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Paul Merrell

How the US Armed-up Syrian Jihadists - Consortiumnews - 0 views

consortiumnews.com/...e-us-armed-up-syrian-jihadists

war & peace U.S.-foreign-policy Syria CIA DoD Special-Forces jihadis training

shared by Paul Merrell on 01 Oct 16 - No Cached
  • “No one on the ground believes in this mission or this effort”, a former Green Beret writes of America’s covert and clandestine programs to train and arm Syrian insurgents, “they know we are just training the next generation of jihadis, so they are sabotaging it by saying, ‘Fuck it, who cares?’”. “I don’t want to be responsible for Nusra guys saying they were trained by Americans,” the Green Beret added. In a detailed report, US Special Forces Sabotage White House Policy gone Disastrously Wrong with Covert Ops in Syria, Jack Murphy, himself a former Green Beret (U.S. Special Forces), recounts a former CIA officer having told him how the “the Syria covert action program is [CIA Director John] Brennan’s baby …Brennan was the one who breathed life into the Syrian Task Force … John Brennan loved that regime-change bullshit.”
  • “No one on the ground believes in this mission or this effort”, a former Green Beret writes of America’s covert and clandestine programs to train and arm Syrian insurgents, “they know we are just training the next generation of jihadis, so they are sabotaging it by saying, ‘Fuck it, who cares?’”. “I don’t want to be responsible for Nusra guys saying they were trained by Americans,” the Green Beret added. In a detailed report, US Special Forces Sabotage White House Policy gone Disastrously Wrong with Covert Ops in Syria, Jack Murphy, himself a former Green Beret (U.S. Special Forces), recounts a former CIA officer having told him how the “the Syria covert action program is [CIA Director John] Brennan’s baby …Brennan was the one who breathed life into the Syrian Task Force … John Brennan loved that regime-change bullshit.”
  • In gist, Murphy tells the story of U.S. Special Forces under one Presidential authority, arming Syrian anti-ISIS forces, whilst the CIA, obsessed with overthrowing President Bashar al-Assad, and operating under a separate Presidential authority, conducts a separate and parallel program to arm anti-Assad insurgents. Murphy’s report makes clear the CIA disdain for combatting ISIS (though this altered somewhat with the beheading of American journalist James Foley in August 2014): “With the CIA wanting little to do with anti-ISIS operations as they are focused on bringing down the Assad regime, the agency kicked the can over to 5th Special Forces Group. Basing themselves out of Jordan and Turkey” — operating under “military activities” authority, rather than under the CIA’s coveted Title 50 covert action authority. The “untold story,” Murphy writes, is one of abuse, as well as bureaucratic infighting, which has only contributed to perpetuating the Syrian conflict.
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  • But it is not the “turf wars,” nor the “abuse and waste,” which occupies the central part of Murphy’s long report, that truly matters; nor even the contradictory and self-defeating nature of U.S. objectives pursued. Rather, the report tells us quite plainly why the attempted ceasefires have failed (although this is not explicitly treated in the analysis), and it helps explain why parts of the U.S. Administration (Defense Secretary Ashton Carter and CIA Director Brenner) have declined to comply with President Obama’s will – as expressed in the diplomatic accord (the recent ceasefire) reached with the Russian Federation. The story is much worse than that hinted in Murphy’s title: it underlies the present mess which constitutes relations between the U.S. and Russia, and the collapse of the ceasefire.
Paul Merrell

It's Time to Rewrite the Internet to Give Us Better Privacy, and Security - The Daily B... - 0 views

www.thedailybeast.com/...tter-privacy-and-security.html

surveillance state lessig surveillance-blocking

shared by Paul Merrell on 22 Jun 13 - No Cached
  • Almost 15 years ago, as I was just finishing a book about the relationship between the Net (we called it “cyberspace” then) and civil liberties, a few ideas seemed so obvious as to be banal: First, life would move to the Net. Second, the Net would change as it did so. Gone would be simple privacy, the relatively anonymous default infrastructure for unmonitored communication; in its place would be a perpetually monitored, perfectly traceable system supporting both commerce and the government. That, at least, was the future that then seemed most likely, as business raced to make commerce possible and government scrambled to protect us (or our kids) from pornographers, and then pirates, and now terrorists. But another future was also possible, and this was my third, and only important point: Recognizing these obvious trends, we just might get smart about how code (my shorthand for the technology of the Internet) regulates us, and just possibly might begin thinking smartly about how we could embed in that code the protections that the Constitution guarantees us. Because—and here was the punchline, the single slogan that all 724 people who read that book remember—code is law. And if code is law, then we need to be as smart about how code regulates us as we are about how the law does so.
  • There is, after all, something hopeful about a future that was smart about encoding our civil liberties. It could, in theory at least, be better. Better at protecting us from future Nixons, better at securing privacy, and better at identifying those keen to commit crime.
  • But what astonishes me is that today, more than a decade into the 21st century, the world has remained mostly oblivious to these obvious points about the relationship between law and code. That’s the bit in the Edward Snowden interview that is, to me, the most shocking. As he explained to Glenn Greenwald: The NSA specially targets the communications of everyone. It ingests them by default. It collects them in its system, and it filters them and it analyzes them and it measures them and it stores them for periods of time simply because that’s the easiest and the most efficient and most valuable way to achieve these ends ... Not all analysts have the ability to target everything. But I sitting at my desk certainly had the authority to wiretap anyone—from you [the reporter, Glenn Greenwald], to your accountant, to a federal judge, to even the president if I had a personal email. We don’t know yet whether Snowden is telling the truth. Lots of people have denied specifics, and though his interview is compelling, just now, we literally don’t know. But what we do know are the questions that ought to be asked in response to his claims. And specifically, this: Is it really the case that the government has entrusted our privacy to the good judgment of private analysts? Are there really no code-based controls for assuring that specific surveillance is specifically justified? And what is the technology for assuring that rogues paid by our government can’t use data collected by our government for purposes that none within our government would openly and publicly defend?
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  • Because the fact is that there is technology that could be deployed that would give many the confidence that none of us now have. “Trust us” does not compute. But trust and verify, with high-quality encryption, could. And there are companies, such as Palantir, developing technologies that could give us, and more importantly, reviewing courts, a very high level of confidence that data collected or surveilled was not collected or used in an improper way. Think of it as a massive audit log, recording how and who used what data for what purpose. We could code the Net in a string of obvious ways to give us even better privacy, while also enabling better security. But we don’t, or haven’t, obviously. Maybe because of stupidity. How many congressmen could even describe how encryption works? Maybe because of cupidity. Who within our system can resist large and lucrative contracts to private companies, especially when bundled with generous campaign funding packages? Or maybe because the “permanent war” that Obama told us we were not in has actually convinced all within government that old ideas are dead and we just need to “get over it”—ideas like privacy, and due process, and fundamental proportionality. These ideas may be dead, for now. And they will stay dead, in the future. At least until we finally learn how liberty can live in the digital age. And here’s the hint: not through law alone, but through law that demands code that even the Electronic Frontier Foundation could trust.
  • Paul Merrell on 22 Jun 13
     
    As the most prominent among law professors concerned with online civil liberties and now specializing in government corruption, if Lawrence Lessig says there are technical solutions for protecting us from online government snooping, I'm all years. He directs attention to technology being developed by Palantir, http://www.palantir.com/
Paul Merrell

Cut Off the NSA's Juice | Global Research - 0 views

www.globalresearch.ca/...5366575

surveillance state NSA NSA-blowback legislation states

shared by Paul Merrell on 29 Jan 14 - No Cached
  • The National Security Agency depends on huge computers that guzzle electricity in the service of the surveillance state. For the NSA’s top executives, maintaining a vast flow of juice to keep Big Brother nourished is essential — and any interference with that flow is unthinkable. But interference isn’t unthinkable. And in fact, it may be doable. Grassroots activists have begun to realize the potential to put the NSA on the defensive in nearly a dozen states where the agency is known to be running surveillance facilities, integral to its worldwide snoop operations. Organizers have begun to push for action by state legislatures to impede the electric, water and other services that sustain the NSA’s secretive outposts.
  • Those efforts are farthest along in the state of Washington, where a new bill in the legislature — the Fourth Amendment Protection Act — is a statutory nightmare for the NSA. The agency has a listening post in Yakima, in the south-central part of the state. The bill throws down a challenge to the NSA, seeking to block all state support for NSA activities violating the Fourth Amendment. For instance, that could mean a cutoff of electricity or water or other state-government services to the NSA site. And the measure also provides for withholding other forms of support, such as research and partnerships with state universities. Here’s the crux of the bill: “It is the policy of this state to refuse material support, participation, or assistance to any federal agency which claims the power, or with any federal law, rule, regulation, or order which purports to authorize, the collection of electronic data or metadata of any person pursuant to any action not based on a warrant that particularly describes the person, place, and thing to be searched or seized.” If the windup of that long sentence has a familiar ring, it should. The final dozen words are almost identical to key phrases in the Fourth Amendment of the U.S. Constitution.
  • In recent days, more than 15,000 people have signed a petition expressing support for the legislation. Launched by RootsAction.org, the petition is addressed to the bill’s two sponsors in the Washington legislature — Republican Rep. David Taylor, whose district includes the NSA facility in Yakima, and Democrat Luis Moscoso from the Seattle area. Meanwhile, a similar bill with the same title has just been introduced in the Tennessee legislature — taking aim at the NSA’s center based in Oak Ridge, Tenn. That NSA facility is a doozy: with several hundred scientists and computer specialists working to push supercomputers into new realms of mega-surveillance capacities. A new coalition, OffNow, is sharing information about model legislation. The group also points to known NSA locations in other states including Utah (in Bluffdale), Texas (San Antonio), Georgia (Augusta), Colorado (Aurora), Hawaii (Oahu) and West Virginia (Sugar Grove), along with the NSA’s massive headquarters at Fort Meade in Maryland. Grassroots action and legislative measures are also stirring in several of those states.
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  • “By working together to tackle the erosion of the Fourth Amendment presented by bulk data collection,” Kellegrew said, “people from across partisan divides are resurrecting the lost art of collaboration and in the process, rehabilitating the possibility of a functional American political dialogue denied to the people by dysfunction majority partisan hackery.” From another vantage point, this is an emerging faceoff between reliance on cynical violence and engagement in civic nonviolence.
  • Serving the warfare state and overall agendas for U.S. global dominance to the benefit of corporate elites, the NSA persists in doing violence to the Constitution’s civil-liberties amendments — chilling the First, smashing the Fourth and end-running the Fifth. Meanwhile, a nascent constellation of movements is striving to thwart the surveillance state, the shadowy companion of perpetual war. This is a struggle for power over what kind of future can be created for humanity. It’s time to stop giving juice to Big Brother.
Gary Edwards

