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.
[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 →
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:
The whole point of Joe Lieberman’s tea-bagger bait Terrorist Expatriation Act, according to his Republican House co-sponsor Charlie Dent, is to make it easier to launch Hellfire missiles at people. And Lieberman, too, ties his citizenship-stripping measure to Obama’s targeting of an American citizen with a predator drone.
Taking on critics who say his proposal goes too far, Lieberman pointed to news reports that President Barack Obama signed an order enabling the US military to kill US citizens like radical US-Yemeni cleric Anwar al-Awlaki.
“If the president can authorize the killing of a United States citizen because he is fighting for a foreign terrorist organization,” he said, “we can also have a law that allows the US government to revoke Awlaki’s citizenship.”
Lieberman said his proposal would make it harder for US nationals who cast their lot in with extremists, and train overseas, to return and carry out an attack, and if they do would make it possible to try them in military court.
“They will not enjoy the rights and privileges of American citizenship in the legal proceedings against them. That, I believe, will make America safer,” he said at a press conference with three other lawmakers.
“The US military may have more options to use necessary force to neutralize the threat, such as Anwar al-Awlaki, without the concerns associated with targeting an American citizen,” said Republican Representative Charlie Dent.
“I suspect it’d be easier to launch a Hellfire missile at a non-citizen than a citizen,” said Dent, referring to a weapon sometimes fired from US aerial drones at suspected terrorists.
Now, there’s a lot to loathe about this bill. Shane Kadidal describes the many ways in which it is illegal here.
But what I find most astounding about it is that Lieberman ties this not to actual military preparations against the United States (as he claims in his comments to Andrea Mitchell) but simply to “providing material support or resources to a foreign terrorist organization.” And while I’d be willing to consider the merits of deporting Congressman Peter King or former top Chiquita executives like Carl Lindner and Roderick Hills (though following the logic of Elena Kagan, we’d also have to deport Attorney General Holder), I’m also cognizant that the way the government currently uses material support charges, it is prone to ensnare people who donate socks or money, sometimes in the name of charity.
The logical endpoint of this, then, in the addled little brains of Joe Lieberman and Charlie Dent, is that we should consider drone strikes on brown people who might have a good faith belief that they’re engaging in charity. And not just that we should consider drone strikes, but we should try to make it easier to execute those drone strikes.
The LAT reports that targeting for most of the drone strikes that have killed more than 500 people in Afghanistan and Pakistan has been based not on information about an individual’s ties to terrorism, but rather on “pattern of life” analysis that targets the actions of a person.
The CIA received secret permission to attack a wider range of targets, including suspected militants whose names are not known, as part of a dramatic expansion of its campaign of drone strikes in Pakistan’s border region, according to current and former counter-terrorism officials.
The expanded authority, approved two years ago by the Bush administration and continued by President Obama, permits the agency to rely on what officials describe as “pattern of life” analysis, using evidence collected by surveillance cameras on the unmanned aircraft and from other sources about individuals and locations.
Think about that: we’re potentially killing people based not on what we know about an individual, but what we have observed solely through the camera of a drone. Or, if we’ve got particularized information from someone on the grounds, it’s as likely to be someone from Blackwater or an even more disreputable contractor posing as PsyOp warriors. And this includes strikes in Pakistan, a country with which we are not at war, supposedly. And among those targeted in such a manner may be associates of Faisal Shahzad.
Remember that old Bush ditty, that we were fighting them over here so we didn’t have to fight them here? Apparently that has now been turned on its head: we are targeting them from here which may make it more likely we’ll be fighting them here.
If ever there were a doubt that John Yoo was not just a craven lackey for David Addington, but also a stupid political hack, his op-ed today puts that doubt to rest. After whining about how mean the Senate Judiciary Committee was to Robert Bork and Clarence Thomas and John Roberts (!) and Sam Alito, Yoo launches into the kind of fantastic ravings you’d expect from Glenn Beck.
Republicans can also use the filibuster to return the federal government to its proper role in our constitutional system. When Obama chose Sonia Sotomayor for the Supreme Court last year, the jury was still out on the president. It wasn’t clear if Obama was a moderate technocrat, as much of the electorate hoped, or if he was a man of the left, as Republicans feared.
That answer is now clear. At home, Obama has launched a broad campaign to redistribute wealth and engineer social change. He and his large congressional majorities enacted a wasteful $800 billion stimulus, increased the national debt by 50 percent in two years, and nationalized the health-care sector – fully one-sixth of the economy.
On national security, Obama kept to the Bush-Petraeus drawdown schedule for Iraq and reluctantly surged troops to Afghanistan. But he has tried his best to fit the war against al-Qaeda into the box reserved for criminal activities: He promised to shut down Guantanamo Bay, abjured tough questioning tactics, loosed a special prosecutor on CIA interrogators, announced a civilian trial in New York City for 9/11 plotter Khalid Sheikh Mohammed, and automatically treated al-Qaeda’s Christmas Day bomber as a criminal suspect.
