Tag: Law

This piece is my most viral piece to date and appeared on Daily Kos on December 15, 2011. It's an ironic diary coming from myself given all the economic pieces I write but I do have range on other issues, too. It's about the NDAA and is still relevant because the US can still indefinitely detain American citizens, and the White House has never been able to properly define the terms "associated forces" among others things with regard to Al Qaeda. Section 1021 can still be used to indefinitely detain American citizens.

You may recognize my illustration about the NDAA as well which is also still relevant.

Not that it should only be a worry if it happens to American citizens. This war on terror George W. Bush league crap that the Obama administration is still peddling, even with its signing statement claiming it won't matter while they are in the White House, assuming, of course, no Republican will ever win an election again. That is ridiculous, insulting, and a major assault on the Bill of Rights. This is further compounded with the White Paper and the Rand Paul filibuster in which he didn't get an answer to his simple question really on how they define the term "engaged in combat" when it comes to whether they can order a drone strike on an American citizen on American soil. This one is still relevant so enjoy.

Processing the President's Disdain for Due Process

That’s right. You know what’s going on.

This administration never threatened to veto the NDAA because of civil liberties concerns. This administration is using the same fear mongering that the Bush administration has used concerning Al Qaeda to codify the unchecked executive power it has claimed erroneously for itself in the exact same way.

Once again Sen. Elizabeth Warren demonstrated why the voters of Massachusetts sent her to the Senate when in a Senate Banking Committee hearing about money laundering, she questioned why British bank HSBC is still doing business in the U.S., with no criminal charges filed against it, despite confessing to what one regulator called “egregious” money laundering violations

Her comments came just a day after the attorney general of the United States confessed that some banks are so big and important that they are essentially above the law. His Justice Department’s failure to bring any criminal charges against HSBC or its employees is Exhibit A of that problem.

(..) Warren grilled officials from the Treasury Department, Federal Reserve and Office of the Comptroller of the Currency about why HSBC, which recently paid $1.9 billion to settle money laundering charges, wasn’t criminally prosecuted and shut down in the U.S. Nor were any individuals from HSBC charged with any crimes, despite the bank confessing to laundering billions of dollars for Mexican drug cartels and rogue regimes like Iran and Libya over several years.

Defenders of the Justice Department say that a criminal conviction could have been a death penalty for the bank, causing widespread damage to the economy. Warren wanted to know why the death penalty wasn’t warranted in this case.

“They did it over and over and over again across a period of years. And they were caught doing it, warned not to do it and kept right on doing it, and evidently making profits doing it,”

“How many billions of dollars do you have to launder for drug lords and how many economic sanctions do you have to violate before someone will consider shutting down a financial institution like this?”

“You sit in Treasury and you try to enforce these laws, and I’ve read all of your testimony and you tell me how vigorously you want to enforce these laws, but you have no opinion on when it is that a bank should be shut down for money laundering?”

“If you’re caught with an ounce of cocaine, the chances are good you’re gonna go to jail. If it happens repeatedly, you may go to jail for the rest of your life,” Warren said. “But evidently if you launder nearly a billion dollars for drug cartels and violate our international sanctions, your company pays a fine and you go home and sleep in your bed at night — every single individual associated with this. And I think that’s fundamentally wrong.”

As staunch an opponent of the death penalty as I am, I would have voted for it and watched the “execution” of HSBC with glee.

Democracy Now‘s Amy Goodman wrote in The Guardian that Americans should be ashamed that Rand Paul and the radical Tea Party Republicans were the only ones talking about drone executions.

Members of Congress, tasked with oversight of intelligence and military matters, have repeatedly demanded the memoranda from the White House detailing the legal basis for the drone program, only to be repeatedly denied. The nomination of Brennan has opened up the debate, forcing the Obama administration to make nominal gestures of compliance. The answers so far have not satisfied Senator Paul. [..]

The issue of extrajudicial execution of US citizens, whether on US soil or elsewhere, is clearly vital. But also important is the US government’s now-seemingly routine killing of civilians around the world, whether by drone strikes, night raids conducted by special operations forces or other lethal means. [..]

Barack Obama and John Brennan direct the drone strikes that are killing thousands of civilians. It doesn’t make us safer. It makes whole populations, from Yemen to Pakistan, hate us. Senator Paul’s outrage with the president’s claimed right to kill US citizens is entirely appropriate. That there is not more outrage at the thousands killed around the globe is shameful … and dangerous.

For a thoughtful discussion of the Awlaki assassinations and the president’s claim that he can legally do so, Ms. Goodman was joined by Scott Shane, national security reporter for The New York Times and, in the second video, Jesselyn Radack, National Security & Human Rights director at the Government Accountability Project .

As John Brennan is confirmed to head the CIA, we examine one of the most controversial U.S. targeted killings that occurred during his time as Obama’s counterterrorism adviser: the killing of Anwar al-Awlaki. The U.S.-born cleric died in a U.S. drone strike in September 2011, along with American citizen Samir Khan. Al-Awlaki’s 16-year-old son, Abdulrahman, was also killed in a separate drone strike just weeks later. On Sunday, The New York Times published a major front-page article on the killing of Anwar al-Awlaki called “How a U.S. Citizen Came to Be in America’s Cross Hairs.” The New York Times‘ Scott Shane, one of the reporters on the piece, joins us from Washington, D.C. includes rush transcript

The New York Times’ front-page account of the U.S. assassination of Anwar al-Awlaki has drawn criticism from critics of the Obama administration’s targeted killings overseas. In a joint statement, the American Civil Liberties Union and the Center for Constitutional Rights called the story “the latest in a series of one-sided, selective disclosures that prevent meaningful public debate and legal or even political accountability for the government’s killing program.” We discuss the article and the White House assassination program with two guests: Scott Shane, national security reporter at The New York Times, and Jesselyn Radack, National Security & Human Rights director at the Government Accountability Project and former legal ethics adviser at the Justice Department. includes rush transcript

From Marcy Wheeler at emptywheel in which she shreds the NYT’s article and its authors:

Anwar al-Awlaki Is the New Aluminum Tube

Mark Mazzetti, Charlie Savage, and Scott Shane team up to provide the government’s best case – and at times, an irresponsibly credulous one – for the killing of Anwar al-Awlaki and the collateral deaths of Samir Khan and Abdulrahman al-Awlaki.

Yet even in a 3,600 word story, they don’t present any evidence against the senior Awlaki that was fresher than a year old – the October 2010 toner cartridge plot – at the time the Yemeni-American was killed. (I’m not saying the government didn’t have more recent intelligence; it just doesn’t appear in this very Administration-friendly case.) Not surprisingly, then, the story completely ignores questions about the definition of “imminent threat” used in the OLC memo and whether Awlaki was an “imminent” threat when he was killed. [..]

Moreover, the case they do present has various weaknesses.

The “linked in various ways” standard for killing Americans

The story provides a fair amount of space to Awlaki’s celebration of the Nidal Hasan attack (though it does make it clear Awlaki did not respond enthusiastically to Hasan’s queries before the attack). [..]

It uses far vaguer language to describe Awlaki’s role in the Faisal Shahzad and toner cartridge plots.

NYT doesn’t care about problems with the Abu Tarak explanation

Which leaves the UndieBomb attack as the sole attack in which the NYT presents evidence about Awlaki’s direct role. But there’s a problem with their claims there, too. [..]

NYT finally finds a WikiLeaks cable it doesn’t like!

There’s one other really irresponsible piece to this story. [..]

It is our job, and that of Congress, to ask these questions and hold the president responsible for violations of our civil liberties.

The shame of the Democrats and the so-called progressives is that it was a Tea Party Republican, Sen. Rand Paul (R-KY), who stood up for civil liberties and the ever expanding executive power with his thirteen hour filibuster. In his article at The Guardian, Glenn Greenwald shreds the progressive Democratic myths and distortions about Sen. Paul’s filibuster and its importance.

In Glenn’s first point, he notes the lack of any empathy for the those whose rights are most abused and dismissed with an “it’s not me; it’s them” attitude.

(1) Progressives and their “empathy gap”

The US government’s continuous killing, due-process-free imprisonment, and other rights abuses under the War on Terror banner has affected one group far more than any other: Muslims and, increasingly, American Muslims. Politically, this has been the key fact enabling this to endure. Put simply, if you’re not Muslim, it’s very easy to dismiss, minimize or mock these issues because you can easily tell yourself that they don’t affect you or your family and therefore there is no reason to care. And since the vast, vast majority of Democratic politicians and progressive media commentators are not Muslim, one continuously sees this mentality shaping reaction to these issues. [..]

For a political faction that loves to depict itself as the champions of “empathy”, and which reflexively accuses others of having their political beliefs shaped by self-interest, this is an ironic fact indeed. It’s also the central dynamic driving the politics of these issues: the US government and media collaborate to keep the victims of these abuses largely invisible, so we rarely have to confront them, and on those rare occasions when we do, we can easily tell ourselves (false though the assurance is) that these abuses do not affect us and our families and it’s therefore only “paranoia” that can explain why someone might care so much about them.

Second, what Sen. Paul’s critics missed, or just blithely ignored, was that this was about the president’s claim to have the authority to assassinate an American citizen on American soil, or for that matter, anywhere else.

(2) Whether domestic assassinations are imminent is irrelevant to the debate

To focus on that attack is an absurd strawman, a deliberate distraction from the real issues, a total irrelevancy. That’s true for two primary reasons.

First, the reason this question matters so much – can the President target US citizens for assassination without due process on US soil? – is because it demonstrates just how radical the Obama administration’s theories of executive power are. Once you embrace the premises of everything they do in this area – we are a Nation at War; the entire globe is the battlefield; the president is vested with the unchecked power to use force against anyone he accuses of involvement with Terrorism – then there is no cogent, coherent way to say that the president lacks the power to assassinate even US citizens on US soil. That conclusion is the necessary, logical outcome of the premises that have been embraced. That’s why it is so vital to ask that. [..]

Second, presidents change, and so do circumstances. The belief that Barack Obama – despite his record – is too kind, too good, too magnanimous, too responsible to target US citizens for assassination on US soil is entirely irrelevant. At some point, there will be another president, even a Republican one, who will inherit the theories he embraces. Moreover, circumstances can change rapidly, so that – just as happened with 9/11 – what seems unthinkable quickly becomes not only possible but normalized.

In his third and final point, debunks the argument that this was over Holder’s first letter to Sen Paul, not that his second was any more satisfactory.

(3) Holder did not disclaim the power to assassinate on US soil

Indeed, the whole point of the Paul filibuster was to ask whether the Obama administration believes that it has the power to target a US citizen for assassination on US soil the way it did to Anwar Awlaki in Yemen. The Awlaki assassination was justified on the ground that Awlaki was a “combatant”, that he was “engaged in combat”, even though he was killed not while making bombs or shooting at anyone but after he had left a cafe where he had breakfast. If the Obama administration believes that Awlaki was “engaged in combat” at the time he was killed – and it clearly does – then Holder’s letter is meaningless at best, and menacing at worst, because that standard is so broad as to vest the president with exactly the power his supporters now insist he disclaimed.

The phrase “engaged in combat” has come to mean little more than: anyone the President accuses, in secrecy and with no due process, of supporting a Terrorist group. Indeed, radically broad definitions of “enemy combatant” have been at the heart of every War on Terror policy, from Guantanamo to CIA black sites to torture. [..]

At best, Holder’s letter begs the question: what do you mean when you accuse someone of being “engaged in combat”? And what are the exact limits of your power to target US citizens for execution without due process? That these questions even need to be asked underscores how urgently needed Paul’s filibuster was, and how much more serious pushback is still merited. But the primary obstacle to this effort has been, and remains, that the Democrats who spent all that time parading around as champions of these political values are now at the head of the line leading the war against them.

This is not a country of secret laws and courts. It is incumbent on the Congress to do its Constitutional duty to question the Executive Branch and hold it in check when it over steps its Constitutional authority.

That this president has expressed the belief that he has the authority to assassinate Americans without due process, and in fact has, should be abhorrent to every American no matter which side of the aisle you favor.  

Between having to admit that it was too big to prosecute (TBTP) the Too Big To Fail (TBTF) banks, his testimony on the legality of targeted assassinations and having to clarify lethal drone attacks on Americans in America after Rand Paul’s thirteen hour filibuster, Attorney General Eric Holder has not has a good week.

In his testimony before the Senate Judiciary Committee, AG Holder responded to Iowa Republican Sen. Chuck Grassley’s concern that the “mentality of too-big-to-jail in the financial sector” was leading to the spread of terrorism (re:HSBC) with this:

HOLDER: The concern that you have raised is one that I, frankly, share. And I’m not talking about HSBC now. That (inaudible) be appropriate.

But I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy. And I think that is a function of the fact that some of these institutions have become too large.

Never mind laundering money for terrorist activity and giving it a pass, it’s all about protecting the world’s 1%. The Federal Reserve just keeps handing them $83 billion in handouts every year while Obama negotiates away Social Security and Medicare benefits at fancy dinners in Washington posh hotels with Republicans.

If they’re TBTP, then it time to break them up

Then came Kentucky’s Republican Sen. Rand Paul’s pique over Mr. Holder’s failure to answer three inquiries regarding armed drone attacks on Americans on American soil. Sen Paul’s 13 hour filibuster which at times bizarre (you try talking for that long and not sound a little weird) causing Mr. Holder to back off on his assertion that the president can do just that. In his second letter, Mr. Holder told Sen. Paul that the president would not have the authority to order a drone to kill an American citizen on U.S. soil who was “not engaged in combat.”. How nice, he can’t use drones. But AG holder can take solace, the author of the Bush administration legal memos justifying the use of torture, John Yoo, thinks thinks “President Obama is really getting too much grief over targeted killing“:

“I admire libertarians but I think Rand Paul’s filibuster in many ways is very much what libertarians do, they make these very symbolic gestures, standing for some extreme position,” said Yoo, now a UC Berkeley law professor, who once suggested it was okay for the president to order a child’s testicles be crushed. Referring to Paul’s marathon filibuster, an attempt to force the Obama administration to clarify its views on the use of military force against terror suspects in the United States, Yoo said “It sort of reminds me of young kids when they first read The Fountainhead or Atlas Shrugged and they suddenly think that federal taxation equals slavery and they’re not going to pay any federal taxes anymore.” Yoo’s statements were made on a conference call Thursday held by the Federalist Society, an influential conservative legal organization.

Now that’s an endorsement you can take to a war crimes trial.

It is unconstitutional to target a group or an individual without due process under Article I, Section 10, Clause 1 of the Constitution which bans bills of attainder, and the Fifth Amendment.

So long as this president has a list of people he thinks can be targeted for assassination without due process, by armed drone or any other means, there are should to be questions and not just from a handful of Tea Party Libertarians. As for AG Holder, if he can’t prosecute banks or uphold the Constitution, then he should be fired, resign or impeached.

I’m not a fan of Rand Paul, the Tea Party backed Republican Senator from Kentucky but I have to give him credit for pushing for an answer to his question “whether the president has the power to authorize lethal force, such as a drone strike, against a US citizen on US soil.” Sen. Paul sent three letters to CIA director nominee John Brennan and finally got his answer from Brennan and from Attorney General Eric Holder. The answer, in so many words, yes, he can and on American soil without due process.

Click on image to enlarge

The Obama administration has asserted that it believes that “under an extraordinary circumstance,” it has the power to assassinate an American citizen on American soil using lethal force.

…It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States. For example, the President could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances of a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001…

Sen. Paul was appalled at Mr. Holder’s response,  “The U.S. Attorney General’s refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening – it is an affront the Constitutional due process rights of all Americans.”

At FDL’s The Dissenter, Kevin Gosztola had his observation about the letter:

Though Holder noted the country’s “long history of using the criminal justice system to incapacitate individuals located” in America “who pose a threat to the United States” and he contended “the use of military force” would be rejected “where well-established law enforcement authorities in the country provide the best means for incapacitating the terrorist threat,” the mere fact that his answer was a yes is outrageous. However, it fits the framework for fighting a permanent global “War on Terrorism” without any geographical limitations, which the Obama administration has maintained it has the authority to wage.

Guardian writer Glenn Greenwald, speaking at the Freedom to Connect conference, said today, “There is a theoretical framework being built that posits that the US Government has unlimited power, when it comes to any kind of threats it perceives, to take whatever action against them that it wants without any constraints or limitations of any kind.”

Paul had to send three letters to Brennan and the question had to be raised by someone in a Google+ chat with the president before the Obama administration would give something resembling an appropriate answer because, as Greenwald suggested saying “yes” would “illustrate the real radicalism that the government has embraced in terms of how it uses its own power.” If they said “no,” it would “jeopardize this critical theoretical foundation that they very carefully have constructed that says there are no cognizable constraints on how US government power can be asserted.”

As it turns out, Holder, the Justice Department and the wider Obama administration opted to not jeopardize the framework.

What Charles Pierce said

This is that into which we have rendered ourselves. As a democracy, we now debate only what kind of monsters we may decide we have to be.

On Sept. 11, 2001, Marine Lt. Col. