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A Defense of Tyranny?

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I’m pretty fascinated by this attempt by one of John Cole’s readers to defend the Administration’s stance on assassinating US citizens. It’s fascinating and not a little disturbing, but it deserves a response, if only to clarify precisely what the problem with the Administration’s filing last Friday is.

The reader starts with this:

On Al-Awlaki, what’s your response to the argument that targeted killing of him is allowable, under international law, because he’s been designated by the US and the UN as an “active operational member of AQAP” and, as such, if and only if the US determines he presents an imminent threat, the US can take actions to defend itself against an attack (like, say, the Christmas bombing, in which there’s evidence he was involved in planning) by either capturing or killing him?

For starters, this question misrepresents what the suit tries to do. The suit readily admits that the government has the right to kill someone who presents an imminent threat. The plaintiffs are asking for the judge to prevent the government from killing Anwar al-Awlaki unless he is, in fact, an imminent threat.

Plaintiff seeks a declaration from this Court that the Constitution and international law prohibit the government from carrying out targeted killings outside of armed conflict except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury; and an injunction prohibiting the targeted killing of U.S. citizen Anwar Al-Aulaqi outside this narrow context. Plaintiff also seeks an injunction requiring the government to disclose the standards under which it determines whether U.S. citizens can be targeted for death. [my emphasis]

Moreover, John’s reader misstates the argument the government is making. They refuse to grant that the only legal basis they’d have for assassinating al-Awlaki would be because they had determined him to be an imminent threat and never once argue that he is an imminent threat, particularly not that he, personally, as opposed to AQAP more generally, is an imminent threat.

For example, even assuming for the sake of argument that plaintiff has appropriately described the legal contours of the President’s authority to use force in a context of the sort described in the Complaint,

In fact, as I have shown, the government refuses to lay out its entire argument for claiming it has the authority to target al-Awlaki.

Accordingly, although it would not be appropriate to make a comprehensive statement as to the circumstances in which he might lawfully do so, it is sufficient to note that, consistent with the AUMF, and other applicable law, including the inherent right to self-defense, the President is authorized to use necessary and appropriate force against AQAP operational leaders, in compliance with applicable domestic and international legal requirements, including the laws of war.

One thing is clear, though: the government is claiming to have the authority not only through international law (the “imminent threat”), but also the AUMF. But it’s not at all clear the AUMF does grant them that authority (and this is one reason why John’s reader’s appeal to the political branches is so problematic). AQAP was not included in the AUMF. No  one has ever claimed it had a role in 9/11, which is how the AUMF defines the opponent. The decisions on habeas cases have been mixed about whether attenuated connections like AQAP’s are strong enough to be included in the AUMF and because of it, legally detainable. John’s reader just ignores that the primary basis for which the government claims authority to kill al-Awlaki is the AUMF (even if they refuse to say whether AQAP is al Qaeda, or only affiliated with al Qaeda). But that basis is contested.

But let’s set aside the problems with the government’s claim to authority under the AUMF for the moment and focus instead on what John’s reader seems comfortable with: the “imminent threat.” John’s reader seems satisfied that al-Awlaki’s role in the Christmas day bombing makes him an imminent threat. There are two problems with that. First, we have a tradition in this country of requiring the government to prove the allegations it makes against people. Here’s how the government presents this allegation, in James Clapper’s public declaration.

Since late 2009, Al-Aulaqi has taken on an increasingly operational role in AQAP, including preparing Umar Farouk Adbulmutallab [sic], who attempted to detonate an explosive device aboard a Northwest Airlines flight from Amsterdam to Detroit on Christmas Day 2009, for his operation. In November 2009, while in Yemen, Abdulmutallab swore allegiance to the emir of AQAP and shortly thereafter received instructions from al-Aulaqi to detonate an explosive device aboard a U.S. airplane over U.S. airspace.

Particularly given the government’s reported belief, before the Nidal Hasan attack, that al-Awlaki’s activities extended only to First Amendment protected speech, we deserve to know how they determined that his activities since then have become operational. If we know that from classified intercepts, then the government can share them with the Court without disclosing them publicly. If we know that solely through Abdulmutallab’s interrogations, then we deserve to know the circumstances surrounding those interrogations, not least whether Abdulmutallab was promised he would not face the death penalty if he implicated al-Awlaki.

More importantly, we have means to do all this–to have a judge weigh the evidence to make sure the government’s allegations are true. That’s a trial. And for some reason, the government has chosen not to charge al-Awlaki with conspiracy in Abdulmutallab’s crime, and therefore chosen not to expose its evidence to the scrutiny of a judge. I wouldn’t necessarily have much reason to doubt the government’s claims about al-Awlaki, but the government loses a great deal of credibility when they choose not to avail themselves of the means to prove those allegations.

If the case against al-Awlaki is strong enough to kill him, then it ought to be strong enough to prove in a court.

And then there’s the other problem with the claim that al-Awlaki is an “imminent” threat: the timing.

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As Axe Slams Rahm from One Side, Greg Craig Slams from the Other

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I trust it’s not a coincidence that at the same time David Axelrod is skewering Rahm from within the White House, Greg Craig is getting picked up on a live mike (oops!) skewering him from the outside.

“The great thing about it, if Rahm goes to run for mayor, is that Eric survived,” Craig said, according to an audio recording of the Sept. 21 event.

The National Law Journal requested a copy of the recording from the law school, and the school provided one. The recording includes Craig’s speech and a question-and-answer session, as well as two and a half minutes of pre-speech banter between Craig and Trevor Morrison, a Columbia law professor who introduced Craig to the audience. They touched on Holder’s relationship with Emanuel and on the case of accused terrorist Ahmed Khalfan Ghailani.

As Craig suggests, Emanuel’s departure would mean Holder will have outlasted an internal rival with whom, according to news reports, Holder has repeatedly clashed on subjects like the venue for trying terrorism suspects. And it would mean Emanuel wouldn’t be around to attempt to force Holder out if tensions flared again.

[snip]

A questioner asked Craig why he left. Craig responded that he did so for “a number of different reasons,” and then he focused squarely on Emanuel.

“One of the reasons was that I did not get along with the chief of staff well,” Craig said, “and I think that the coordination between the White House counsel and the chief of staff is vital to the success of the working of the White House.”

Though, I’d challenge Craig: What good has Holder’s outlasting Rahm done after Friday’s audacious claim to unlimited power? There’s no indication at all that Rahm was pushing Holder to submit a motion basically saying, “the President can kill any American, and he doesn’t have to show the Courts any justification for why, which is good because we can’t even make a good argument to support it.” I mean, sure, Rahm had a big hand in pissing away Obama’s bid to moral standing. But Holder’s DOJ has simply embraced the disdain for law that Rahm handed them and run with it, all on their own now.

Obama Doesn’t Know Why the Fuck He’s Entitled to Kill Al-Awlaki, He Just Is, Damnit

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The most striking aspect of the government’s motion to dismiss the ACLU/CCR lawsuit challenging the use of targeted killing is that the government does not commit to the basis for its authority to kill an American citizen like Anwar al-Awlaki with no review.

This starts as soon as the filing tries to lay the ground work for unchecked authority under the AUMF. It doesn’t commit to whether Al Qaeda in the Arabian Peninsula is part of al Qaeda itself, or is instead just closely enough associated to count under the AUMF.

The United States has further determined that AQAP is an organized armed group that is either part of al-Qaeda, or is an associated force, or cobelligerent, of al-Qaeda that has directed armed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda that the Supreme Court recognized in Hamdan v. Rumsfeld, 548 U.S. 557, 628-31 (2006).

[snip]

Furthermore, as noted above, the Executive Branch has determined that AQAP is an organized armed group that is either part of al-Qaeda or, alternatively, is an organized associated force, or cobelligerent, of al-Qaeda that has directed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda that the Supreme Court has recognized (see Hamdan, 548 U.S. at 628-31). [my emphasis]

Though note the gigantic slip here: the AUMF only declares war against those “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons” (when AQAP didn’t exist in its current form), not those who have attacked us since. This “either/or” statement only claims that AQAP is part of the same war, not that it had any role in 9/11, so it’s totally bogus in any case, even without the betrayal of their lack of confidence in both of these claims with the either/or construction.