[snip]
The GOP will earn public support for its actions, but more important it will be returning the Supreme Court to the original meaning and purpose of the Constitution. The framers wanted the federal government to play a limited role in domestic affairs, and an energetic one to protect the national security against unforeseen emergencies and war. They did not establish a government to redistribute income or impose a socialistic vision of regulated markets. The Constitution’s preamble declares its purpose: to “provide for the common defense” and “promote the general welfare,” not balance the common defense and promote special interests. If President Obama doesn’t send the Senate a nominee who understands those words, the Supreme Court vacancy could be another issue to await the results of the November elections.
John Yoo, apparently, had no problem with the way George Bush redistributed wealth to the very rich with the Wall Street Bailout and huge cuts in the estate tax. And he seems to have missed the news that Obama has embraced the kind of tools of unchecked executive power–including the ability to target American citizens for death with no due process–that John Yoo loves. And how cute that John Yoo now questions the kind of civilian trials that Bush used with Richard Reid and (eventually) Jose Padilla.
But what I’m most amused by is Yoo’s critique of Obama’s choice to forgo torture (kind of).
[He] abjured tough questioning tactics, loosed a special prosecutor on CIA interrogators…
You see, John Yoo has always pretended he neutrally read the law when he wrote his torture memos. He claimed, repeatedly, that he just did the legal analysis and had no stake in the policy decision. He suggested that he didn’t care, one way or another, whether Bush and Cheney embraced torture, he was just the lawyer doing analysis in isolation from those policy questions. He further has claimed that he only approved limited torture, not the techniques described by the press (which happen to match what the CIA IG saw on the torture tapes).
If you haven’t already read these two posts at Danger Room, you should do so. It reports and elaborates on the discussion at a Congressional hearing yesterday about whether or not our use of drones is legal.
As you recall, State Department Legal Advisor Harold Koh recently justified the use of the drones because they operated within law of war principles.
First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and
Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.
But whether or not you buy that second bit–that we’re not causing excessive civilian losses with our sloppy drone targeting–there’s something Koh didn’t address: how the drones fit into the schema we’ve adopted surrounding who is and is not a legal combatant in this war. From Loyola Law Professor David Glazier’s statement for the hearing:
A complicating factor in the current conflict is the United States’ failure to clearly classify our adversaries within any recognized law of war categorization. If we consider al Qaeda and Taliban fighters as combatants then we can lawfully kill them or detain them for the duration of hostilities based simply on establishing that status. The fundamental privilege that the law of war confers on a combatant in exchange for this vulnerability is immunity from domestic laws, which ordinarily criminalize any act of violence to persons or property. As a result of this immunity, sometimes called “the combatant’s privilege,” their conduct must be judged under the law of war rather than ordinary criminal laws. We have refused, however, to accord members of al Qaeda and the Taliban the basic right to engage in combat against us. We have instead treated any such conduct, such as Omar Khadr’s alleged throwing a grenade at an attacking U.S. soldier, as criminal on the ground that these are not uniformed military personnel legally entitled to engage in hostilities. As a matter of law, this is tantamount to declaring these adversaries to be civilians. Civilians who engage in hostile activity can still be attacked, but only for such time as they are directly participating in hostilities. This classification thus imposes additional limitations on our authority to conduct drone strikes (or any other attacks) against them. There have been suggestions that U.S. targeting may have been expanded, at least for some period of time, to include Afghan drug traffickers who were supporting the Taliban with sale proceeds. This would clearly be unlawful by law of war standards, as would direct attacks on other individuals who are merely performing non-combat support functions, such as financiers, bookkeepers, propagandists, etc.
It strikes me as necessary to follow up a bit on the death of the Dawn Johnsen nomination to lead the Office of Legal Counsel at the Department of Justice. Specifically, it needs to be clear the conventional wisdom of the main media, and even a surprising number of normally more clear headed progressive bloggers, that the nomination failed because of opposition from Republican obstruction coupled with opposition by Ben Nelson, is completely and patently false.
The false meme was already in play with the first substantive reporting by Sam Stein at Huffington Post as I noted yesterday. It is being propagated by the Washington Post (Republicans and “moderate lawmakers”), the New York Times (conservatives and two Democrats), even progressive stalwarts like Glenn Greenwald and McJoan at DKos have discussed the effects of the Republicans and Ben Nelson on the torpedoed nomination (although, to be fair, neither ascribes full blame on the GOP and Nelson).
