cases the government cites for that proposition, however, do not say that a forced oath violation would not be an injury in fact — and that’s not a question the judge needs to resolve. What the cases establish, instead, is the point the government finally argues at page 39 — namely, that a government officer does not violate his oath by complying with superiors’ orders, even if it turns out that the law prohibits the military operation in which those orders are issued. Indeed, Smith would not violate his oath of office even if his superiors’ orders themselves were unauthorized, or if the intelligence activities he is ordered to performed were unauthorized. But he does not allege even those things (as I discuss below, he does not, for instance, alleged that he is being ordered to do anything unlawful). Instead, he merely argues that because President Obama should have withdrawn troops from Syria and Iraq 60 days after their deployment, Smith himself is violating his oath to “bear true faith and allegiance to the Constitution.” This is a non sequitur: Even if Smith is right that the continuation of Operation Inherent Resolve is unlawful, that would not mean that he is acting in violation of his oath. (Much more on this in my earlier post.) And that simple fact is reason enough for Judge Koller-Kotelly to dismiss the case.
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  • One of Smith’s counsel, Professor Bruce Ackerman, argues that this reason for rejecting the oath-based theory of standing ignores the Supreme Court’s 1804 decision in Little v. Barreme. Little, however, is not on point. In that case, Navy Captain Little was sued by the owners of a Danish ship for damages caused when Little seized that neutral ship. The Court held that Little could be liable, notwithstanding the fact that he was following orders, because the capture violated a implicit statutory prohibition on the military’s seizure of ships sailing from France to the United States. In this case, however, Captain Smith has not argued — nor could he — that he has been ordered to do anything unlawful (in violation of a statute), let alone that he has been ordered to do something that would subject him to possible liability for damages. He is, instead, arguing that President Obama violated a statute. That is not enough to establish Smith’s standing to sue.
  • The government’s main argument, to which it devotes far too many pages, is that the judge must dismiss the case because it raises a “political question” that courts cannot answer. This is flatly wrong — and it ignores several controlling precedents, including the Supreme Court’s recent 8-1 rejection of virtually the same government argument in Zivotofsky v. Clinton.
  • The most interesting thing about the government’s brief — and by far the most important aspect of it, for public purposes apart from the lawsuit itself — is that, in the section ostensibly arguing that the case is nonjusticiable (see pp. 25-30, and also pp. 4-14), DOJ actually offers the Executive branch’s most detailed defense yet about why Operation Inherent Resolve is congressionally authorized. As some of us predicted, the government relies on three arguable authorizations, any one of which would be sufficient to defeat Smith’s WPR claim if the courts were to reach the merits. In this post I’m not going to assess the merits of the three arguments. For now, my purpose is only to describe them, and to raise one issue with respect to the third. i. First, the government argues that the 2001 AUMF authorizes the operation against ISIL.
  • Second, the government argues that the 2002 AUMF also authorizes Operation Inherent Resolve, just as it authorized operations in Iraq against AQI (which became ISIL) from 2003 to 2011, after the Hussain regime fell.
  • Finally, and most interestingly (in part because the government has not previously made this argument), DOJ argues that a recent “unbroken stream” of appropriations statutes not only confirm the authorities allegedly conferred by the 2001 and 2002 AUMFs, but also offer their own, independent congressional authorization.
  • Two things are fairly clear from this: The members of Congress approve of Operation Inherent Resolve — indeed, there’s virtually no opposition. And Congress has (most likely) appropriated funds to pay for it. The operative question, however, is whether Congress’s appropriations also serve as an authorization that would supersede the requirement of WPR section 5(b). The government brief alludes to one important argument that the plaintiff will undoubtedly raise: Section 8(a)(1) of the WPR provides that, for purposes of tolling the 60-day clock of section 5(b), “[a]uthority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred (1) from any provision of law . . . including any provision contained in any appropriations Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this chapter.” Obviously, the 2016 Act does not satisfy that requirement. Is that fatal to the appropriations-as-authorization argument?
  • As the Office of Legal Counsel 50 U.S.C. 1542 and 1543). These provisions might be read simply to convey that the executive must continue to comply with the consultation and reporting requirements of WPR sections 3 and 4, even after the 2016 Act authorizes the introduction of troops into hostilities in Iraq and Syria. Or they might alternatively be construed to also specify that the Act is not providing the authority that section 5(b) of the WPR calls for.
  • Not surprisingly, DOJ argues for the former view (pp. 27-28 of the brief): “[I]n the few provisions in which Congress did reference the War Powers Resolution, to clarify that no funds made available for Operation Inherent Resolve are to be used ‘in contravention’ of the Resolution, Congress signaled its agreement that the President’s counter-ISIL military actions were authorized by simultaneously funding Operation Inherent Resolve. If Congress believed that the United States had been conducting airstrikes and other counter-ISIL military activities ‘in contravention of the War Powers Resolution,’ it would have made no sense for Congress to use the ‘in contravention’ proviso in the same laws that make funds available for the express purpose of continuing those military activities.” That’s not a bad argument, at least at first glance; but it’s not a slam-dunk, either, in part because appropriations provisions do not necessarily establish authorizations. It’ll be interesting to see how Captain Smith’s lawyers respond to this particular aspect of the merits argument. I doubt Judge Koller-Kotelly will reach it, however, because she is likely to dismiss the case for want of standing.
  • Paul Merrell on 15 Jul 16
     
