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Executive Officials Make Mistakes

One of the most important questions here — perhaps the most important — is not what the legal standard is but who ultimately decides whether the standard is satisfied in any given case. Who decides that a particular person presents a threat sufficient to justify the government’s summarily killing him? The Justice Department contends that the Constitution permits this decision to be entrusted to an “informed high-level official” — with no judicial review before the killing or even after. This is wrong and dangerous.

[...] Even in the context of armed conflict, Justice Sandra Day O’Connor wrote in Hamdi v. Rumsfeld, the Constitution “most assuredly envisions a role for all three branches when individual liberties are at stake.”

As others have pointed out, there are good reasons for this. High-level executive officials, however “informed,” will make mistakes. Some of them will push the limits of their authority, and some of them will exceed it. The white paper doesn’t say by whom the high-level officials will be informed, or what it is that they will be informed of, but the possibility that executive agents will get the facts wrong is not one we should overlook. To understand the risk, one need only look to our experience with Guantanamo, where, on the orders of “informed high-level officials,” hundreds of men were imprisoned on the basis of evidence that turned out to be fabricated, unreliable or mistaken.

Hearing is today.
NDAA: February Hearing Over the Act Will Help Determine the Fate Of the Constitution

The NDAA has largely been ignored by the media, but it has not gone unchallenged. A group of progressive activists led by author Chris Hedges have challenged it in a lawsuit, Hedges v. Obama. The plaintiffs claim that Section 1021(b)(2) of the law allows for the U.S. government and military to be given ability to indefinitely imprison journalists, activists and human-rights workers based on vague allegations of "terrorism."

The lawsuit has had significant progress over the past few months. In a May hearing, Judge Katherine Forrest issued an injunction against the NDAA. However, Obama's lawyers appealed the injunction.  The appeal was dismissed by the same judge, who struck down the controversial provisions as unconstitutional on September 12, 2012, seeing legitimate fears in claims by the plaintiffs that they could face indefinite detention for exercising their First Amendment rights.

This was appealed yet again by the Obama administration, who wanted a grant of stay, claiming that the detention powers of the Authorization for Use of Military Force (AUMF) of 2001, which allowed the president to detain those who were involved in the 9/11 attacks and/or are members of Al-Qaeda or the Taliban, were similar to the NDAA’s Section 1021 powers. That stay was issued by Judge Raymond Lohier of the U.S. Court of Appeals for the 2nd Circuit, and lasts until February 6th, 2013. (It was initially supposed to be on September 28th, 2012.) In February, a three-judge appellate panel will hear the case.

All in all, the NDAA hearings on February 6th will be an important chapter in the history of the rule of law in America. Its draconian provisions are dangerous to the use of due process and habeas corpus in America, and it utterly violates the Constitution on many levels. The NDAA may have been drafted to "root out" terrorism, but it only serves to grant the president potentially dictatorial powers for the sake of national security. This, in turn, ultimately makes America more authoritarian and continuing the erosion of civil liberties since 9/11 and the declaration of the war on terror, a process which puts adherence to the Constitution in further jeopardy.

Daniel Ellsberg: NDAA Indefinite Detention Provision is Part of "Systematic Assault on Constitution"

A lawsuit challenging a law that gives the government the power to indefinitely detain U.S. citizens is back in federal court this week. On Wednesday, a group of academics, journalists and activists will present oral arguments in court against a provision in the National Defense Authorization Act, or NDAA, authorizing the military to jail anyone it considers a terrorism suspect anywhere in the world without charge or trial. In a landmark ruling last September, Judge Katherine Forrest of the Southern District of New York struck down the indefinite detention provision, saying it likely violates the First and Fifth Amendments of U.S. citizens. We’re joined by Daniel Ellsberg, a plaintiff in the case and perhaps the country’s most famous whistleblower. Ellsberg leaked the Pentagon Papers in 1971, exposing the secret history of the U.S. involvement in Vietnam.

[...]

DANIEL ELLSBERG: The judgment, again, granting an injunction, saying that these provisions of the law that will be argued and defended by—shamefully, by the Obama administration and by three U.S. senators, who will be claiming that the detention is constitutional and legal—her argument was that it was facially unconstitutional. And when I read her detailed argument, 112, taking each point of the prosecution over a period now of nearly a year—their evidence, their lack of evidence, their argument—taking each argument that this was constitutional and smashing it on this, I felt pride as an American. I thought, this is the American citizen that I fought for as a marine. This is a constitutional order, a rule of law, a judge, appointed by Obama, who’s willing to say that her boss was mistaken in claiming that this rule is compatible with our rule of law.

It really says to me, at last, I think, that President Obama, who was a constitutional teacher, like Professor John Yoo, Y-O-O, of Berkeley, who authored most of these torture memos in the first place—I think that, like Yoo, Obama has to be seen as either a rotten constitutional lawyer or a man who, like Yoo, believes that the Constitution simply does not bound an American prisoner in any way in an indefinite law of torture. And either way, I believe we have here impeachable offenses by all of the people arguing this case, including the three senators—McCain, others—who will be arguing today on this. We should be looking at Brennan and the other people connected with the torture program not in terms of confirmation hearings, but in terms of impeachment hearings and convictions.

[...]

DANIEL ELLSBERG: For talking to Jake Appelbaum, right here, who has been identified at one point, an earlier point, as a spokesperson from WikiLeaks. Bradley Manning right now is on trial in military court with the absurd and unconstitutional charge of aiding the enemy without any element of intent, merely that his information would get to Obama—I’m sorry, to Osama bin Laden or to al-Qaeda eventually, thus making it, in effect, a terrorist organization. But giving it to WikiLeaks is very like saying that WikiLeaks is the enemy he’s aiding and affecting.

Now, simply by associating with Jake, whom I’m proud to do and I’m learning from, or supporting WikiLeaks or Manning as I do, it’s very clear that my speech, my First Amendment activities in support of their activities, can be interpreted by the vague, broad terms of this unconstitutional 1021(b)(2) section of the National Defense Authorization Act as, quote, "substantial support to an organization associated with terrorism." These vague terms make it possible—really there’s no one at this table who could be exempt from some informed official, who we’ve now learned has the power to defend—to condemn us to death. And, of course, if you can do that, I’m sure they can feel quite easy about simply putting us in military custody like Bradley Manning, even though we’re not in the military.

NDAA: One Of the Most Dangerous Laws in Over a Century

“This is the final battle between the restoration of due process and the imposition of a military state.” — Chris Hedges

On Wednesday, the Second Circuit Court of Appeals will hear Hedges v. Obama, one of the most important civil liberties cases since 9/11. The plaintiffs, known as the “Freedom 7” claim that Section 1021 of the 2012 National Defense Authorization Act (NDAA) is unconstitutional, and violates the First and Fifth Amendments. The defendants, the Obama administration, claim it merely codifies existing law under the 2001 Authorization for Use of Military Force (AUMF) and does not apply to U.S. citizens.
[...]
These terms are so vague in fact, that the government could not even guarantee someone who wrote a book with one sentence, “I support the political goals of the Taliban,” would not be detained under the 2012 NDAA.

The over-broad nature of the 2012 NDAA, which expands the targeting profile of the 2001 AUMF from those directly connected with 9/11 to anyone that directly supports associated forces or puts the wrong words into a book, makes it one of the most dangerous laws since the civil war.

Chris Hedges could be right. This lawsuit, and other efforts to stop the NDAA, may truly be the last stand for what’s left of our Constitution.

Who was telling the truth in 2009 about whether or not John Brennan opposed the torture program?  Brennan doesn't have a good track record on truthtelling.  In fact he's got a terrible habit of serial lying.  Note that he also refuses to be interviewed in advance of the hearings.  I hope this is an honest hearing and that he is required to answer some serious questions under oath.
Brennan, once stung by waterboarding, now opposes

WASHINGTON — John Brennan, now President Barack Obama's nominee to be CIA director, sat quietly around a conference table at the agency's headquarters in Langley, Va., during briefings about the capture and waterboarding of key al-Qaida operative Abu Zubaydah.

Former and current U.S. intelligence officials who were part of those briefings say Brennan, then deputy executive director of the CIA's administrative arm, did not raise objections to the interrogation practices in those forums. They spoke on condition of anonymity because they are not authorized to discuss the top-secret meetings publicly.
[...]

But in his letter withdrawing his nomination, Brennan wrote that he'd been a "strong opponent" of the program. Throughout Obama's first term, Brennan added to the body of criticism of so-called enhanced interrogation techniques in his role as Obama's counterterrorism adviser.

[...]

Brennan declined to be interviewed, as is customary ahead of confirmation hearings.

Brennan was the CIA station chief in Saudi Arabia.
Riyadh Station Chief Operated Drone War from and for His Old Stomping Grounds

While the existence of a Saudi drone base has been reported before, the WaPo confirms tonight that the drone strike that took out Anwar al-Awlaki was launched, in part, from the base that no one has before liked to report on.

[...]

Couple that with Daniel Klaidman’s confirmation of something else that was obvious: John Brennan authorized signature strikes for use in Yemen’s civil war based on the personal entreaties of his old buddies (Klaidman says it was the Yemenis, but the more obvious candidate is the Saudis).

[...]

None of this is surprising. Some dirty fucking hippie reported it in real time.