Presumably to tie AQAP more closely to the AUMF, the government then notes that the Treasury declared AQAP a terrorist organization (not noting that that happened eight months after al-Awlaki was first targeted for assassination), which in turn relies upon a Presidential declaration issued roughly around the same time as the AUMF.

Based in part on this information, on July 16, 2010, the U.S. Department of the Treasury issued an order designating Anwar al-Aulaqi a “Specially Designated Global Terrorist” (SDGT) for, inter alia, “acting for or on behalf of al-Qaeda in the Arabian Peninsula (AQAP) . . . and for providing financial, material or technological support for, or other services to or in support of, acts of terrorism[.]” Designation of ANWAR AL–AULAQI Pursuant to Executive Order 13224 and the Global Terrorism Sanctions Regulations, 31 C.F.R. Part 594, 75 Fed. Reg. 43233, 43234 (July 23, 2010).1

1 This designation was issued pursuant to the President’s authority under the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701-06. After the terrorist attacks of September 11, 2001, the President issued Executive Order No. 13224 (“E.O. 13224”), 66 Fed. Reg. 49,079 (2001), effective September 24, 2001, declaring a national emergency with respect to the “grave acts of terrorism . . . and the continuing and immediate threat of further attacks on United States nationals or the United States.” See E.O. 13224, Preamble. The Secretary of State previously designated AQAP as a Foreign Terrorist Organization on January 19, 2010, pursuant to her powers under the Antiterrorism and Effective Death Penalty Act, 8 U.S.C. § 1189. (See http://www.state.gov/r/pa/prs/ps/2010/01/135364.htm).

Gosh! That’s almost like AQAP was included in the AUMF back in 2001, the reliance on a declaration made just days after the AUMF itself.

Except it’s not. (And the argument itself presumes that anyone Timmeh Geithner wants to call a terrorist can be killed with no due process, whether or not they have a tie to Al Qaeda.)

You can tell DOJ’s lawyers recognize this to be a gaping hole in their argument, because they repeatedly claim–without providing any evidence–that they have been authorized by “the political branches” to use all means against the threat that Al-Awlaki is part of.

In particular, plaintiff’s requested relief would put at issue the lawfulness of the future use of force overseas that Executive officials might undertake at the direction of the President against a foreign organization as to which the political branches have authorized the use of all necessary and appropriate force.

[snip]

More broadly, the Complaint seeks judicial oversight of the President’s power to use force overseas to protect the Nation from the threat of attacks by an organization against which the political branches have authorized the use of all necessary and appropriate force, in compliance with applicable domestic and international legal requirements, including the laws of war. See Authorization for Use of Military Force (AUMF), Pub. L. No. 107 40, 115 Stat. 224 (2001) (Joint Resolution of Congress signed by the President). [my emphasis]

Last I checked, only one political branch has the authority to declare war, Congress. Not multiple political branches. That the Administration has even invoked political branches, plural, for their authority to use force–basically arguing “we and that rump organization better known as Congress have authorized this, so there!”–demonstrates the audacity of their claim to self-authorize using unlimited power.

Presumably to reinforce the magic power of this strange invocation of the political branches, the filing then argues that judges aren’t equipped “to manage” the Executive Branch.

The Judiciary is simply not equipped to manage the President and his national security advisors in their discharge of these most critical and sensitive executive functions and prescribe ex ante whether, where, or in what circumstances such decisions would be lawful. Whatever the limits of the political question doctrine, this case is at its core.

Of course, that’s not what the suit asks the court to do at all. It asks the court to review the decisions of the Executive Branch, not least to see whether its actions comply with the terms which that other political branch–the one that actually has the authority to declare war–has laid out.

Review … manage.

What’s the difference if an American citizen’s life is at stake?

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If and When Democrats Keep the House, Conyers Should Remind Holder the Import of Congressional Oversight

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I realize the odds of Democrats keeping the House are not all that great. But I also know that the DCCC is far more competent than the RNCC; DCCC has managed to win just about every challenging election of late.

So let’s just say Democrats keep the House and with it John Conyers his gavel. I really hope he’ll make Eric Holder regret not only this inappropriate comment to Lamar Smith (I don’t care whether Democrats or Republicans are in charge, the Committees are there to exercise oversight, not “be nice” to the agencies they cover), but also the unnecessary disloyalty.

Maybe Conyers can start by asking Holder to either provide a more credible explanation for why Pittsburgh’s FBI office was lying about taking a picture at a peace rally with no premise to do so than the FBI provided to Inspector General Glenn Fine (more on this IG Report in a bit).

FBI officials, including the Pittsburgh office’s top lawyer, engaged in distinctly COINTELPRO-style tactics after the American Civil Liberties Union sued for the release of documents relating to the surveillance.Boiled down to their essence, those tactics involved officials generating post-dated “routing slips” and other paper to create a terrorism threat that didn’t exist.

Or as the inspector general put it, the FBI’s elaborate, “after-the-fact reconstruction” of the Pittsburgh events, designed to fabricate a counter-terrorism rationale for the rookie’s surveillance mission, “was not corroborated by any witnesses or contemporaneous documents.”

It was on the basis of their fabrication, moreover, that FBI Director Robert S. Mueller III gave “inaccurate and misleading” testimony to Congress, the IG said.

The IG’s recounting of the Pittsburgh events is lengthy and meticulous.

The FBI, however, continues to deny that bureau officials engaged in an elaborate and deliberate scheme to deceive investigators, Congress and the pubic about what was, in retrospect, one rookie agent’s minor, misdirected surveillance of the Pittsburgh antiwar demonstration.

“Nobody,” the FBI says, “had a motive to provide an intentionally misleading account of it.”

It seems the only people who are given carte blanche to lie and obstruct justice are those trying to evade Congressional oversight, and the people who rely on that seeming carte blanche report up through Holder. That’s a management failure and a failure of the rule of law.

Would that the Attorney General cared more about that rule of law than chumming up to the opposition party.

Lindsey Graham Predicts Successful Terrorist Attack Followed by Harsh Resolution of Gitmo

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Josh Gerstein provides Lindsey Graham a soap box to complain that his efforts to craft a grand compromise with the Administration on Gitmo stalled in May.

“I thought we were close to getting a deal,” Graham told POLITICO last week. “I had some meetings where I walked out of the White House and said, ‘This is great.’ These were better meetings than I ever had with the Bush administration.”

But sometime around May, according to Graham, the line of communication with the White House shut down.

“It went completely dead,” Graham said. “Like it got hit by a Predator drone.”

The article as a whole suggests that Administration was fairly close to a deal, though even that deal was threatened by Graham’s inability to bring a number of Republicans along on the compromise as a whole, rather than a series of solutions. Efforts to craft a deal intensified following the Faisal Shahzad attempted Times Square bombing. Gerstein suggests that Eric Holder’s big appearance on the Sunday shows on May 9–to entertain thoughts of a Miranda compromise–was a sign of how close the Administration and Graham were to a deal.

“We had a great discussion on Miranda warning reform,” Graham recalled about an evening session with Bauer and Sen. Dick Durbin (D-Ill.). “I spent three hours down at the White House — it was probably the best meeting I’ve ever been in — where we game-planned this. … I left the meeting thinking we’re going to get a statute.”

Indeed, on May 9, Attorney General Eric Holder publicly embraced the idea on NBC’s “Meet the Press.” Calling Miranda-related legislation a “new priority,” he declared: “This is a proposal that we’re going to be making.”

And then the efforts to craft a compromise died (and, as a result, Miranda remains intact). Gerstein suggests Graham’s flip-flopping on other key legislation made it clear that Graham was not an honest broker.

Graham also may have lost credibility with the administration after he lashed out at the White House in disputes over the health care bill, climate legislation and immigration reform.

