UN Special Rapporteur Condemns America’s Killer Drones

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One of last Friday’s big stories somewhat lost in the hustle and focus on the BP Gulf oil disaster and the holiday weekend concerned the continuing outrage of the US drone targeted assassination program. Specifically, Charlie Savage’s report at the New York Times that the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, was expected to issue a report calling on the United States to stop Central Intelligence Agency drone strikes thus “complicating the Obama administration’s growing reliance on that tactic in Pakistan”.

Today, the report is out, and Charlie Savage again brings the details in the Times:

A senior United Nations official said on Wednesday that the growing use of armed drones by the United States to kill terrorism suspects is undermining global constraints on the use of military force. He warned that the American example will lead to a chaotic world as the new weapons technology inevitably spreads.

In a 29-page report to the United Nations Human Rights Council, the official, Philip Alston,the United Nations Special Rapporteur on extrajudicial executions, called on the United States to exercise greater restraint in its use of drones in places like Pakistan and Yemen, outside the war zones in Afghanistan and Iraq. The report — the most extensive effort by the United Nations to grapple with the legal implications of armed drones — also proposed a summit of “key military powers” to clarify legal limits on such killings.

In an interview, Mr. Alston, said the United States appears to think that it is “facing a unique threat from transnational terrorist networks” that justifies its effort to put forward legal justifications that would make the rules “as flexible as possible.”

Here is Alson’s official report.

Interestingly, Alston’s report comes hot on the heels of the news the biggest get yet for the Obama drone assassination program, Al-Qaida Number Three (or at least the latest Number Three) Mustafa Abu al-Yazid. But Alston, although indicating that al-Yazid migh could be distinguished because of the direct al-Qaida status, nevertheless expressed reservations even is such situations.

For example, it criticized the United States for targeting drug lords in Afghanistan suspected of giving money to the Taliban, a policy it said was contrary to the traditional understanding of the laws of war. Similarly, it said, terrorism financiers, propagandists and other non-fighters should face criminal prosecution, not summary killing. Read more →

The NY Times, Elena Kagan and Batson

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The New York Times has an article up that will appear in the front section of Wednesday’s print edition decrying the fact that racial selection and exclusion still maintain in jury selection for trials in the South.

Arguments like these were used for years to keep blacks off juries in the segregationist South, systematically denying justice to black defendants and victims. But today, the practice of excluding blacks and other minorities from Southern juries remains widespread and, according to defense lawyers and a new study by the Equal Justice Initiative, a nonprofit human rights and legal services organization in Montgomery, Ala., largely unchecked.
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While jury makeup varies widely by jurisdiction, the organization, which studied eight Southern states — Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee — found areas in all of them where significant problems persist. In Alabama, courts have found racially discriminatory jury selection in 25 death penalty cases since 1987, and there are counties where more than 75 percent of black jury pool members have been struck in death penalty cases.
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The Equal Justice Initiative study argues that jury diversity “is especially critical because the other decision-making roles in the criminal justice system are held mostly by people who are white.” In the eight Southern states the study examined, more than 93 percent of the district attorneys are white. In Arkansas and Tennessee, all of them are white.

Race based selection and exclusion in the formation and empanelment of juries is prohibited, and rightly so. It is considered improper, unethical and a violation of duty to the court, bar and public. And rightfully so. There mere inference of it, as is made clear by the numerous instances discussed in the NYT article can bring strong questions of propriety, especially for representatives of the people, i.e. prosecutors. And, as the Equal Justice Initiative points out, the systematic exclusion of people of color from public leadership roles, like prosecutors, is just as problematic and disgraceful.

It is a righteous thing the New York Times has emphasized and drawn attention to the depressing report by the Equal Justice Initiative on racial exclusion in the law. Which makes it all the more distressful that the famed Gray Lady of the Times never evinced the same concern about analogous inferences which could just as easily be drawn about Elena Kagan’s record of faculty hiring at Harvard Law School.