Perhaps the best example of purveying the false wisdom comes from Jake Tapper at ABC. Tapper, in an article supposedly about the Obama White House not having the stomach for a fight on Johnsen, nevertheless proceeds to regurgitate the usual suspects:
Senate Republicans opposed her nomination overwhelmingly, meaning Senate Majority Leader Harry Reid, D-Nev., needed 60 votes to bring her nomination to the floor of the Senate for a vote.
The White House put all the blame on the Republican minority — White House spokesman Ben LaBolt said, “Senate Republicans will not allow her to be confirmed” — but it was a bit more complicated than that.
A Senate Democratic leadership source said that throughout 2009 two Democrats said they would vote against her — Sen. Ben Nelson, D-Neb., and Sen. Arlen Specter, D-Pa. The only Republican of the 40-member GOP caucus who said he would vote for her was her fellow Hoosier, Sen. Dick Lugar, R-Ind.
…..
Specter remained opposed to Johnsen’s nomination even after he switched parties in April 2009, but his primary opponent Rep. Joe Sestak, D-Pa., began to attack Specter for his opposition to her nomination.Johnsen’s nomination expired at the end of 2009, but in January 2010 Specter said he’d vote for her.
This is a bunch of bunk. I have previously written extensively on why there were at least 60 votes for Johnson’s confirmation for the entire second half of last year after Al Franken was sworn in, and why there still were 60 votes for her confirmation this year upon Obama’s renomination, even after the Scott Brown victory in Massachusetts. If you have any question, please click through and refer to those articles; for now though, I want to revisit the false light being painted on Ben Nelson and Arlen Specter on the nomination’s failure. Read more →
Who watches the watchers? Always a valid question; today I want to look at the DOJ Office of Professional Responsibility and its conduct in the investigation of United States governmental attorneys, specifically within the Office of Legal Counsel, involved in the Bush/Cheney torture program. Aside from the facts and conclusions (discussion underway here, here and here), the report is notable for the process producing it, namely the DOJ investigating itself and, not so shockingly, exculpating itself. This will be the first in a series of more specific posts on this blog discussing the multiple, and severe, conflict of interest issues inherent in the OPR Report.
The first, and most obvious, issue of conflict with OPR is that it places evaluation and resolution of ethical complaints against DOJ attorneys in the hands of the DOJ. The power to determine whether there is any impropriety is solely within the hands of those supervising and/or ultimately responsible for the impropriety. Pursuant to 28 C.F.R. § 0.39a, OPR reports directly to the Attorney General and Deputy Attorney General. A vested interest if there ever was one.
Most governmental agencies have independent Inspectors General which operate independently of the agency leadership, have jurisdiction of the entire agency including legal counsel, and thus have credibility as somewhat neutral and detached evaluators and voices. Not so the DOJ, who has arrogated upon themselves the sole right to sit in judgment of themselves. This action to grab the exclusive authority for themselves and exclude the independent IG was first accomplished by Attorney General Order 1931-94 dated November 8, 1994 subsequently codified into the Code of Federal Regulations and reinforced through section 308 of the 2002 Department of Justice Reauthorization Act. Just in time for the war on terror legal shenanigans!
Glenn Fine, the DOJ IG has given Congressional testimony to the US Senate regarding the inherent conflict:
Second, the current limitation on the DOJ OIG’s jurisdiction prevents the OIG – which by statute operates independent of the agency – from investigating an entire class of misconduct allegations involving DOJ attorneys’ actions, and instead assigns this responsibility to OPR, which is not statutorily independent and reports directly to the Attorney General and the Deputy Attorney General. In effect, the limitation on the OIG’s jurisdiction creates a conflict of interest and contravenes the rationale for establishing independent Inspectors General throughout the government. It also permits an Attorney General to assign an investigation that raises questions about his conduct or the conduct of his senior staff to OPR, an entity that reports to and is supervised by the Attorney General and Deputy Attorney General and that lacks the insulation and independence guaranteed by the IG Act.
This concern is not merely hypothetical. Recently, the Attorney General directed Read more →
As Steven Aftergood reports, the WaPo has issued a correction to Dana Priest’s article claiming that Anwar al-Awlaki was added to the CIA’s assassination list.
The article referred incorrectly to the presence of U.S. citizens on a CIA list of people the agency seeks to kill or capture. After The Post’s report was published, a source said that a statement the source made about the CIA list was misunderstood. Additional reporting produced no independent confirmation of the original report, and a CIA spokesman said that The Post’s account of the list was incorrect. The military’s Joint Special Operations Command maintains a target list that includes several Americans. In recent weeks, U.S. officials have said that the government is prepared to kill U.S. citizens who are believed to be involved in terrorist activities that threaten Americans.
Mind you, no one is disputing that al-Awlaki is on the JSOC list. Just that he’s on the CIA list.