Joan Walsh should ask herself this question too, IMHO.
When liberals ignore injustice
Why isn't there more outrage about the president's unilateral targeted assassination program on the left?

But Tesler found that the Obama effect worked the opposite way, too: African-Americans and white liberals who supported Obama became more likely to support policies once they learned the president did.

More than once I’ve worried that might carry over to bad policies that Obama has flirted with embracing, that liberals have traditionally opposed: raising the age for Medicare and Social Security or cutting those programs’ benefits. Or hawkish national security policies that liberals shrieked about when carried out by President Bush, from rendition to warrantless spying. Or even worse, policies that Bush stopped short of, like targeted assassination of U.S. citizens loyal to al-Qaida (or “affiliates”) who were (broadly) deemed (likely) to threaten the U.S. with (possible) violence (some day).

Those ugly parentheses are made necessary by Michael Isikoff’s exclusive report on the Obama administration “white paper” that justifies its unprecedented claim to the power to assassinate U.S. citizens without due process on foreign soil. The New York Times and the ACLU had sued to get the administration to release the Office of Legal Counsel’s opinion in the case of the targeted assassination of Anwar al-Awlaki by drone strike in Yemen last year. The administration fought that effort, but Isikoff was leaked a summary, “Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of Al-Qa’ida or An Associated Force.” It lays out a legal rationale far beyond anything the administration has claimed before.

At 98-years old, it doesn't sound like Kelber is an actual threat to Trumka's position, but his words, the words of the FDR era labor movement, might have an effect.   I wanted to excerpt more of this article but could not.  I think it is well worth reading the whole thing.  It's an easy read with short paragraphs.
Corporate Rule Has ‘Infected’ AFL-CIO Leadership, Labor Activist Contends

Kelber contends that under Trumka’s leadership, the AFL-CIO has failed to address the mounting threat against labor in the United States from the loss of bargaining rights to the refusal to adjust minimum wage standards to the push against implementing the “card check” union organizing system.

[...]

Kelber was at the forefront of the 1930s labor movement, editing two worker weeklies, organizing with the CIO and supporting the Newspaper Guild strike against management in New York City, which caused a 114-day shutdown of papers there.

Now 98, Kelber is frustrated with a movement that, he says, cannot accomplish a fraction of what it did 80 years ago.

[...]

“There’s no labor activist stepping forward to say these people are crooks,” Kelber continues. “They’re stealing the labor movement.”

Despite making remarks in the past that were critical of excessive executive pay, Trumka has seen a $90,000 increase in his yearly salary, which is now up to $272,000. His salary is guaranteed, which, Kelber argues, alleviates the incentive Trumka has to push key issues in Washington or make increasing membership a priority.

The nation’s unions lost 400,000 members last year, as the percentage of U.S. workers represented by a union fell to 11.3 percent, down from a peak of 35 percent in the mid-1950s. [...]  Obama “invites them for dinner at the White House and they love it,” Kelber notes. “That’s their reward.

Did the sequestration picture change with the latest developments?

The White House Office of Management and Budget released a memo on Tuesday warning federal agencies that furloughs and steep cutbacks may be necessary if lawmakers fail to reach a comprehensive debt-reduction deal by March 1.
[...]
The memo also told agencies to “identify the most appropriate means to reduce civilian workforce costs,” including with hiring freezes, by releasing temporary employees and through early retirement or voluntary separation incentives. In other words: Think hard about how to get rid of people.
[...]
President Obama also held a press conference Tuesday calling on lawmakers to pass a small combination of spending cuts and tax changes to add a few more months to the sequestration deadline.
To review, the Obama administration told federal agencies to prepare for the worst effects of sequestration, but the president almost simultaneously pleaded for a(nother) temporary out — Congress and the president already approved an extension of the sequestration deadline as part of the fiscal-cliff deal that came together just hours into the new year.





Action




Rebooting Computer Crime Law Part 1: No Prison Time For Violating Terms of Service

Representative Zoe Lofgren (D-CA) has started the conversation and advocacy groups like Demand Progress have joined us in working to fix the vague, dangerous and overly punitive sections of CFAA that were misused to persecute Aaron Swartz.  Please join EFF in calling on Congress to fix the glaring problems with CFAA by sending an email to Congress now.





Blog Posts and Tweets of Interest


Evening Blues

White Paper Cites John Brennan Speech Defending Import of Transparency, FOIA, Declassified OLC Memos

The Timing of the White Paper

White Paper Asserts Obama Administration May Kill Americans Without Due Process

What the White House Hasn't Said About Drones

10 Questions Congress Should Ask Killer Drone Policy Architect John Brennan

Memo explains administration's legal rationale behind targeted killings. Senate critics not soothed








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