    I've read the brief. I don't think the implied partial repeal of the War Powers Resolution argument should fly. The relevant provision establishes a rule of interpretation of later statutes and the appropriations bills neither reject the rule of interpretation nor specifically provide authorization for use of military force. They just authorize funding. On the standing issue, I think the DoJ position is correct; the oath of office applies only to senior officers who make the decision to initiate a war. But DoJ may have opened the door to a more compelling standing argument by arguing that the war does not constitute a war crime, a crime against peace, or a crime against humanity under international law. DoJ did not need to make that argument because Smith had not alleged in his complaint that he was being ordered to commit such crimes, but by doing so DoJ waives any argument that such issues are beyond the scope of Smith's standing and the evidence that the Iraq and Syrian wars are illegal under international law is, to say the least, strong.
Paul Merrell

Let's check James Comey's Bush years record before he becomes FBI director | Laura Murp... - 0 views

www.guardian.co.uk/...omey-fbi-director-bush-history

surveillance state war & peace Obama Comey FBI confirmation-hearing torture indefinite detention

shared by Paul Merrell on 23 Jun 13 - No Cached
  • Comey is lionised in DC for one challenge over liberties. Yet he backed waterboarding, wire-tapping and indefinite detention
  • It had the air of Hollywood. On the night of 10 March 2004, James Comey, the nominee to lead the FBI for the next ten years, rushed to the hospital bedside of his terribly ill boss, Attorney General John Ashcroft.There, he eventually confronted White House Chief of Staff Andrew Card and White House Counsel Alberto Gonzales, who were trying to get the pancreatitis-stricken Ashcroft to renew a still secret and illegal surveillance program on Americans' electronic communications. Neither Ashcroft nor Comey, then acting attorney general because of Ashcroft's condition, would reauthorize the program. When Gonzales authorized the program to go forward without a Justice Department certification, Comey threatened to resign, along with his staff and FBI Director Robert Mueller.The threats worked: President Bush blinked, and Comey won modifications to the secret surveillance program that he felt brought it into compliance with the law. This event, now the stuff of DC legend, has solidified Comey's reputation as a "civil liberties superhero", in the words of CNN's Jake Tapper, and may be one of the reasons President Obama nominated him Friday to be the next director of the FBI.
  • There's one very big problem with describing Comey as some sort of civil libertarian: some facts suggest otherwise. While Comey deserves credit for stopping an illegal spying program in dramatic fashion, he also approved or defended some of the worst abuses of the Bush administration during his time as deputy attorney general. Those included torture, warrantless wiretapping, and indefinite detention.On 30 December 2004, a memo addressed to James Comey was issued that superseded the infamous memo that defined torture as pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure". The memo to Comey seemed to renounce torture but did nothing of the sort. The key sentence in the opinion is tucked away in footnote 8. It concludes that the new Comey memo did not change the authorizations of interrogation tactics in any earlier memos.In short, the memo Comey that approved gave a thumbs-up on waterboarding, wall slams, and other forms of torture – all violations of domestic and international law.
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  • Then, there's warrantless wiretapping. Many media reports describe that Comey's defiant stand at Ashcroft's bedside was in opposition to the warrantless wiretapping of Americans international communications. But we simply do not know exactly what Comey opposed, or why or what reforms he believed brought the secret program within the rule of law. We do, however, know that Comey was read into the program in January 2004.While, to his credit, he immediately began raising concerns, the program was still in existence when the New York Times exposed it in December 2005. This was a year and a half after Comey's hospital showdown with Gonzales and Card. In fact, the warrantless wiretapping program was supported by a May 2004 legal opinion (pdf) produced by the Justice Department's Office of Legal Counsel and signed off by Comey, which replaced the 2001 legal opinion Comey had problems with.This, of course, raises the question: just what illegal surveillance program did Comey oppose so much he would resign over it? Last weekend, the Washington Post provided a new theory: the Marina program, which collects internet metadata. Now, the Senate has an opportunity to end the theorizing and find out what exactly Comey objected to. It's a line of questioning that senators should focus doggedly on, in light of the recent revelations in the Post and the Guardian.
  • The final stain on Comey's record was his full-throated defense of the indefinite military detention of an American citizen arrested on American soil. In a June 2004 press conference, Comey told of Jose Padilla, an alleged al-Qaida member accused of plotting to detonate a dirty bomb as well as blow up apartment buildings in an American city. By working for al-Qaida, Padilla, Comey argued, could be deprived of a lawyer and indefinitely detained as an enemy combatant on a military brig off the South Carolina coast for the purpose of extracting intelligence out of him. It turned out that Padilla was never charged with the list of crimes and criminal associations pinned on him by Comey that day. When Padilla was finally convicted – in a federal court – in August 2007, it wasn't for plotting dirty bomb attacks or blowing up apartment buildings. Rather, he was convicted of material support of terrorism overseas. During his indefinite military detention, Padilla was tortured.
  • Everyone has a backstory, and the confirmation process should ensure the American public hears all relevant background information, both good and bad, when Comey appears before the Senate. Senators should insist that Comey explain his role during the Bush era and repudiate policies he endorsed on torture, indefinite detention, and illegal surveillance.The new FBI director will be around for the next decade. We need one who will respect the constitution and the rule of law; not one who will use discredited and illegal activities in the name of justice and safety.
  • Paul Merrell on 23 Jun 13
     
