Tag Archive: Rendition

Dec 22 2011

Yes, We Can: The Case for Indefinite Detention & Rendition

Twist as the president’s supporters might with the “look over here” tactic, the National Defense Authorization Bill (NDAA) does not change any existing law that Barack Obama has interpreted to mean he has the power to throw your sorry butt in prison anywhere in the world for as long as he chooses. Or he can just declare you a terrorist without providing evidence and have you executed without due process. Ignoring the Authorization to Use Military Force (AUMF) that was recently renewed giving the president the authority to send in the military to fight that ubiquitous enemy “terror”, the Obama loyalists, keep pointing to section 1022 of the NDAA, the section that makes military detention presumptive for non-citizens but doesn’t foreclose military detention of US citizens, while completely ignoring section 1021, the section that affirms the President’s authority to indefinitely detain people generally. As Marcy Wheeler at emptywheel points out while the NDAA does not authorize indefinite detention for American citizens, it does not foreclose the possibility either:

The NDAA doesn’t do anything to exempt Americans from indefinite detention. And the reason it doesn’t-at least according to the unrebutted claims of Carl Levin that I reported on over a month ago-is because the Administration asked the Senate Armed Services Committee to take out language that would have specifically exempted Americans from indefinite detention.

   The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”  The Administration asked that this language be removed from the bill. [my emphasis]

So the effect is that (as Lawfare describes in detail) the bill remains unclear about whether Americans can be detained indefinitely and so we’re left arguing about what the law is until such time as a plaintiff gets beyond the Executive Branch’s state secrets invocations to actually decide the issue in court.

Nor did the amendment from Sen. Diane Feinstein clarify that point either, in fact, she may have codified it. So the only recourse is for some poor fool to have his civil liberties abrogated and try to fight in court without being allowed access to lawyers or courts. Those are some hurdles. Scott Horton, contributing editor at Harper’s magazine and New York attorney known for his work in human rights law and the law of armed conflict, discussed this with Keith Olbermann:

Constitutional expert and George Washington University law professor, Jonathan Turley, appeared on C-Span with his take on this discussion. He made it very clear that Obama says that he can assassinate American citizens living on U.S. soil:

(starting at 15:50):

President Obama has just stated a policy that he can have any American citizen killed without any charge, without any review, except his own. If he’s satisfied that you are a terrorist, he says that he can kill you anywhere in the world including in the United States.

Two of his aides just … reaffirmed they believe that American citizens can be killed on the order of the President anywhere including the United States.

You’ve now got a president who says that he can kill you on his own discretion. He can jail you indefinitely on his own discretion [..]

I don’t think the the Framers ever anticipated that [the American people would be so apathetic]. They assumed that people would hold their liberties close, and that they wouldn’t relax …

h/t Washington’s Blog

How quickly the president’s defenders forget Anwar al-Awlaki. Marcy points to the contortions of the law that Obama used to justify his assassination and then issued a “secret memorandum” which was conveniently “leaked” to New York Times reporter Charles Savage:

And, as Charlie Savage has reported, the legal justification the Administration invented for killing an American citizen in a premeditated drone strike consists of largely the same legal justification at issue in the NDAA detainee provisions.

           

  • The 2001 AUMF, which purportedly defined who our enemies are (though the NDAA more logically includes AQAP in its scope than the 2001 AUMF)
  •            

  • Hamdi, which held the President could hold an American citizen in military detention under the 2001 AUMF
  •            

  • Ex Parte Quirin, which held that an American citizen who had joined the enemy’s forces could be tried in a military commission
  •            

  • Scott v. Harris (and Tennesee v. Garner), which held that authorities could use deadly force in the course of attempting to detain American citizens if that person posed an imminent threat of injury or death to others
  •    In other words, Obama relied on substantially the same legal argument supporters of the NDAA detainee provisions made to argue that indefinite detention of American citizens was legal, with the addition of Scott v. Harris to turn the use of deadly force into an unfortunate side-effect of attempted detention.

    There is no question that the Obama administration, by signing the NDAA, believes that it has the broad power to indefinitely detain and assassinate American citizens and guarantees that the next president will too.

    The late George Carlin said it several years ago, “this country is circling the drain“.  

    May 16 2011

    The Reason We Need Wikileaks

    Now more than ever, the reason for Wikileaks to exist: the preservation of what remains of the rule of law and the US Constitution. From Marcy Wheeler at FDL:

    SCOTUS: Govt Can Use State Secrets to Hide Crimes

    SCOTUS just declined to take the Jeppesen Dataplan suit.

    The high court rejected an appeal by five men who claimed that U.S. operatives-with support from Jeppesen Dataplan Inc., a Boeing unit-abducted them and sent them to other countries where they were tortured. They alleged Jeppesen provided critical flight planning and logistical support to the CIA’s “extraordinary rendition” program. The men were seeking unspecified monetary damages from the company.

    This effectively means that men like Binyam Mohamed, who the Brits have admitted was tortured after being rendered, cannot sue for redress. And the ruling is particularly egregious since a Jeppesen executive admitted that his company was flying rendition flights.

    In effect, SCOTUS’ decision not to take this case leaves in place state secrets precedent that allows the government to commit grave crimes, but hide behind state secrets.

    Update: The Brennan Center and a bunch of other crazy hippies who believe in rule of law wrote a letter in response to SCOTUS’ decision to DOJ reminding them that, per their purported state secrets policy, credible allegations of wrong-doing must be referred to the Inspectors General of the relevant agencies for investigation.

    snip

    This is me officially holding my breath for the Obama Administration to do what they promised on this front.

    Don’t hold your breath, Marcy. I have no expectations of the Obama administrations doing anything they promised regarding the rule of law and the Constitution. Dick Cheney must be proud.