Obama To Americans: You Don't Deserve To Be Free - Forbes - 1 views

www.forbes.com/...ns-you-dont-deserve-to-be-free

Obammunism Statism Ayn-Rand-Libertarian

shared by Gary Edwards on 02 Jan 14 - No Cached
  • President Obama’s Kansas speech is a remarkable document. In calling for more government controls, more taxation, more collectivism, he has two paragraphs that give the show away. Take a look at them. there is a certain crowd in Washington who, for the last few decades, have said, let’s respond to this economic challenge with the same old tune. “The market will take care of everything,” they tell us. If we just cut more regulations and cut more taxes–especially for the wealthy–our economy will grow stronger. Sure, they say, there will be winners and losers. But if the winners do really well, then jobs and prosperity will eventually trickle down to everybody else. And, they argue, even if prosperity doesn’t trickle down, well, that’s the price of liberty. Now, it’s a simple theory. And we have to admit, it’s one that speaks to our rugged individualism and our healthy skepticism of too much government. That’s in America’s DNA. And that theory fits well on a bumper sticker. (Laughter.) But here’s the problem: It doesn’t work. It has never worked. (Applause.) It didn’t work when it was tried in the decade before the Great Depression. It’s not what led to the incredible postwar booms of the ’50s and ’60s. And it didn’t work when we tried it during the last decade. (Applause.) I mean, understand, it’s not as if we haven’t tried this theory.
  • Though not in Washington, I’m in that “certain crowd” that has been saying for decades that the market will take care of everything. It’s not really a crowd, it’s a tiny group of radicals–radicals for capitalism, in Ayn Rand’s well-turned phrase. The only thing that the market doesn’t take care of is anti-market acts: acts that initiate physical force. That’s why we need government: to wield retaliatory force to defend individual rights. Radicals for capitalism would, as the Declaration of Independence says, use government only “to secure these rights”–the rights to life, liberty, property, and the pursuit of happiness. (Yes, I added “property” in there–property rights are inseparable from the other three.) That’s the political philosophy on which Obama is trying to hang the blame for the recent financial crisis and every other social ill. But ask yourself, are we few radical capitalists in charge? Have radical capitalists been in charge at any time in the last, oh, say 100 years?
  • I pick 100 years deliberately, because it was exactly 100 years ago that a gigantic anti-capitalist measure was put into effect: the Federal Reserve System. For 100 years, government, not the free market, has controlled money and banking. How’s that worked out? How’s the value of the dollar held up since 1913? Is it worth one-fiftieth of its value then or only one-one-hundredth? You be the judge. How did the dollar hold up over the 100 years before this government take-over of money and banking? It actually gained slightly in value.
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  • Laissez-faire hasn’t existed since the Sherman Antitrust Act of 1890. That was the first of a plethora of government crimes against the free market.
  • The typical Republican would never, ever say “the market will take care of everything.” He’d say, “the market will take care of most things, and for the other things, we need the regulatory-welfare state.” They are for individualism–except when they are against it. They are against free markets and individualism not only when they agree with the Left that we must have antitrust laws and the Federal Reserve, but also when they demand immigration controls, government schools, regulatory agencies, Medicare, laws prohibiting abortion, Social Security, “public works” projects, the “social safety net,” laws against insider trading, banking regulation, and the whole system of fiat money.
  • Even you, dear reader, are probably wondering how on earth anyone could challenge things like Social Security, government schools, and the FDA. But that’s not the point. The point is: these statist, anti-capitalist programs exist and have existed for about a century. The point is: Obama is pretending that the Progressive PGR -2.02% Era, the New Deal, and the Great Society were repealed, so that he can blame the financial crisis on capitalism. He’s pretending that George Bush was George Washington.
  • What Obama is indeed responsible for is the injustice of robbing some to (allegedly) benefit others. To the extent that cronyism, not the free market, sets income, that is an injustice to be laid at the statists’ door.
  • There is no such problem as “unemployment” under capitalism. Prices fall to clear the market. Twice the work force could be employed if average wages dropped in half. But that’s nominal wages; with a constant money supply, prices would also fall in half–or slightly more than that. This isn’t just theory. America’s workforce has grown steadily decade after decade, yet the standard of living has risen at the same time. I grant you that the rise has slowed as statist intervention has grown. Think of the phenomenal progress between, say 1900 and 1920 as compared to the minor progress from 1993 to 2013. Most of the progress in the last 20 years has come in the freest area of the economy: electronics and computing.
  • Gary Edwards on 02 Jan 14
     
    Harry Binswanger defends laissez-faire capitalism, using Ayn Rand Objectivism.
  • Paul Merrell on 02 Jan 14
     
    The major problem with Ayn Rand Objectivism is that it's an "ism." The Utopian ideal it is based on has never existed in reality and likely never will; its principles have never been tested. Moreover, I will argue that Binswanger is incorrect in arguing that the anti-capitalist phenomenon in America began with creation of the Federal Reserve; it dates much farther back. The economic basis for the Revolutionary War was largely the Crown-granted monopolies granted to the first great British "companies" (corporations), which had the effect of forcing North American colonists to pay monopoly rents for common goods and kept American ship owners from importing those goods from elsewhere to sell at a lower price. The Founding Fathers were strongly against privately-owned corporations and government-granted monopolies, with only two exceptions, copyrights for literary works and patents for inventions. The Constitution's prohibition against government-granted monopolies is implicit in its allowance for only two narrowly-defined types. The Founding Fathers' writings explicitly discussed the difference between "natural" monopolies and those created by government or anti-competitive conduct. During the early years of the nation corporations were permitted by the States, but only for public purposes, usually for public works such as bridges or roads for which there was a need to amass capital. These early American corporations were usually chartered only for the time required to complete the public work and to recover the invesment and a small profit, e.g., from tolls for using a bridge or road. Many of the early state constitutions explicitly limited the lifetime of corporations. However, such early opposition to corporations gradually eroded; corporate purposes were expanded, corporations were granted perpetual life, and the corporate form of doing business became much more widespread. Here, it is important to recognize that corporations are market artificialities c
Paul Merrell