First raised by Duke Law Professor Guy Uriel Charles, and noted by other bloggers like Glenn Greenwald and yours truly (but never substantively addressed or reported by the New York Times or other major media), Kagan has a record that puts the examples in the New York Times article on Southern jury biases to shame. From Professor Charles:

But what about people of color? How could she have brokered a deal that permitted the hiring of conservatives but resulted in the hiring of only white faculty? Moreover, of the 32 new hires, only six seven were women. So, she hired 25 white men, six white women, and one Asian American woman. Please do not tell me that there were not enough qualified women and people of color. That’s a racist and sexist statement. It cannot be the case that there was not a single qualified black, Latino or Native-American legal academic that would qualify for tenure at Harvard Law School during Elena Kagan’s tenure. To believe otherwise is to harbor troubling racist Read more →

BP’s LMRP: Claws, Craws, Saws and Jaws

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As you undoubtedly know by now, BP has failed miserably at every “fix” they have attempted so far. There is growing evidence of what a total sham exists in the craven use by BP of any number of subsidiaries to insulate itself from criminal and civil liability.

But right now the focus is on the ongoing LMRP attempt that BP now is warning could drag on from four days to a week. Many of you have been keeping up the monitoring of this back on the previous Top Hat and Tails: BP Has Yet Another “Solution” thread from Sunday. Please continue that discussion and reporting here.

One other thing I would like to point out; despite making a big dog and pony show of its commitment to speak with a single voice, Thad Allen, and quit making a media show of parading a series of Cabinet Officers down to the Gulf in a vain attempt to look like they are on top of things, the Obama Administration is …. wait for it …. making a media show of sending Attorney General Eric Holder down to the Gulf to make it look like they are on top of things. From Reuters:

Attorney General Eric Holder will survey the damage from the Gulf Coast oil spill on Tuesday and meet with federal prosecutors and state attorneys general, the Justice Department said on Monday.
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After a tour and briefing by the U.S. Coast Guard, Holder will meet with the state attorneys general from Louisiana, Alabama and Mississippi as well as U.S. attorneys from those states. Holder is also scheduled to speak to reporters in New Orleans.

The Justice Department has already demanded that the companies involved in the spill, including BP Plc, Transocean Ltd and Halliburton Co to preserve paperwork related to the accident that could become part of an investigation.

Experts have said the Justice Department was likely eyeing potential violations of the Clean Water Act, the Endangered Species Act, the Migratory Bird Treaty Act and the Refuse Act.

Notice what is missing from that last paragraph? There is no mention of prosecution under the negligent and/or reckless provisions of the Federal manslaughter law for the eleven deaths occurring on Deepwater Horizon as a result of BP’s willful and wanton conduct. The article mentions the deaths, but the Obama Administration and Holder DOJ never does. When it comes to talk of potential accountability, it is like the eleven deaths never happened to the Obama Administration. But hey, there are business interests and military fuel contracts they must protect and, clearly, that takes precedence for this Administration.

[Graphic – BP: Broken Promises. Logo design by Foye 2010 submitted as part of the Art For Change BP Logo Redesign Contest and used with permission]

BP Criminal Liability Working Thread

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Jason Leopold and I have both been going head on at the DOJ and Obama Administration over the issue of criminal treatment for BP and its actions in causing the Gulf disaster; see: here, here, here and here. One of the thoughts has regarded the DOJ’s ability to leverage one or both of the Federal criminal probation matters BP is currently operating under for past crimes.

One case was for the Alaska spill and BP was placed on criminal probation for three years starting in December 2007. The other case was a felony plea resulting from the Texas City Refinery explosion. Here is the plea agreement from the Texas City Refinery case and here is the concurrent statement of facts in support thereof.

The key to unlocking where we stand on this is understanding the exact relationship, and how clearly defined it is, between the parent company “BP Plc.”, the Texas City criminal defendant entity “BP Products North America Inc.” and the Alaska criminal defendant entity “BP Exploration (Alaska) Inc. Also, what exact names are on the permits and leases for the Macondo well project? How do all these fit together and can we pierce these alter egos and reasonably argue that the parent entity BP Plc. is legally, including criminally, liable for all?

So this is a crowdsourcing game for one and all that are interested in helping. If we can dissect this bull manure for the cute liability dodge sham it is, maybe we can gain some traction. Put any thoughts, links, cites and results of your work in the comments. Many of you are a lot better at drilling into corporate entities than I am, so thanks for the help!