    Comey's not right for the FBI directorship this time around. The nation needs an FBI Director and Comey's role in government surveillance, torture, warrantless wiretapping, extraordinary rendition, and indefinite detention of a U.S. citizen. That's too much to get sorted out any time soon given the government shroud of secrecy on those topics. 
Paul Merrell

Obama ordered to divulge legal basis for killing Americans with drones | Ars Technica - 0 views

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war & peace drone attacks Obama FOIA litigation targeted-killing Due-Process

shared by Paul Merrell on 24 Apr 14 - No Cached
  • The Obama administration must disclose the legal basis for targeting Americans with drones, a federal appeals court ruled Monday in overturning a lower court decision likened to "Alice in Wonderland." The Second US Circuit Court of Appeals, ruling in a Freedom of Information Act (FOIA) claim by The New York Times and the American Civil Liberties Union (ACLU), said the administration must disclose the legal rationale behind its claims that it may kill enemies who are Americans overseas.
  • The Obama administration must disclose the legal basis for targeting Americans with drones, a federal appeals court ruled Monday in overturning a lower court decision likened to "Alice in Wonderland." The Second US Circuit Court of Appeals, ruling in a Freedom of Information Act (FOIA) claim by The New York Times and the American Civil Liberties Union (ACLU), said the administration must disclose the legal rationale behind its claims that it may kill enemies who are Americans overseas. "This is a resounding rejection of the government's effort to use secrecy and selective disclosure to manipulate public opinion about the targeted killing program," ACLU Legal Director Jameel Jaffer said in an e-mail. The so-called targeted-killing program—in which drones from afar shoot missiles at buildings, cars, and people overseas—began under the George W. Bush administration. The program, which sometimes kills innocent civilians, was broadened under Obama to include the killing of Americans.
  • Government officials from Obama on down have publicly commented on the program, but they claimed the Office of Legal Counsel's memo outlining the legal rationale about it was a national security secret. The appeals court, however, said on Monday that officials' comments about overseas drone attacks means the government has waived its secrecy argument. "After senior Government officials have assured the public that targeted killings are 'lawful' and that OLC advice 'establishes the legal boundaries within which we can operate,'" the appeals court said, "waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred" (PDF). The Electronic Privacy Information Center (EPIC), which in a friend-of-the court brief urged the three-judge appeals court to rule as it did, said the decision was a boon for citizen FOIA requests. "It's very helpful. We have a number of cases, including one of our oldest FOIA cases, that involves the warrantless wiretapping memos. The basic premise is when OLC writes a legal memo and when that becomes the known basis for a program, that's the law of the executive branch and cannot be withheld," Alan Butler, EPIC's appellate counsel, said in a telephone interview.
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  • The appeals court said the memo may be redacted from revealing which government agencies are behind the attacks, although former CIA Director Leon Panetta has essentially acknowledged that agency's role. Last year, a federal judge blocked the disclosure of the memo. Judge Colleen McMahon of New York said she was ensnared in a "paradoxical situation" in which the law forbade her from ordering the memo's release: The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules—a veritable catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret.
  • Paul Merrell on 24 Apr 14
     
