A Way Towards The Rule of Law – An Answer to Cap’n Jack

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Justice, what do you care about justice. You don’t even care whether you’ve got the right men or not. All you know is you’ve lost something and someone’s got to be punished. The Ox-Bow Incident.

Nine years after September 11 and eight years after the CIA provided a memorandum to the White House explaining that at a minimum, one-third of the detainees at GITMO were “mistakes” who had been purchased in bounty transactions. Nine years after the Department of Justice covertly elevated the President of the United States as a power above the Constitution and the laws of the United States and seven years after the Department of Justice assisted in allowing the torture of Ibn al Shaykh al-Libi to be laundered through Colin Powell to the UN and to America. So many years after so many incidents, our nation is still being flimflammed over what to do with so-called terrorist detainess. 

Enter Jack Goldsmith with his recent op ed titled, “A way past the terrorist detention gridlock.”  While Marcy and Spencer have already weighed in, I whined until Marcy let me have my own go at this too, because I wanted to provide an alternative route to deal with the “gridlock.”  

Goldsmith’s advice to Obama is to:  (i) keep GITMO open because closing it is hard, (ii) forget civilian criminal actions because they are hard, (iii) forget military commissions because they have no international crediblity and are hard, (iv) get Congress to give the President unchecked and unsupervised powers to engage in forever detentions without respect to guilt or innocence, and (v) use the reality of  forever detentions for the innocent as well as the guilty and other coercion to get detainees to offer up confessions and plea deals and thereby get around the hard parts of civilian criminal suits.   Part (v) includes the caring-compassionate touch of only being recommended if Obama takes the death penalty off the table.  

Despite such awesome[ly bad] advice, GITMO has not proved hard to close because there are not Read more →

With Kagan On SCOTUS, We Are Still Down A Justice

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With the long anticipated retirement of Justice John Paul Stevens, it was important for President Obama to appoint and get confirmed a new justice so there would not only be a full compliment of justices on the court, but to insure the ideological balance of the court was maintained. By selecting Elena Kagan, Obama certainly did not pick the most qualified person for the job, nor did he maintain the ideological balance particularly as Kagan undoubtedly moved the court to the right at least to some degree.

Now, it turns out, by appointing Kagan Obama did not even give the Court a full compliment of justices. From the Blog of Legal Times:

Supreme Court Justice Elena Kagan this week quietly recused herself in 10 cases that will be argued in the term beginning Oct. 4, bringing to 21 the number of cases in which she will not participate.

That represents more than half of the 40 cases the Court has already agreed to hear in the new term — a number that will grow in coming months as the justices agree to hear arguments in more new cases.

During her confirmation this summer, Kagan already indicated she would recuse in 11 cases in which she was counsel of record as solicitor general. The new batch appears to reflect a determination that her participation at earlier stages — even where her office did not file a brief — required her to step aside.

So, as it stands today, Kagan will not be participating in over half the cases on the Supreme Court docket for the coming term. Lovely. A full list of the cases Justice Kagan has recused on to date can be found at the BLT link.

What is more distressing, however, are the cases to come that Kagan will also undoubtedly be recusing on. For instance the al-Haramain, Jeppesen and Jewel cases from the 9th Circuit. There are a whole plethora of Executive/Unitary power, Habeas, Gitmo, Detainee and other critical war on terror cases Kagan either did have, or may have had, her fingers on as head of the Solicitor General’s office. At this point, it looks like she plans on recusing herself from anything and everything that was in her vicinity, no matter how nominally. As should be well known by now, there is no necessity for a justice to recuse from everything they have ever known about, no less an authority than Antonin Scalia proved that.

Now, quite frankly, I have no problem with Elena Kagan recusing from consideration of Vaughn Walker’s decision in al-Haramain, I think the case would be better off without her toadying for the Obama Administration’s view of supreme Executive power and covering of crimes through assertion of state secrets, but what about the Prop 8 Perry v. Schwarzenegger case? In case you have forgotten, a portion of that case (the cameras in the court issue) went to the Supreme Court; if Elena Kagan decides she has to recuse herself, or is looking for an excuse to avoid such a controversial matter, that is going to be a HUGE blow to the chances of success on appeal.