BP Criminals In The Gulf

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The major media and rest of the country are catching on to what should have been patently obvious from the start, i.e. the discharge from the BP Deepwater Horizon catastrophe in the Mississippi Canyon offshore oilfield in the Gulf of Mexico is many factors larger than was being disclosed by either the relentlessly dishonest BP or the US government partnering with them in the disaster response. But while the public attention has been focused on the Top Kill well closure attempt and the mind numbing spill cam BP was finally forced to “allow” the public to see, hearings have been proceeding in not only Congress as covered by Emptywheel (see here and here), but also in Kenner Louisiana in front of a joint Coast Guard/MMS Federal inquiry board.

There have been startling revelations, especially out of the Kenner joint inquiry. The New Orleans Times Picayune is once again on a path to a Pulitzer for their disaster coverage and has given comprehensive coverage from Kenner and The Hill in Washington. Here are some items from the evidence set being adduced in Kenner and Congress:

The failed blowout preventer on the Deepwater Horizon oil rig had a hydraulic leak and a dead battery in one of its control pods, and testing in the hours before an April 20 explosion revealed that pressure in the well was dangerously out of whack.

While some data were being transmitted to shore for safekeeping right up until the April 20 blast, officials from Transocean, the rig owner, told Congress that the last seven hours of its data are missing and that all written logs were lost in the explosion.

Heavy drilling fluid was unconscionably replaced with lighter seawater against industry standards just prior to the blowout. Over heated objections by experts on the scene, BP management supervisors overruled drillers, and insisted on displacing the mud with seawater

The broken blow out preventer had not been inspected in over five years.

BP was in a severe economic and time crunch to finish the job quickly and were over six weeks behind schedule.

Immediately leading up to the explosion, BP used procedures that violated their own drill plan; and in spite of indications of a “very large abnormality,” kept testing until they got something they could disingenuously claim fulfilled the test.

BP management supervisors refused to run the comprehensive cement bond log test, a definitive test of the integrity of a well’s cement mandated by Federal Regulations if there are concerns with the results of negative and positive pressure Read more →

Greenhouse Eats Offal for Breakfast

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I was at a loss for words about Arlen “Never Know Whether He’s Haggis or Scrapple” Specter’s loss on Tuesday. In the Village, our tragic figures never have the glory of Shakespeare or the Greeks, but rather only the tawdriness of Hollywood, and the whole thing really just made me sad–sad about the state of our politics.

Luckily, Linda Greenhouse has said most of what I would have said and more. You really ought to read the whole thing–so I’m just going to quote the last few lines.

Having spent four years in Albany covering the New York Legislature early in my journalism career, I don’t regard myself as naïve about politicians, their foibles or their inevitable compromises. What I mean to convey by these reflections on Senator Specter’s trajectory is not surprise so much as sadness — sadness because he knew better.

Specter knew better–and even admitted as much, which is more than most of his colleagues do. But the ideology of Specter-for-Specter nevertheless always won out.

When Kagan Defenders Hurt Her Case

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Greg Craig, who was ousted from the Obama Administration because he’s too much of a purist on archaic things like the Constitution, reassures us that Elena Kagan is largely a “progressive” in the mold of the guy who ousted him.

The Flaming Hypocrisy Of US Terrorist Designation

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[Note Update Below]

On the fateful September 11, 15 men from Saudi Arabia, along with four others, perpetrated the attacks on the World Trade Center in New York. Since that time, the United States has invaded Afghanistan and Iraq in response with hundreds of thousands dead in the process. Saudi Arabia was not only never considered as an enemy, its citizens were spirited out of the country while US citizens were grounded.

Also since then a list longer than you can measure of countries and/or entities have been designated as global terrorists by the United States government. One of those so designated is al-Haramain of Oregon, who happens to be the root plaintiff in the critical litigation – pretty much the sole remaining substantial hope of challenging the incredible, illegal and unconstitutional executive power grabs by the Bush/Cheney Administration now hypocritically supported and adopted by the Obama Administration.

In spite of the fact there has never been any substantive link to terrorism, much less September 11, on the part of al-Haramain Oregon, the US government has steadfastly maintained it on the designated list. Now maybe al-Harmain was, and maybe it was not, even remotely involved in terrorism in any provable way; however the one irreducible fact is the US has never, despite repeated challenges, anted up any convincing factual support on the record for the allegation.

In fact, while al-Haramain Oregon is defunct and no longer exists in any form, the US has stood mute and even gone so far as to allow an US Federal Court to declare their wiretapping of al-Haramain’s attorneys, nearly a decade ago, patently illegal. All the while still maintaining the long defunct and non-existent charity on the specially designated terrorist list and so cocksure and adamant about it that the government has stated they cannot allow any judgment to be entered, much less settle, the al-Harmain litigation because they could not possibly think of a designated terrorist organization receiving one red cent from the US government.