The timing certainly makes sense. During the last week of April, Graham threatened to kill the climate change bill he was crafting with the Administration as a way of keeping immigration reform from coming to a vote. By early June, he was promising to vote against any energy or climate bill. So the collapse of the grand “bargain” on Gitmo may have as much to do with Graham’s apparently successful effort to prevent Democrats from focusing on the legislative goals of a key constituency. And that may be why the electoral calendar is cited for killing the compromise as much as anything else: Graham’s yoking of immigration and climate change to Gitmo.

But I also wonder whether the Administration got a sense of just how bad Graham’s “compromise” really was. Negotiations on the grand compromise seem to have been at their height just as DOD was kicking four reporters out of Gitmo for making clear what was already in the public domain: that the interrogator who threatened a child with rape and possibly death in US prisons is the same guy who was convicted in relation to the death of another detainee. Since then (in July), Omar Khadr fired the lawyers who were crafting a plea deal, thus closing off one of the most palatable ways for the Administration to avoid making Khadr the poster child for America’s continued abuse of power at Gitmo.

I also suspect the nomination of Elena Kagan on May 10 may have played a part in the timing, not least because no Republicans would be willing to make a deal against the background of a SCOTUS nomination.

As it is, Graham seems to be using Gerstein’s article to issue two threats: first, that he will push for his own legislation in the next Congress, presumably with the votes of a few teabaggers to help him. And, his implicit threat that there will be another terrorist attack after which any decisions on Gitmo will be far worse than the policies being discussed now.

“There’s going to be an attack. That’s going to be the impetus. That’s going to be what it takes to get Congress and the administration talking; we have to get hit again,” the senator said, suggesting that passing a bill before that happens might be more reasonable than what would come afterward.

“If there is a successful attack, there is going to be a real violent reaction in the Congress, where we will react more emotionally than thoughtfully,” Graham said.

Let it be remembered–for the day when we’ve completely capitulated to those who want to use the threat of terrorism to establish a police state–that Lindsey Graham planned for it to happen.

Is the Obama DOJ Still Coddling Colombian Terrorists?

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ProPublica had an important story a few days ago reporting that the cases of a number of Colombian paramilitaries extradited to the US on drug–not terrorism–charges have been sealed and largely disappeared.

Since 2006, more than a dozen of Colombia’s most notorious paramilitary leaders have been extradited to the United States to face drug-trafficking charges in federal district court in Washington.

The extraditions stunned Colombians, who had hoped that testimony from the men, given as part of a national amnesty program, would help expose the truth about two decades of vicious murders, assaults and kidnappings. In videotaped confessions in Colombia, one had taken responsibility for more than 450 slayings.

But outrage over the extraditions reached a boiling point earlier this year, when U.S. District Judge Reggie Walton blocked public access to seven of the paramilitary leaders’ cases, erasing virtually every trace of their existence.

There is no way to know if the men have negotiated lenient sentences — or if they are even still in custody. An eighth defendant, accused in Colombia of murdering a judge, was released on his own recognizance, records show, after cousins in College Park, Md., vouched for him.

The story is important on its face–for what it reveals about judicial secrecy–but also because of our unique relationship with Colombia and its right wing terrorists.

If I’m not mistaken the accused in these cases are members of the AUC (the story says the accused in these cases are members of the Self-Defense Forces of Colombia; the Autodefensas Unidas de Colombia–the AUC–is usually translated as the United Self-Defense Forces of Colombia), a terrorist group that has been on the State Department’s list of official terrorist organizations since 2001. If that’s right, in addition to being alleged drug traffickers, these accused are also terrorists.

Yet the ProPublica story doesn’t use the word “terrorist” once.

It doesn’t consider whether, rather than being sealed to protect an ongoing investigation of drug trafficking, they might be sealed because of national security claims connected to the accused’s role as terrorists.

Most charitably, the cases might be sealed because these accused drug traffickers are helping the government find other terrorists. But I don’t buy that.