I wonder how many people really understood they would be getting a part time justice for such a critical period over the next couple of years? And for all those on the liberal end of the political spectrum that carped about the fundamental dishonesty of John Roberts when he swore he was just a “balls and strikes” kind of guy “respectful of precedent”, I wonder what they think of the same type of deception from Kagan when she ridiculously understated the depth of her anticipated recusal problem to the Judiciary Committee?

There were a lot of things needed from President Obama’s choice to fill the seat of Justice John Paul Stevens; none of them have been fulfilled so far by Elena Kagan.

Who We Are: Zeitoun and Camp Greyhound Five Years On

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In a country founded on “self evident truths” such as life, liberty, equality, and due process of law, the timeless quote from Ben Franklin speaks to the peril imposed when the founding principles are discarded or compromised:

Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one.

Yet, of course, since 9/11 that is exactly what the United States has done and what has resulted in return. Fareed Zakaria has a piece up at Newsweek speaking to the senseless and destructive madness that has consumed the US since the 9/11 attacks:

The error this time is more damaging. September 11 was a shock to the American psyche and the American system. As a result, we overreacted.

….

Some 30,000 people are now employed exclusively to listen in on phone conversations and other communications in the United States. And yet no one in Army intelligence noticed that Maj. Nidal Malik Hasan had been making a series of strange threats at the Walter Reed Army Medical Center, where he trained. The father of the Nigerian “Christmas bomber” reported his son’s radicalism to the U.S. Embassy. But that message never made its way to the right people in this vast security apparatus. The plot was foiled only by the bomber’s own incompetence and some alert passengers.

Such mistakes might be excusable. But the rise of this national-security state has entailed a vast expansion in the government’s powers that now touches every aspect of American life, even when seemingly unrelated to terrorism.

…..

In the past, the U.S. government has built up for wars, assumed emergency authority, and sometimes abused that power, yet always demobilized after the war. But this is a war without end. When do we declare victory? When do the emergency powers cease?

Conservatives are worried about the growing power of the state. Surely this usurpation is more worrisome than a few federal stimulus programs. When James Madison pondered this issue, he came to a simple conclusion: “Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germs of every other … In war, too, the discretionary power of the executive is extended?.?.?.?and all the means of seducing the minds, are added to those of subduing the force, of the people.

“No nation could preserve its freedom in the midst of continual war,” Madison concluded.

Indeed it is a chilling picture we have allowed our political “leaders” to paint us into, and Zakaria does not even hit some of the most disturbing impingements on due process and the rule of law such as the government arrogating itself the right to summarily execute American citizens with no judicial trial or due process whatsoever and the legal black hole that is Guantanamo and the Obama Military Commission and indefinite detention program. That is, as a nation, who and what we are today and it has bought us nothing except world scorn, geometrically more enemies, a plundered treasury, ignored and dilapidated domestic infrastructure, swelling joblessness and exploding income inequality.

But, hey, at least we have increased security and all those oppressive terrorist modalities are only for al-Qaida and the bad foreigners, right? No. The rot is now who we are, towards ourselves in addition to “them”. And that is where we finally get to the subject of the title of this post. Nothing demonstrates the deadly rot virus that has been injected into the blood of the American ethos than the story of Zeitoun. (more after jump) Read more →

Cheney’s “Hard, Hard Power” and Syria

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Apparently, the Poodle’s memoir (the tour for which got a little messy in Dublin) confirms something that was blatantly obvious: Dick Cheney wanted to conquer the entire Middle East, country by country.

Describing the former US vice president as an advocate of “hard, hard power”, Mr Blair said Damascus was next on Mr Cheney’s hit list.

“He would have worked through the whole lot, Iraq, Syria, Iran, dealing with all their surrogates in the course of it – Hizbollah, Hamas, etc,” Mr Blair wrote in his autobiography, A Journey. “In other words, he thought the whole world had to be made anew, and that after September 11, it had to be done by force and with urgency.”

As this report notes, Cheney’s transparent desire to take out Syria led that country to do things–like offer a haven for Iraqi insurgents–that hurt our overall war effort in Iraq. More importantly, Sy Hersh wrote extensively about how targeting Syria deprived the US of one of its best sources of information on al Qaeda.

State Department officials have told me that by early 2002 Syria had emerged as one of the C.I.A.’s most effective intelligence allies in the fight against Al Qaeda, providing an outpouring of information that came to an end only with the invasion of Iraq.

[snip]

… after September 11th the Syrian leader, Bashar Assad, initiated the delivery of Syrian intelligence to the United States. The Syrians had compiled hundreds of files on Al Qaeda, including dossiers on the men who participated—and others who wanted to participate—in the September 11th attacks. Syria also penetrated Al Qaeda cells throughout the Middle East and in Arab exile communities throughout Europe. That data began flowing to C.I.A. and F.B.I. operatives.

[snip]

Syria also provided the United States with intelligence about future Al Qaeda plans. In one instance, the Syrians learned that Al Qaeda had penetrated the security services of Bahrain and had arranged for a glider loaded with explosives to be flown into a building at the U.S. Navy’s 5th Fleet headquarters there. Flynt Leverett, a former C.I.A. analyst who served until early this year on the National Security Council and is now a fellow at the Saban Center at the Brookings Institution, told me that Syria’s help “let us thwart an operation that, if carried out, would have killed a lot of Americans.” The Syrians also helped the United States avert a suspected plot against an American target in Ottawa.

[snip]

“Up through January of 2003, the coöperation was topnotch,” a former State Department official said. “Then we were going to do Iraq, and some people in the Administration got heavy- handed. They wanted Syria to get involved in operational stuff having nothing to do with Al Qaeda and everything to do with Iraq. It was something Washington wanted from the Syrians, and they didn’t want to do it.”

But what I’m most interested in, particularly given the way that–as David Corn shows–Blair selectively edited out the parts of history that show the US was prepared to provoke an excuse to go to war against Iraq, is what it says about the intelligence we were trumping up about Syria. You know? Claims made by the now Director of National Intelligence that Iraq had moved its WMD program into Syria? Or the A1 cutout leak of John Bolton’s bogus testimony to Judy Miller to pre-empt intelligence community disagreements with it?

Granted, we really have known this all along: the Cheney government was inventing intelligence to justify a war not only against Iraq, but against much of the Middle East.

But as we piece together the evidence as new sources become available, this serves as a reminder that it’s not just about Iraq and Iran.

On Tuesday, General Petraeus Achieved Victory in Oceania; On Wednesday, He Led Us to War against Eastasia

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The day after Obama declared victory (sort of) in Iraq, the Administration announced a whole package of sanctions against the Pakistani Taliban, Tehrik-e Taliban. The sanctions:

  • Designate TTP as a Foreign Terrorist Organization
  • Designate TTP as a Special Designated Global Terrorist Organization
  • Designate TTP’s two leaders, Hakimullah Mehsud and Wali Ur Rehman, as Special Designated Global Terrorists
  • Offer of $5 million reward leading to Mehsud or Rehman’s arrest
  • Charge Mehsud in connection with the Khost killings

Forgive me if I dismiss what are real measures against a genuinely dangerous organization. But I can’t help but suspect this lays the ground work to ensure we have a war against terror to fight (and with it, expanded executive powers) beyond July 2011.

Charging a formerly dead guy

Perhaps my favorite comment on the criminal charges came from reporter James Gordon Meek:

DOJ charges Pak #Taliban emir Hakimullah Mehsud in absentia for killing 7 CIA officers in #Afghanistan 12/09. Anybody tell CIA’s drone unit?

Presumably, Meek is referring to claims a US drone strike killed Mehsud in January, a claim the CIA once judged to have a 90% likelihood of being correct. There’s not much point in arresting Mehsud if he’s been dead nine months.

But the mention of CIA’s drone campaign in Pakistan raises a bunch more problems with DOJ’s charges. For starters, Mehsud’s wife–a civilian–was reportedly killed in that January drone strike too. Both the uncertainty the CIA has about its purportedly scalpel-like use of drones and the civilian deaths they’ve caused illustrate the problem with drones in the first place. Civilians–CIA officers–are using them in circumstances with significant collateral damage. It would be generous to call the use of drones in such situations an act of war; some legal experts have said the CIA officers targeting the drones are as much illegal combatants as al Qaeda fighters themselves.

The affidavit describing the evidence to charge Mehsud doesn’t say it, but underlying his alleged crime is the potential US crime of having civilians target non-combatants in situations that cannot be described as imminently defensive.

Charging someone for revenge on CIA’s illegal killing

Which leads us to the crimes for which they’re charging Mehsud: conspiracy to murder and conspiracy to use a WMD (bombs) against a US national while outside of the United States. Basically, DOJ is charging Mehsud with conspiring with Humam Khalil Mulal al-Balawi, the Jordanian doctor who committed the suicide bombing at Khost that killed 7 CIA officers and contractors.

Now, there’s not much doubt that Mehsud did conspire with al-Balawi. I just doubt whether it could be fairly called a crime. The affidavit describes two videos in which Mehsud stands side by side with al-Bawali. In one, both al-Balawi and Mehsud describe the upcoming attack as revenge for killings in the drone program–most importantly, of Mehsud’s brother Baitullah Mehsud from a CIA drone strike in August 2009.

Al-Balawi then continues alone: “This itishhadi [martyrdom-seeking attack] will be the first of the revenge against the Americans.” After additional declarations of revenge by al-Balawi, MEHSUD resumes speaking in Pashtu, explaining the motive for the upcoming suicide attack by al-Balawi, that is the death of the former emir of the TTP, Baitullah Meshud [sic] which MESHUD [sic] attributes to the Americans.

Remember, too, that al-Balawi was a double agent. The Americans believed he was helping them target people, people just like Mehsud. That means al-Balawi (and presumably through him, Mehsud) knew he was specifically targeting those behind the earlier killings in Pakistan when he killed them.

So al-Balawi successfully killed people who were either civilians, in which case their own strikes at Baitullah Mehsud and others may be illegal, or people who were acting as soldiers, in which case the attack on their base was presumably legal under the law of war. And for helping al-Balawi, DOJ is now charging Mehsud with conspiracy.

Read more →

Letter to Earl Blumenauer Re: Indemnification Agreements

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Dear Congressman Blumenauer:

I must say, I was both surprised and heartened to see you intrepidly and doggedly pursuing the existence and nature of indemnification agreements from the United States government insulating and immunizing private companies such as Halliburton/KBR from damage liability they would otherwise accrue for heinous, illegal and/or unconscionable acts committed in their participation in national security and the war on terror. Excellent work sir!

However, now that you are up to speed on the insidious use and abuse of such provisions, maybe you would like to continue your fine work – and give honor to your oath of office to defend the Constitution – and ask the same questions, and demand answers thereto, regarding indemnification agreements given to telcos by the Bush Administration in conjunction with the telcos’ participation in the illegal and unconstitutional warrantless wiretapping program instituted by the Bush/Cheney Administration. And we know the program was illegal and unconstitutional because a United States Federal Judge directly and specifically declared it to be just that.

So, what you need to know is that the same type of craven indemnification agreements you have pluckily exposed for Halliburton/KBR were almost certainly given to the telcos participating in the President’s Wiretapping Program, and you owe it to your constituents and the citizens of this country to look into it and get answers just as you have done here.