Obama to Israel -- Time Is Running Out - Bloomberg View - 0 views

www.bloombergview.com/...-to-israel-time-is-running-out

war & peace Israel U.S. foreign policy Obama interview

shared by Paul Merrell on 12 Mar 14 - No Cached
  • When Israeli Prime Minister Benjamin Netanyahu visits the White House tomorrow, President Barack Obama will tell him that his country could face a bleak future -- one of international isolation and demographic disaster -- if he refuses to endorse a U.S.-drafted framework agreement for peace with the Palestinians. Obama will warn Netanyahu that time is running out for Israel as a Jewish-majority democracy. And the president will make the case that Netanyahu, alone among Israelis, has the strength and political credibility to lead his people away from the precipice. In an hourlong interview Thursday in the Oval Office, Obama, borrowing from the Jewish sage Rabbi Hillel, told me that his message to Netanyahu will be this: “If not now, when? And if not you, Mr. Prime Minister, then who?” He then took a sharper tone, saying that if Netanyahu “does not believe that a peace deal with the Palestinians is the right thing to do for Israel, then he needs to articulate an alternative approach." He added, "It’s hard to come up with one that’s plausible.”
  • Unlike Netanyahu, Obama will not address the annual convention of the American Israel Public Affairs Committee, a pro-Israel lobbying group, this week -- the administration is upset with Aipac for, in its view, trying to subvert American-led nuclear negotiations with Iran. In our interview, the president, while broadly supportive of Israel and a close U.S.-Israel relationship, made statements that would be met at an Aipac convention with cold silence.Obama was blunter about Israel’s future than I've ever heard him. His language was striking, but of a piece with observations made in recent months by his secretary of state, John Kerry, who until this interview, had taken the lead in pressuring both Netanyahu and the Palestinian leader, Mahmoud Abbas, to agree to a framework deal. Obama made it clear that he views Abbas as the most politically moderate leader the Palestinians may ever have. It seemed obvious to me that the president believes that the next move is Netanyahu’s.
  • “There comes a point where you can’t manage this anymore, and then you start having to make very difficult choices,” Obama said. “Do you resign yourself to what amounts to a permanent occupation of the West Bank? Is that the character of Israel as a state for a long period of time? Do you perpetuate, over the course of a decade or two decades, more and more restrictive policies in terms of Palestinian movement? Do you place restrictions on Arab-Israelis in ways that run counter to Israel’s traditions?”
  • Paul Merrell on 12 Mar 14
     
    Lengthy interview with Obama published March 2, 2014. Obama talks a much harder stance with Israel, conveying the view that the U.S. may not be able to continue protecting Israel diplomatically if the current negotiation between Israel and Palestine being brokered by John Kerry fails.  Get ready to put your money where your mouth is, Mr. President. Netenyahu has no intention to enter into an agreement with Palestine. He's served up one deal-breaker after another. And Netanyahu is trapped by his prior pandering to the Israeli right wing settlers in Palestine. 
Paul Merrell

West's antiquated unipolar world collides with the East's vision of a mulipolar future.... - 0 views