    Unless the Feds successfully seek en banc review or review by the Supreme Court, we will apparently be able to read the infamous DoJ Office of Legal Counsel explaining the legal arguments why Obama may lawfully order drone strikes on U.S. citizens inside nations with which the U.S. is not at war. Let's keep in mind that DoJ claimed that Obama has the power to do that in the U.S. too. According to the Second Circuit's opinion, the ordered disclosure includes a somewhat lengthy section arguing that 18 U.S.C. 1119 and 956 do not apply to Obama. Section 1119 provides, inter alia: "(b) Offense.- A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113." Section 956 provides in part: "(a)(1) Whoever, within the jurisdiction of the United States, conspires with one or more other persons, regardless of where such other person or persons are located, to commit at any place outside the United States an act that would constitute the offense of murder, kidnapping, or maiming if committed in the special maritime and territorial jurisdiction of the United States shall, if any of the conspirators commits an act within the jurisdiction of the United States to effect any object of the conspiracy, be punished as provided in subsection (a)(2). "(2) The punishment for an offense under subsection (a)(1) of this section is- (A) imprisonment for any term of years or for life if the offense is conspiracy to murder or kidnap; and (B) imprisonment for not more than 35 years if the offense is conspiracy to maim." There should also be a section explaining away the Constitution's Due Process Clause (protecting life, liberty, and property) and Right to Trial by Jury, as well as exempting the President from international law establishing human rights and l
Paul Merrell

Groups Call for Public Disclosure of the Legal Rationale for US Force Against ISIS - 0 views

www.pogo.org/...all-for-public-disclosure.html

war & peace ISIL war-powers constitution Obama legal-memos

shared by Paul Merrell on 20 Sep 14 - No Cached
  • OpenTheGovernment.org urges you to press for public disclosure of all Office of Legal Counsel memoranda and other legal opinions setting forth the legal rationale for the United States to use military force against the Islamic State in Iraq and Syria (ISIS). Congress cannot meaningfully exercise its Constitutional power to authorize force if the Executive uses secret legal opinions to extend past authorizations in ways that Congress never anticipated or intended. The Obama administration has stated that it already has the authority it needs to launch airstrikes against ISIS in Syria, but has given shifting, incomplete explanations of the source of that authority.
  • Last week, administration officials stated that Congress did not need to vote to authorize strikes against ISIS (also commonly known as ISIL or the Islamic State) because the President could rely on the post-September 11, 2001 Authorization for the Use of Military Force (AUMF). An administration official acknowledged that ISIS had publicly split with Al Qaeda, but said that the AUMF still applied to ISIS based on its past relationship with Al Qaeda, its role in the Iraq war, and ISIS’s “position – supported by some individual members and factions of AQ-aligned groups – that it is the true inheritor of Usama bin Laden’s legacy.”1But the 2001 AUMF does not authorize force against all anti-American terrorist organizations that are arguably “the true inheritors of Usama bin Laden’s legacy.” It authorizes force against “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”2
  • The leadership of ISIS had no known role in the September 11 attacks, and the administration’s recent statements acknowledge that the group first affiliated with Al Qaeda in 2004. The Obama administration has argued for some time that the 2001 AUMF authorized military action against “associated forces” of Al Qaeda even if those affiliates had no role in the September 11 attacks, but has also assured Congress that there were meaningful limits on what constituted an “associated force.” Department of Defense General Counsel Stephen Preston testified to the Senate Foreign Relations Committee in May that to be an “associated force,” a group had to be both (1) an organized, armed group that has entered the fight alongside al-Qa’ida or the Taliban and (2) a co-belligerent with al-Qa’ida or the Taliban in hostilities against the United States or its coalition partners.(3) Al Qaeda specifically disavowed conducting operations with ISIS earlier this year.4 York Times, the administration has said it has no secret intelligence that the groups have reconciled,5 is difficult to understand how it could remain an “associated force.”
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  • The Obama administration has said that “2002 Iraq AUMF would serve as an alternative statutory for military action in Iraq—but this is inconsistent with prior administration statements that the basis”6 Iraq war has ended, and that the 2002 AUMF “is no longer used for any U.S. Government activities.”7Administration officials have also cited the President’s power under Article II of the Constitution to act in self-defense of the United States to attack ISIS—but this contradicts its repeated assurances that ISIS does not pose an imminent risk of attack on U.S. soil.8Instead of trying to explain the case for war in confusing and often anonymous soundbites, the Executive Branch should publicly release the OLC memos and other binding written analyses that explain the purported legal basis for strikes against ISIS, and its legal interpretation of the AUMF more generally.
  • When the United States enters a war, the public and Congress need to know who the enemy is, and under what legal authority U.S. forces are operating. It would be unacceptable in a democracy for Congress to authorize force in secret. It is equally unacceptable for the Executive Branch to secretly interpret and expand past Congressional authorizations. Accordingly, we hope you will use the upcoming committee hearing to press for full disclosure of the relevant OLC opinions.
Paul Merrell