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You Have a Right to Speedy Trial … Unless They Need to Torture You First

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As we’ve discussed some in comments, Judge Lewis Kaplan rejected Ahmed Khalfan Ghailani’s challenge to his trial for the African embassy bombings on speedy trial grounds. Kaplan rejected Ghailani’s argument that, since the government had held him for five years before charging him, he had been denied the right to a speedy trial. Mostly, Kaplan ruled that, since the government got no advantage from waiting, the delay did not infringe on Ghailani’s rights.

This has been read to suggest that civilian judges would reject a similar challenge on the part of Khalid Sheikh Mohammed, meaning one possible barrier to a civilian trial for him, too, has been eliminated. That’s probably true. But it bears note that Kaplan did find government excuses for some of the delays in charging Ghailani unpersuasive.

In sum, the only reason for the delay of this prosecution during the period September 2006 through late February or early March 2007 was the fact that the executive branch decided to hold Ghailani at Guantanamo and not to proceed with the prosecution. The government’s justification for the roughtly one-year delay from February or March 2007 until March 28, 2008 is weak. The time during which the military commission proceedings were pending, March 28, 2008 until January 2009, also weighs against the government because the government and not the defendant was responsible for it. The same is true with respect to the interval from the suspension of the military commission prosecution in January 2009 until Ghailani eventually was produced in this Court.

Now, I think the argument that Kaplan used here will still largely hold sway. But some future judge may well look more skeptically on the current delay in charging KSM. After all, this delay — to let the political winds blow over until such time as KSM can be charged in a civilian court (if that’s what is happening) — is something the government is doing to gain advantages over KSM. Eric Holder has explained unambiguously that one reason he thinks we stand a better chance of trying KSM in civilian courts is to be able to impose the death penalty, and there’s actually a greater risk that KSM’s torture might lead a military commission to compensate for the treatment. The Attorney General, that is, has repeatedly said he wants to try KSM in civilian court because it holds certain advantages over military commissions for the government; and the only possible way to move forward in civlian courts is to wait until either Rahm and Lindsey say it’s okay or until the election passes. I don’t think it’ll happen, but there is an argument to be made that the current delay in charging KSM is designed to gain an advantage and therefore could be judged to violate his right to a speedy trial.

But that’s not what I find most interesting about this ruling. It’s the way Kaplan decides that the two years Ghailani was held — and, Ghailani says, abused — at a black site didn’t violate his right to a speedy trial. Here’s the argument:

The CIA interrogated Ghailani for the first two years in the reasonable belief that Ghailani had important intelligence information. While some of the methods it widely is thought to have used have been questioned and, to whatever extent they actually were used, might give rise to civil claims or even criminal charges, 139 no one denies that the agency’s purpose was to protect the United States from attack.

“It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” While the Speedy Trial Clause conceivably might have been violated if a prosecution were delayed for the purpose of extended use of appalling or unlawful methods of interrogation even for important national security reasons, that is not the case. There was no prolonged delay here for any such purpose. The two year delay attributable to the CIA interrogation served a valid purpose. The balance of considerations with respect to that period, especially in the light of the lack of substantial prejudice to Ghailani’s Speedy Trial Clause-protected interests, tips heavily in favor of the government.

139 But see Detainee Treatment Act of 2005, 42 USC 2000dd-1(a) (establishing qualified defense for government personnel charged with offenses or liability in connection with officially authorized operational practices “that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States”).

This is a lovely example of the muddlespeak one has to resort to to make an argument that is not entirely persuasive. “While some of the methods it widely is thought to have used have been questioned”? That construction is all the more ridiculous given that a few of the documents Kaplan cites on torture–like the Bradbury CAT memo, the CIA’s Combined Techniques document, and a version of the OMS guidelines are publicly available. And how does Kaplan decide that Ghailani’s trial hasn’t been delayed just for torture? Because John McCain subsequently declared it retroactively legal?

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Apparently, Reporting on Right Wing Death Squads Is Now Material Support for Terrorism

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We’ve discussed the recent SCOTUS decision that ruled the government can charge people engaging in First Amendment activities with material support for terrorism. Even groups trying to teach terrorist organizations to engage peacefully might be judged to be materially supporting terrorists.