journal-neo.org/...s-vision-of-a-mulipolar-future

war & peace Ukraine banksters

shared by Paul Merrell on 21 Mar 14 - No Cached
  • For years the West has been cultivating a proxy political machine inside of Ukraine for the purpose of peeling the nation away from its historical and socioeconomic ties to Russia. The deep relationship between Western corporate-financier interests on Wall Street and in London and the opposition in Ukraine are best summarized in PR Weeks “Analysis: PR gets trodden underfoot as sands shift in Ukraine.” In the article, the involvement of some of the most notorious corporate lobbying firms on Earth, including Bell Pottinger and the Podesta Group, are revealed to have been involved in Ukraine’s internal affairs since the so-called “Orange Revolution” in 2004 – a coup admittedly orchestrated by the West and in particular the US government.  The article chronicles (and defends) the continuing, unabated meddling of the West up to and including the most recent turmoil consuming Ukraine.    PR Week’s article revealed that heavily funded networks propping up the proxy regime in Kiev are sponsored by “individuals and private companies who support stronger EU-Ukraine relations.” It is these Western corporate-financier interests, not Ukrainian aspirations for “democracy” and “freedom,” that kicked off the “Euromaidan” mobs in the first place – and will be the driving force that misshapes and deforms the regions of western Ukraine now overrun by the West’s proxies.  To the east in Ukraine, people are prominently pro-Russian, sharing closer cultural, linguistic, and socioeconomic ties to Russia as well as long historical parallels. They have welcomed moves by Russia to counter the coup in Kiev and protect eastern Ukraine from the corrosive influence that will grow as the West further entrenches itself.
  • With the vacant chair of deposed Ukrainian President Viktor Yanukovych still warm, the tentacles of Western corporate-financier interests have already wound themselves around Kiev and have begun to squeeze.  Chevron, which had signed a multi-billion dollar deal with Ukraine in November, 2013, was operating in the west of Ukraine, and alongside other Western energy giants such as ExxonMobil and Shell. The deals were part of President Yanukovych’s apparent gravitation toward the West and impending integration with the EU which was then suddenly overturned in favor with re-cementing ties with Russia. Western oil giants clearly saw the benefit of backing a putsch that would leave the western half firmly in the orbit of the US, UK, and EU. They can not only continue their business on the western edge of Ukraine, but expand their interests unabated across the country now that a capitulating, puppet regime sits in Kiev.   While Western big-oil plans to move in and siphon billions, the International Monetary Fund (IMF) is already planning deep cuts in social benefits as part of a staggering austerity regime to restructure financially the seized western region of Ukraine, and if possible, all of Ukraine proper.
  • RT reported in its article, “Pensions in Ukraine to be halved – sequestration draft,” that: The self-proclaimed government in Kiev is reportedly planning to cut pensions by 50 percent as part of unprecedented austerity measures to save Ukraine from default. With an “empty treasury”, reduction of payments might take place in March.  According to the draft document obtained by Kommersant-Ukraine, social payments will be the first to be reduced. The proxy regime set up in Kiev has already indicated its eager acceptance to all IMF conditions. The fate of western Ukraine will be no different than other members of the European Union preyed upon by the corporate-financier interests that created the supranational consolidation in the first place. The reduction of a multipolar Europe into a unipolar, supranational consolidation which can be easily and collectively looted is a microcosm of what the West’s Fortune 500 plan as part of their global unipolar order.  
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  • The natural resources, human capital, and geopolitical advantages found within the borders of Ukraine, will now become the natural resources, human capital, and geopolitical advantages of Chevron, BP, Monsanto, a myriad of defense contractors, telecom corporations, and other familiar brands seen marauding across the planet leaving in its wake destitution, socioeconomic disparity, and perpetual division they intentionally sow in order to protect their holdings from any form of unified or organized opposition.    No matter how obvious the West’s game may be to some, had Ukraine fallen entirely under the control of Western interests, a multitude of excuses could and would have been peddled to explain the unraveling of Ukrainian society in terms that would exonerate the corporate-financier interests truly driving the crisis. But Ukraine has not entirely fallen to the West, and because of that, the planned decimation of western Ukraine, its economy, and its sovereignty will stand out in stark contrast to the eastern region that has remained beyond the West’s reach and within the orbit of Russia’s multipolar vision of the future.  
Paul Merrell

