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The Washington Post reports:

Attorney General Eric H. Holder Jr. on Monday plans to provide the most detailed account to date of the Obama administration’s legal rationale for killing U.S. citizens abroad, as it did in last year’s airstrike against an alleged al-Qaeda operative in Yemen, officials said. . . . his speech Monday will mark a new and higher-profile phase of the administration’s campaign to justify lethal action in those rare instances in which U.S. citizens, such as New Mexico-born Anwar al-Awlaki, join terrorist causes devoted to harming their homeland.
But when my organization, the Government Accountability Project, (and other civil liberties groups) request the legal memo justifying the killing of al-Awlaki from the Office of Legal Counsel (OLC), OLC maintains that the "existence or non-existence" of the memo is classified.

To review the Justice Department's completely ridiculous and indefensible position on the assassination memo:

*Days after the Obama administration engages in the targeted killing of an American citizen without due process, anonymous "administration officials" leak the existence of the legal memo rationalizing the assassination to the Washington Post.  

*When the "don't worry, we've got a legal memo" excuse fails to satisfy civil libertarians questioning the expansion of Executive power to killing American citizens without affording a bunch of fundamental Constitutional rights (due process, jury trials, right to confront accusers, etc.), details of the memo appeared on the New York Times front page, including when the memo was written, who authored the memo, the memo's legal reasoning, and even the memo's number of pages in the memo.

*Now, the Attorney General is going to give a public speech at Northwestern University Law School important enough to warrant more anonymous leaks to WaPo further detailing the "logic" of assassinating Americans.

Nonetheless, the Obama administration expects the public to believe that even revealing the "existence or non-existence" of the memo will harm national security.

So, the memo might not exist, but we know it is about 50 pages long, as if it is supposed to provide some comfort that the Justice Department will at least type out a few thousand words before sending a drone to kill Americans.

The absolute absurdity of Holder speaking publicly about a classified - possibly non-existent (as if any of us are naive enough to buy that response) - memo while the Justice Department claims it will harm national security to release the memo fits nicely with the rest of the Obama administration's schizophrenic policy on government transparency. Josh Gerstein of Politico reported on "President Obama's muddy transparency record:"

• Administration lawyers are aggressively fighting FOIA requests at the agency level and in court — sometimes on Obama’s direct orders. They’ve also wielded anti-transparency arguments even bolder than those asserted by the Bush administration.

• The administration has embarked on an unprecedented wave of prosecutions of whistleblowers and alleged leakers — an effort many journalists believe is aimed at blocking national security-related stories. “There just seems to be a disconnect here. You want aggressive journalism abroad; you just don’t want it in the United States,” ABC News correspondent Jake Tapper told White House press secretary Jay Carney at a recent briefing for reporters.

• In one of those cases, the Justice Department is trying to force a New York Times reporter to identify his confidential sources and is arguing that he has no legal protection from doing so.

• Compliance with agencies’ open-government plans has been spotty, with confusing and inaccurate metrics sometimes used to assess progress. Some federal agencies are also throwing up new hurdles, such as more fees, in the path of those seeking records.

• The Office of Management and Budget has stalled for more than a year the proposals of the chief FOIA ombudsman’s office to improve government wide FOIA operations.

Not exactly what is expected from an administration claiming to be "the most open and transparent in history."

The Obama administration has revealed what it wants to reveal and concealed the rest, too often under the specter of harm to "national security." This brand of cafeteria government openness is more than just frustrating to FOIA requesters. It endangers a democratic society - which relies on an informed public - by reducing the public's information to pro-government talking points and Attorney General stump speeches at law schools.
 

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Comment Preferences

  •  Tip Jar (19+ / 0-)

    My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

    by Jesselyn Radack on Mon Mar 05, 2012 at 06:01:46 AM PST

  •  Anyone who associates with a terrorist doesn't (4+ / 0-)

    deserve "due process". Just ask the Bush administration. Or the Obama administration. Or their supporters.

    Habeus corpus is "quaint".

    This, too, shall pass. Just like the last global ecological cataclysm. C'est la vie, dude. Take a chill pill, recite the serenity prayer, go with the flow and the moderates into that "goodnight".

    by Words In Action on Mon Mar 05, 2012 at 06:20:14 AM PST

    •  The Obama administration's assassination memo (8+ / 0-)

      followed Bush-era logic:

      The approximately 50-page memo was finished around June 2010, but apparently oral permission was given beforehand to kill al-Awlaki. (Does this ring any bells?  Justice Department Office of Legal Counsel (OCL) memos completed after-the-fact to justify extremely questionable conduct?) Also like the Bush memos, this memo does not bother to independently analyze the quality of the evidence against the target, but rather relies on an expansive unitary executive theory.

      The justifications:

      1) Al-Alwaki was taking part in the war between the United States and al Qaeda and posed a significant threat to Americans--though he never picked up arms against the U.S.;

      2) Yemeni authorities were unable or unwilling to stop him--which is contradicted by Yemen's bragging that they gave us information to geo-locate him that was precised enough for a drone attack;

      3) Al-Alwaki had evolved from being a "propagandist" to playing an "operational role" in al Qaeda--an assertion made for the first time ever by Obama after we killed him;

      4) he was a "co-belligerant" (another Bush term for "enemy combatant"); and, taking a page directly from John Yoo,

      5) the Authorization to Use Military Force against al Qaeda that Congress enacted shortly after 9/11 allowed this because al-Awlaki was a lawful target in the armed conflict.

      My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

      by Jesselyn Radack on Mon Mar 05, 2012 at 06:27:37 AM PST

      [ Parent ]

  •  It seems to me (3+ / 0-)

    that if they are unwilling to produce the legal memos, we have to assume they don't exist. Hence, they are in violation of the Constitution (they are anyway) and should be prosecuted as such. We have to put a stop to this criminal government that we have and which is being propagated across administrations now.

    The Universe is strange enough, you don't have to add hocus pocus

    by rsie on Mon Mar 05, 2012 at 06:34:00 AM PST

  •  perhaps it's time for a new "church commission" (1+ / 0-)
    Recommended by:
    aliasalias

    to study how the restraint on government sponsored assassinations has failed so miserably.

    i'm part of the 99% - america's largest minority

    by joe shikspack on Mon Mar 05, 2012 at 07:38:32 AM PST

    •  Bush did say the 'constitution is just a piece of (1+ / 0-)
      Recommended by:
      BradyB

      paper'.
      Apparently the USA  can kill anyone anywhere in the world and terrorize populations with Predator Drones regardless of their circumstances(weddings, funerals, etc.).

      http://tpmmuckraker.talkingpointsmemo.com/...

      The Obama administration believes that executive branch reviews of evidence against suspected al-Qaeda leaders before they are targeted for killing meet the Constitution’s “due process” requirement.
      (that is not from The Onion)
      Hina Shamsi of the ACLU said ahead ahead of Holder’s speech that the question was whether Holder would offer “meaningful transparency both about the legal standards that the Obama administration uses to determine who can be killed as well as basic facts about who can be targeted.”

      Daphne Eviatar of Human Rights First called the question of whether al-Awlaki was a U.S. citizen “sort of a red herring.”

      “You cannot arbitrarily kill individuals that you decided secretly are your enemies, even if they are U.S. citizens,” Eviatar said. “It’s not as if due process only applies to U.S. citizens. The bigger question is what made al-Alwaki targetable, was he an operational leader of al-Qaeda with whom were were at war?”

      (emphasis mine)

      Of course missing in all this is the death of al-Awaki's son a few weeks later, and all the other unmentioned casualties of the Predator Drone attacks.

      Bombs away, just remember to have some scalps about which you can boast. Apparently they are the only ones which count.

      without the ants the rainforest dies

      by aliasalias on Mon Mar 05, 2012 at 02:49:23 PM PST

      [ Parent ]

  •  Ayers (0+ / 0-)

    During the campaign, I scoffed at the whole Ayers pseudo-issue.

    It is interesting, though, to note that Ayers, someone who literally bombed government buildings, was given a fair trial, so fair in fact that the government decided to drop charges due to government misconduct during the investigation. This fair trial then led to his chance at redemption.. which led to this same admitted terrorist being given Chicago's Citizen of the Year award.

    Would a William Ayers of today be given a fair trial? If the government was guilty of misconduct during the investigation, would they drop charges? Or would Obama give himself the right to simply kill him with no trial at all..

  •  Making the Constitution Disappear (1+ / 0-)
    Recommended by:
    aliasalias

    This Administration has accelerated the erosion of the Constitution as the Law of the Land and even more egregious given that President Obama used to teach constitutional law at the University of Chicago Law School as a Senior Lecturer. The enshrined rights of due process and having actual evidence presented in court against the accused are fast disappearing.

    On top of this 'over the top' extra-constitutional state sponsored assassination instrument of our foreign policy, executive branch immunity is also now invoked in neither denying or confirming the existence of a secret 'memo' to cover the killing of someone that is taken out with extreme prejudice. Yet apparently someone anonymously 'leaked' that the memo does exist, but it's a state secret to reveal it!

    All Americans who are prosecuted under the law are entitled to due process under the Constitution, no matter what their alleged crime. It does not matter where they are.