And while I don’t think that’s precisely what is going on here, the logical next step after treating counseling on conflict negotiations as material support for terrorism is to treat reporting on conflict negotiations as material support for terrorism.

Hollman Morris Rincón, an independent journalist in Colombia, won a Nieman Fellowship this spring to study conflict negotiation strategies, international criminal court procedures, and the Rome Statute. I’ll just quote the AP:

BOGOTA, Colombia — The U.S. government has denied a visa to a prominent Colombian journalist who specializes in conflict and human rights reporting to attend a prestigious fellowship at Harvard University.

Hollman Morris, who produces an independent TV news program called “Contravia,” has been highly critical of ties between illegal far-right militias and allies of outgoing President Alvaro Uribe, Washington’s closest ally in Latin America.

The curator of the Nieman Foundation at Harvard, which has offered the mid-career fellowships since 1938, said Thursday that a consular official at the U.S. Embassy in Bogota told him Morris was ruled permanently ineligible for a visa under the “Terrorist activities” section of the USA Patriot Act.

Of course, given that the Attorney General has, himself, helped a bunch of white Republicans get away with their material support for Colombia’s death squads, you might think our country simply thinks some terrorists are more equal than others. But keep in mind: both Colombia’s left wing and right wing terrorists are on the Foreign Terrorist Organization list.

Obama Administration Follows Bush/Cheney On Politicization Of DOJ

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Remember the plaintive cries of Democrats and progressives about the wrongful politicization of the Department of Justice by the Bush/Cheney Administration? Remember the stunning chart Sheldon Whitehouse whipped out at a Senate judiciary hearing on Alberto Gonzales’ tenure as AG showing how politicized the hallowed independent prosecutorial discretion of the DOJ had become under Bush, Cheney and Gonzales? The one that Pat Leahy called “the most astounding thing I have seen in 32 years”?

That was in late April of 2007, little more than three years ago. Despite the most fervent hope of a Democratic and progressive base that they were voting to change the wholesale invasion of the prosecutorial discretion by the White House political shop (along with so, so many other things), it appears little has changed. In fact, the invasion of province appears to be being writ larger and more profound. From Jerry Markon in the Washington Post:

Now, the decision on where to hold the high-profile trials of Mohammed and four others accused of being Sept. 11 conspirators has been put on hold and probably will not be made until after November’s midterm elections, according to law enforcement, administration and congressional sources. In an unusual twist, the matter has been taken out of the hands of the Justice Department officials who usually make prosecutorial decisions and rests entirely with the White House, the sources said.

“It’s a White House call,” said one law enforcement official, who spoke on condition of anonymity to discuss internal deliberations. “We’re all in the dark.”

The delays are tied to the administration’s broader difficulties in closing the U.S. military prison at Guantanamo Bay, Cuba — where Mohammed and the other detainees are held — and are unlikely to affect the outcome of a trial that officials vow will be held at some point. But people on all sides of the debate over whether Mohammed should be tried in federal court or before a military commission expressed frustration that nearly nine years after Sept. 11, justice for the attacks seems so elusive.

“It’s important that these trials actually take place, and soon,” said Jameel Jaffer, director of the national security project at the American Civil Liberties Union, which has long pushed for the trials to be held in federal court. “It’s not just that people held for long periods of time in government custody deserve to contest the evidence against them. It’s also that these trials are important to the country.”

For all the hope and change, nothing has changed. Toying with the root charging and prosecutorial functions and discretion of the Department of Justice as a way to respond to the prevailing political winds is a craven path for the Obama Administration to take. And hanging Attorney General Eric Holder and his Department out to dry in those winds is despicable political and executive cowardice.

So, on this fine Fourth of July, as we celebrate America’s independence and reflect on our founding principles, it would be wise to remember, and refresh the recollection of the Obama Administration, Read more →

Elena Kagan and Lindsey Graham on the Global Battlefield, the Sequel

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This exchange is one of the most telling from the entire Kagan hearing today (note; we’ve edited this exchange for length; here’s the full exchange; also, while you’re watching, keep an eye on the body language of the bearded man sitting behind Kagan, White House Counsel Bob Bauer).