Korematsu's Demise? | Just Security - 0 views

www.justsecurity.org/...korematsus-demise

surveillance state NYPD-intelligence litigation Korematsu

shared by Paul Merrell on 20 Oct 15 - No Cached
  • There’s a lot that’s remarkable about last Tuesday’s Third Circuit decision in Hassan v. City of New York, which Faiza Patel cogently summarized in her post last week. In a nutshell, Hassan involves a challenge to secret intelligence operations carried out by the New York Police Department (NYPD) over the years since September 11 that allegedly targets Muslim communities “based on the false and stigmatizing premise that Muslim religious identity ‘is a permissible proxy for criminality, and that Muslim individuals, businesses, and institutions can therefore be subject to pervasive surveillance not visited upon individuals, businesses, and institutions of any other religious faith or the public at large.'” The district court had tersely granted the City’s motion to dismiss both because it concluded the plaintiffs lacked standing and because, in the alternative, it held that the plaintiffs had failed to overcome the pleading burden articulated by the Supreme Court in Iqbal. But the Third Circuit reversed on both fronts, holding that the plaintiffs’ allegations, if true, were more than enough to establish both that they had suffered an injury in fact sufficient to satisfy Article III standing, and that their equal protection and First Amendment claims were sufficiently plausible to satisfy Iqbal. To be sure, the Third Circuit’s decision is interlocutory — coming at a very preliminary stage in the litigation. But what I want to suggest in the post that follows is that, as much as any other post-September 11 judicial decision, Hassan represents the full-throated repudiation of the Supreme Court’s infamous World War II-era ruling in Korematsu v. United States that has been so long in coming — and so thoroughly overdue.
  • As I’ve written about before, Korematsu reflects two separate — but equally important — constitutional failures. The first failure was the internment policy itself, which we now know (and which the US government knew at the time) to have been a completely unnecessary — if not hysterical — overreaction to hyperbolic and (after Midway, at least) categorically overstated fears of a Japanese invasion of the West Coast. By itself, the camps were a dark stain on the history of civil liberties in the United States — albeit one of many, alas. But the second failure was, historically, the far more significant and unique one — the Supreme Court’s conscious constitutional rationalization of the internment policy, based upon a combination of naïveté on the Justices’ part and the affirmatively misleading (if not downright disingenuous) briefing by the federal government. As Justice Robert H. Jackson understood — and forcefully articulated — in his Korematsu dissent, the real violence to the “rule of law” resulting from the camps was thus not the underlying policy, but rather its validation by the Supreme Court. In his words, “a military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution.”
  • But we’ve struggled somewhat with the second constitutional failure. The courts have repudiated Korematsu’s conviction; the Office of the Solicitor General has confessed error for its role in perpetuating the government’s misleading case before the Supreme Court; and scholars have suggested that Korematsu itself has become part of the “anti-canon” — the class of Supreme Court decisions so reviled that they are cited, if at all, in support of the wrongness of their holdings. But Korematsu itself remains on the books, as do broader concerns that courts are still vulnerable to Korematsu — style reasoning, i.e., that the need to protect national security might provide legal justification for government conduct that would otherwise be unjustifiable. Indeed, one need look no further than the ongoing debate over the SSCI’s torture report for evidence of the Korematsu mentality being alive and well.
  • ...2 more annotations...
  • That’s why I find the Third Circuit’s analysis in Hassan so significant — not because it allows this particular civil suit to go forward, but because it does so based upon an explicit (and conscious) rejection of Korematsu — style legal reasoning. As Judge Ambro explains, “No matter how tempting it might be to do otherwise, we must apply the same rigorous standards even where national security is at stake. We have learned from experience that it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights.” And applying the strict judicial scrutiny that is triggered by government action deemed to be intentionally discriminatory on the basis of religious affiliation, the court proceeds to hold that the NYPD lacked a sufficiently compelling justification for such discriminatory treatment, because even if abstract claims of security necessity could be a compelling government interest, the NYPD’s alleged policy was far too overbroad to survive the narrow tailoring required by strict scrutiny. Thus, quoting directly from Justice Jackson’s Korematsu dissent, Judge Ambro closed his opinion by noting that “Our job is judicial. We ‘can apply only law, and must abide by the Constitution, or [we] cease to be civil courts and become instruments of [police] policy.'”
  • Faiza’s post provides far more detail on the specifics of the Third Circuit’s analysis, and the opinion itself is worth a read. For present purposes, though, it’s this mentality that I find so refreshing — that even when the government invokes the specter of September 11 and the need to prevent future acts of terrorism, courts will not abdicate their responsibility to scrutinize the government’s justifications with care, and to be especially wary of overbroad government programs carried out under the broad guise of “necessity.” Hassan certainly isn’t the first example of this kind of principled judicial decisionmaking in a post-September 11 counterterrorism suit, but it is the one that, at least in my view, most directly confronts — and rejects — the kind of deferential judicial review that was responsible for the second constitutional failure in Korematsu, and all of the pain that followed.
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