    It is the height of hypocrisy to hide behind the subterfuge of the Constitution and then use the mantle of national security and secrecy to reclassify an American and justify their assassination because it's just too messy and inconvenient to bring them to justice.

    Historical note - Why didn't we just shoot all the Germans in cold blood after WWII, given the nature of their high crimes against humanity? Weren't they already obvious criminals? Why did we even bother holding the Nuremberg trials?

    We have gone from proclaimed openness and transparency to continuing and persistent secrecy as well as increasing opacity.

    Seems the Constitution has gotten in the way of national security and would cause harm to our country if followed. If the Constitution poses such a threat, why doesn't the Administration just declare it null and void?

    How convenient.

  •  Holder is applying lipstick to the invisible pig (1+ / 0-)
    Recommended by:
    Paolo

    without the ants the rainforest dies

    by aliasalias on Mon Mar 05, 2012 at 10:16:29 AM PST

  •  I am not a Lawyer... (1+ / 0-)
    Recommended by:
    aliasalias

    My background is in Neuroscience and Computer Science.  So I may be completely off with what I am about to say.  Please forgive me if what follows is laughably ignorant.

    Doesn't a System of Laws need to come from some set of First Principles, much like Philosophy or Mathematics?  And for US Law in particular, aren't those First Principles the Constitution and its Amendments?

    If that is the case, then wouldn't an act that is clearly in violation of one of those Principles (e.g. the 5th Amendment with respect to al-Awlaki) be deemed wrong no matter how convoluted a Legal Theory one presents?

    Or am I just completely wrong here imagining how our System of Laws has been constructed.

  •  thnx for the Diary which I'll post on FB to go (1+ / 0-)
    Recommended by:
    notcaesar

    with the other reports of the latest 'it's OK if the Prez does it', by AG Holder.
    If this administration wasn't so secretive maybe more people would get interested, or at least the excuse of not knowing what was being done in their names shouldn't hold water.

    http://www.politico.com/...

    “Obama is the sixth administration that’s been in office since I’ve been doing Freedom of Information Act work. … It’s kind of shocking to me to say this, but of the six, this administration is the worst on FOIA issues. The worst. There’s just no question about it,” said Katherine Meyer, a Washington lawyer who’s been filing FOIA cases since 1978. “This administration is raising one barrier after another. … It’s gotten to the point where I’m stunned — I’m really stunned.”
    David Sobel, senior counsel at the Electronic Frontier Foundation, said that “despite the positive rhetoric that has come from the White House and the attorney general, that guidance has not been translated into real world results in actual cases. … Basically, the reviews are terrible.”
    (emphasis mine)

    without the ants the rainforest dies

    by aliasalias on Mon Mar 05, 2012 at 03:13:53 PM PST

  •  This is why I don't come to dKos anymore (4+ / 0-)
    Recommended by:
    BradyB, notcaesar, Paolo, happyrabo

    Hundreds of people talking about Rush Limbaugh.

    Our President killing Americans and asking us to just trust him and nobody cares......

    Oh Yeah? Go Friend Yourself!

    by roguetrader2000 on Mon Mar 05, 2012 at 06:12:24 PM PST

    •  Just logged in (2+ / 0-)
      Recommended by:
      Paolo, happyrabo

      to rec your comment, roguetrader.  I was checking in on the ol' DK just to see if anybody had posted about the latest creepiness from this dangerous administration -- thank you, Jesselyn! -- and found the usual jerk-off circle obsessed with people like Rush.  Why interrupt such fun by pointing to the support here for the most powerful deceiver on the planet, who goes on killing, killing, killing with impunity...

      "All day long I felt like smashing my face in a clear glass window, but instead I went out and smashed up a phone booth round the corner." --Yoko Ono

      by notcaesar on Mon Mar 05, 2012 at 07:40:36 PM PST

      [ Parent ]

    •  absolutely... (1+ / 0-)
      Recommended by:
      happyrabo

      like notcaesar before me I agree completely and had to log in (for the first time in ages) to post this.

      I was just reading elsewhere about Holder's insane, disingenuous, and criminal speech and came here to see what discussion there was and only found 20 or 30 anti-Rush diaries.

      So: call a woman a "slut" and all hell breaks loose here (mind you, I'm not defending Rush in the slightest)

      But: Holder defends Obama's "right" to murder people without trial or any due process and the DKos community: crickets...

      Shocking. I saw Alan Grayson on Firedoglake the other day saying something like "This is the one place that has principles" and comparing FDL's and DK's responses to NDAA and Obama's "non-assassinations" (because he says they aren't) I'd have to agree.

      She said that she was working for the ABC News
      It was as much of the alphabet as she knew how to use

      by Paolo on Mon Mar 05, 2012 at 11:57:27 PM PST

      [ Parent ]

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