It’s striking, first of all, because Lindsey Graham plays the role of the cross-examiner and his delivery largely overwhelms Kagan. As they go on, Kagan manages to reclaim her ground–on the issue of whether or not the entire world is the battlefield of the war on terror. But even there, the difference in her various answers suggests troubling things about her stance on habeas.

After prompting Kagan to deliver the standard justification for detaining enemy combatants during war and rewarding her with a condescending compliment, Lindsey starts by getting Kagan to agree that the war on terror will never end.

Lindsey: [Speaking of her rote recitation of the basis for indefinite detention] That’s a good summary. The problem with this war is that there will never be a definable end to hostilities, will there?

Kagan: [Nodding] That is exactly the problem, Senator.

What a breath-taking exchange! Rather than challenge Lindsey on his slippery definition (referring to “hostilities” rather than war), rather than challenging him on the premise, Kagan simply nods in agreement. One minority party Senator and the Solicitor General sat in a hearing today and decided between them the state of hostilities under which the Executive Branch has assumed war-like powers to fight terrorism will never end.

The police state will continue forever.

Perhaps sensing the danger, Kagan notes that the Hamdi decision envisions such an indefinite war might require a different approach to detention, perhaps a review to ensure a detainee’s continuing dangerousness. This thrusts Kagan not into the realm of legal review, but the policy disputes between the White House and Lindsey (again, the watchful eye of Bob Bauer here is worth noting).

Our excerpt jumps here (after Lindsey makes his pitch for just such a program).

Lindsey comes back by getting Kagan to personally endorse the stance she embraced in her Solicitor General role, arguing against habeas rights for Bagram detainees.

Lindsey: You argued against expanding habeas rights to Bagram detainees held in Afghanistan, is that correct?

Kagan: I did, Senator Graham.

Lindsey: As a matter of fact, you won.

Kagan: [pushing back with apparent discomfort] Uh, in the DC Circuit–

Lindsey: [interrupting] And you probably won’t be able to hear that case if it comes to the Supreme Court, will you?

Kagan: Well, that’s correct, and the reason–

Lindsey: [interrupting again] Well, that’s good cause then we can talk openly about it.

Kagan: [laughing] Uh, if I could just say, the Solicitor General only signs her name to briefs in the Supreme Court, authorizes appeal, but does not sign Appellate briefs, but I determined that I should be the Counsel of Record on that brief because I felt that the United States’ interests were so strong in that case based on what the Department of Defense told our office.

Lindsey: Right. I want every conservative legal scholar and commentator to know that you did an excellent job in my view of representing the United States in that case.

Lindsey then gets her to reiterate that she signed that brief because of the seriousness of the issues for the government. He interrupts again:

Lindsey: Well, let me read a quote: “The Federal Courts should not become the vehicle by which the Executive is forced to choose between two intolerable options: submitting to intrusive and harmful discovery, or releasing a dangerous detainee.” Do you stand by that statement?

Kagan: Senator Graham, can I ask whether that statement comes from that brief?

Lindsey: Yes it does.

Kagan: No, I uh, that statement is my best understanding of the very significant interests of the United States government in that case, which we tried forcefully to present to the Court and as you said before, the DC Circuit–a very mixed panel of the DC Circuit–upheld our argument.

Lindsey: Right. You also said “The Courts of the United States have never entertained habeas lawsuits filed by enemy forces detained in war zones. If Courts are ever to take that radical step, they should do so only with explicit blessing by statute.” You stand by that?

Kagan: Anything that is in that brief I stand by as the appropriate position of the United States government.

Lindsey: [while she is speaking] Fair enough.

Throughout this exchange, Lindsey basically had Kagan cornered, not wanting to disavow a document she had signed in unusual circumstances, but seemingly recognizing the risk of adopting these harsh statements as her own. Read more →