Now I know this may be a lot to grasp and there is much for you to learn in order to successfully pursue this matter, but by great and fortuitous luck, I have already laid out everything you will need to get going. In fact, I did it nearly three years ago, and here is a taste:

For the foregoing reasons, the telcos are already protected by the immunity of existing statutory safe harbor provisions for legal conduct requested by the Administration and will have indemnity for other acts demanded by the Administration. I respectfully submit that the telcos are already sufficiently protected from the Spectre (some pun intended) of massive financial peril of the existing civil lawsuits; and that the only real reason for the desperate push for immunity is panic among Administration officials that their craven illegality will be exposed and they will be held to account. We now know for a fact, that which we have always suspected, thanks to Mike McConnell, namely that the entire belligerent push for FISA reform is all about immunity, and not about what George Bush would call “protectun Amarikuh”.

The minor issues with FISA that need tweaking could have been easily accomplished and, indeed, Congress offered long ago to work with them to do just that; but, of course, were belligerently spurned because, as Dick Cheney famously bellowed, “We believe… that we have all the legal authority we need”. This furious push has been about immunity, from the start, to prevent discovery of the Administration’s blatant and unconscionable criminal activity. The House of Representatives, and the cave-in Administration cover-up specialists in the Senate as well, should take a long, hard look at what is really going on here and steadfastly refuse the Administration’s self serving craven grab for the cover of telco immunity.

But, alas, Congress, which you were a member of, went along like a bunch of blind lemmings with the Bush/Cheney Administration’s demand for immunity for telcos that, along with the dishonest assertion of state secrets, has completely eviscerated citizens’ ability to know and understand what illegal and unconstitutional actions the US government is taking in their name, not to mention ability to seek proper redress for the crimes and acts.

So, now that you are all hardwired in on indemnification abuse, and on a roll of success, how about you go ahead and pursue this part of it? Come on Earl, it is your duty after all. Thank you in advance for your attention and cooperation in resolving this important matter.

Sincerely,

bmaz

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 →

Cowboys, T. Jeff’s Declaration, Bond Bitchez and Teh Porn Stash

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Hi there buckaroos and buckarettes. Sometimes a man has gots to do what a man has gots to do. Now is one of those times. Marcy up and penned this most awesome cutting, biting, truth to power wonderful post. And then she went and buggered the pooch with a sandpapered, plain vanilla, non confrontational milquetoast title.

Bleeeccchhh.

Responsible blog wingman and all that I am, I immediately pointed out the title should be “The Declaration of Independence, Obama’s Presidential Kill Cards and the Porn Stash”. Same old story; same old song and dance. Nobody ever listens to good old bmaz. Instead we went with the Wolf Blitzer/Jonas Brothers/Disney Lite title of “Keep Your Declaration of Independence Right Next to Your Assassination Cards”.

Yawn.

Come on, you just know that Michael Leiter, the designated human kill switch of the Obama Administration, keeps those two critical reference materials – the Declaration of Independence and the US Government’s deck of snuff cards – in the safest, most discreet and yet accessible, location to his bedroom. You know, right where he keeps his porn stash.

Now what is really odd about this report, and does not register at first blush, is that Leiter has mentally honed in and lasered his focus on the Declaration of Independence rather than the Constitution. Seriously; think about it. It is an incredibly telling difference.

Here is the opening text of the aggressive and intentionally somewhat in your face Declaration of Independence, the forward cry and belligerent marking of territory by a new nation staking its claim in the world:

When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Then ponder the respectful, moral and enlightened reach of the Preamble to the Constitution, the hallowed document that Leiter and Obama ought to be paying attention to when deciding to remotely snuff human lives (including, by all reports, those of American citizens) without the protection of due process and by the cold mechanical death by drone:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Declaration is an affirmative statement of manifest authority; the Constitution is a self imposed restriction of manifest authority and protection of due process in the face of it. So, there are a lot of issues with this whole gig surrounding Leiter and his nighttime is the right time to kill thing. And people were worried about Hillary getting a 3 am call; seems all so quaint now.