Show Us the Drone Memos - NYTimes.com - 0 views

www.nytimes.com/...show-us-the-drone-memos.html

tyranny Obama 5th-Amendment 4th Amendment assassinations Rand Paul drones

shared by Paul Merrell on 12 May 14 - No Cached
  • I BELIEVE that killing an American citizen without a trial is an extraordinary concept and deserves serious debate. I can’t imagine appointing someone to the federal bench, one level below the Supreme Court, without fully understanding that person’s views concerning the extrajudicial killing of American citizens.But President Obama is seeking to do just that. He has nominated David J. Barron, a Harvard law professor and a former acting assistant attorney general, to a seat on the United States Court of Appeals for the First Circuit.
  • I believe that all senators should have access to all of these opinions. Furthermore, the American people deserve to see redacted versions of these memos so that they can understand the Obama administration’s legal justification for this extraordinary exercise of executive power. The White House may invoke national security against disclosure, but legal arguments that affect the rights of every American should not have the privilege of secrecy.I agree with the A.C.L.U. that “no senator can meaningfully carry out his or her constitutional obligation to provide ‘advice and consent’ on this nomination to a lifetime position as a federal appellate judge without being able to read Mr. Barron’s most important and consequential legal writing.” The A.C.L.U. cites the fact that in modern history, a presidential order to kill an American citizen away from a battlefield is unprecedented.The Bill of Rights is clear. The Fifth Amendment provides that no one can be “deprived of life, liberty, or property, without due process of law.” The Sixth Amendment provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” as well as the right to be informed of all charges and have access to legal counsel. These are fundamental rights that cannot be waived with a presidential pen.
  • In battle, combatants engaged in war against America get no due process and may lawfully be killed. But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution.
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  • While he was an official in the Justice Department’s Office of Legal Counsel, Mr. Barron wrote at least two legal memos justifying the execution without a trial of an American citizen abroad. Now Mr. Obama is refusing to share that legal argument with the American people. On April 30, I wrote to the Senate majority leader, Harry Reid, urging him to delay this nomination, pending a court-ordered disclosure of the first memo I knew about. Since that letter, I have learned more. The American Civil Liberties Union sent a letter to all senators on May 6, noting that in the view of the Senate Intelligence Committee chairwoman, Dianne Feinstein, “there are at least eleven OLC opinions on the targeted killing or drone program.” It has not been established whether Mr. Barron wrote all those memos, but we do know that his controversial classified opinions provided the president with a legal argument and justification to target an American citizen for execution without a trial by jury or due process.
  • No one argues that Americans who commit treason shouldn’t be punished. The maximum penalty for treason is death. But the Constitution specifies the process necessary to convict.Continue reading the main story Continue reading the main story AdvertisementAnwar al-Awlaki was an American citizen who was subject to a kill order from Mr. Obama, and was killed in 2011 in Yemen by a missile fired from a drone. I don’t doubt that Mr. Awlaki committed treason and deserved the most severe punishment. Under our Constitution, he should have been tried — in absentia, if necessary — and allowed a legal defense. If he had been convicted and sentenced to death, then the execution of that sentence, whether by drone or by injection, would not have been an issue. Continue reading the main story 526 Comments But this new legal standard does not apply merely to a despicable human being who wanted to harm the United States. The Obama administration has established a legal justification that applies to every American citizen, whether in Yemen, Germany or Canada.
  • Defending the rights of all American citizens to a trial by jury is a core value of our Constitution. Those who would make exceptions for killing accused American citizens without trial should give thought to the times in our history when either prejudice or fear allowed us to forget due process. During World War I, our nation convicted and imprisoned Americans who voiced opposition to the war. During World War II, the government interned Japanese-Americans.The rule of law exists to protect those who are minorities by virtue of their skin color or their beliefs. That is why I am fighting this nomination. And I will do so until Mr. Barron frankly discusses his opinions on executing Americans without trial, and until the American people are able to participate in one of the most consequential debates in our history. Rand Paul is a Republican senator from Kentucky.
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