Such is the seriousness of actions that could lead an entity to be designated a terrorist by the United States government. Well, except for the Saudis of course. And now, apparently, the Pakistani Taliban. From Mike Isikoff at Newsweek Declassified:

In light of evidence that the group known as the Pakistani Taliban was behind the attempted May 1 Times Square bombing, the Obama administration is “actively considering” designating it as a ”foreign terrorist organization” in the next few weeks —a move that would allow the U.S. government to freeze any assets belonging to the group and make it a federal crime Read more →

The Questions I Should Have Asked

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When you live in flyover country and have the opportunity to appear on cable, it lacks some of the niceties of the big city: no green room, no professional makeup artist, and sometimes you have to drive yourself to the studio through Detroit’s version of rush hour traffic (yeah, I know, no one works in this city anymore, but we’re on the rebound).

Which means you don’t get the same opportunity to compose your thoughts.

So here’s what I should have said when asked what two questions I’d ask Elena Kagan in a confirmation hearing:

  1. Do you think the President should be able to order the assassination of an American citizen with Predator drones with no due process?
  2. What sort of disclosure does your former employer Goldman Sachs owe its clients when it makes a massive bet that millions of Americans will lose their homes?

State Secrets Non-Compromise Compromise Architect to Replace Kagan

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The great news just keeps coming.

Remember the “new” state secrets policy DOJ announced last year? It basically amounted to a promise that the Attorney General would review any invocation of state secrets to make sure such an invocation was really really secret rather than just sort of secret but really embarrassing, along with a promise that an Inspector General (but not a court) would investigate in case of wrong-doing (at the time, some of the existing state secrets invocations had already been investigated by IGs). Here’s how I described the “new” policy when it was announced.

What the “new” state secrets policy appears designed to do is buy time and limit the legal battlefields on which the Administration tries to stave off a CIPA-like process.

Legislatively, it appears the “new” policy (and presumably some pressure on Leahy directly) has convinced Leahy, at least, to hold off on moving his legislation forward. He seems to be content to wait and see how this new policy plays out. Nadler, on the other hand, seems to want to push forward with legislation (so is Russ Feingold, but he’s not in the same position to push forward Senate legislation as Nadler is). So at the very least, Holder’s “new” policy will buy the Administration time before Congress tries to reel in executive power.

Then there’s Horn. Word is that Holder will use the “new” policy to withdraw the state secrets claim in one case, and by all appearances that one case will be Horn (I don’t know whether that means they will try to settle Horn, or whether they’ll just move forward with what amounts to a CIPA-like process without a state secrets claim behind it.)

Now of the three cases in question (Horn, al-Haramain, and Jeppesen), Horn is the one that was the biggest slam dunk legally to support a CIPA-like process (because of the fraud involved and the Circuit Court’s earlier limitation on the state secrets claim). It’s the one in which the Bush Administration’s claim to state secrets was most bogus. And it’s the least risky one to settle or litigate.

By withdrawing the claim of state secrets in Horn (if that is indeed what will happen), the Administration will avoid having the DC Circuit joining the 9th in supporting some kind of CIPA-process in state secrets, while still giving the Administration hopes of dismissing Jeppesen and al-Haramain based on state secrets.

In other words, this is all a big bureaucratic ploy to try to keep the Bush Administration’s illegal actions on extraordinary rendition and warrantless wiretapping secret.

Well, the guy Obama plans to replace Kagan with is the architect of this “smoke and mirrors” policy.

The White House is poised to name Don Verrilli, an associate White House counsel, as solicitor general after Elena Kagan is confirmed to the Supreme Court. Verrilli joined the Obama administration as an associate deputy attorney general, where he helped his close friend, Attorney General Eric Holder, craft the Justice Department’s new state secrets doctrine guidelines.

[snip]

Verrillii’s trial balloon appointment as SG will be viewed suspiciously by civil libertarians for his authorial role in the state secrets drama and for his record of fighting on behalf of industry against tech entrepreneurs.  But he’s got the trust of Holder, Bauer, and President Obama.

I can’t wait to see what Obama has in store next to whittle away at the rule of law.