Oh, and by the way, T. Jeff it has now been concluded made a mistake in drafting the Declaration of Independence, and had it even more authoritarian than anybody ever knew:

Preservation scientists at the Library of Congress have discovered that Thomas Jefferson, even in the act of declaring independence from England, had trouble breaking free from monarchial rule.

In an early draft of the Declaration of Independence, Jefferson wrote the word “subjects,” when he referred to the American public. He then erased that word and replaced it with “citizens,” a term he used frequently throughout the final draft.

The Library released news of the struck word for the first time on Friday.

Jeebus, even dead presidents and founders are going rogue.

The other quite random thought I cannot pry from my beady little mind is the slathering coverage of the super hot, most awesomest, Redhead Rooskie Spy Babe, Anna Chapman. At first I could not figure out the singular fascination of the press with this chick who is being billed as the new “Bond Babe”.

Then it dawned on me. Chapman is hot, red, sultry and enticing. And she looks eerily like a young and come hither Maureen Dowd. Come on, you just know Howie Kurtz and his penis er the media is thinking that.

Well, that is yer friendly Friday Night Emptywheel Trash Talk. New and improved with no sports! Eh, it will be Favre season soon enough, so do not despair. Tonight’s musical interlude is a little slice of the old west I know and love. Actually, I like both kinds of music, country and western. The incomparable Phil Lynott and Thin Lizzy with The Cowboy Song. Oh, and the Boys Are Back.

Happy trails pardners!

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 →

The Perils of Giving John Brennan Unchecked Power

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Before you read this post, go read this Glenn Greenwald one highlighting an Eli Lake interview with John Brennan. Lake reports John Brennan describing “dozens” of Americans against whom the US will bring the full brunt of its power.

“There are, in my mind, dozens of U.S. persons who are in different parts of the world, and they are very concerning to us,” said John O. Brennan, deputy White House national security adviser for homeland security and counterterrorism.

[snip]

“If a person is a U.S. citizen, and he is on the battlefield in Afghanistan or Iraq trying to attack our troops, he will face the full brunt of the U.S. military response,” Mr. Brennan said. “If an American person or citizen is in a Yemen or in a Pakistan or in Somalia or another place, and they are trying to carry out attacks against U.S. interests, they also will face the full brunt of a U.S. response. And it can take many forms.”

Glenn points out the number (we previously knew only that three Americans were targeted), the global scope of this, and the continuity Brennan claims with Bush’s counter-terrorism.

But I’d like to focus on John Brennan himself.

Brennan asserts that the Obama Administration is largely building on the Bush Administration counterterrorism policy.

“There has been a lot of continuity of effort here from the previous administration to this one,” he said. “There are some important distinctions, but sometimes there is too much made of those distinctions. We are building upon some of the good foundational work that has been done.”

Glenn notes that this assertion is all the more notable since Brennan was, after all, a top Bush counterterrorism official. Brennan is saying there’s continuity between what he did under Bush and what he’s doing now.

So let’s recall the reason John Brennan is even able to rejoin government after having worked in the Bush Administration and then profited in the Intelligence Industrial Complex for a few years: retroactive immunity.

Brennan was in charge of picking the Americans George Bush would illegally wiretap–including during the period after March 11, 2004, when Bush reauthorized the illegal wiretap program in spite of the fact that DOJ had told him there was no legal basis for it. Brennan was directly involved in illegally wiretapping Americans (though he likely did not know that the entire program was even more illegal at that point than previously). And lo and behold, about the time that Brennan assumed a significant role on candidate Obama’s team, Obama flip-flopped on retroactive immunity, pretty much ensuring that Bush’s–and Brennan’s–would never receive real scrutiny.

Would John Brennan be Obama’s Homeland Security Advisor right now if Americans knew the full extent of his role in targeting Americans for illegal wiretapping?

This is the guy, then, boasting that we’ve got not three, but dozens, of Americans against whom we intend to bring the full brunt of the US military. A guy who was previously involved (possibly unknowingly) in wiretapping Americans without the requisite legal review.

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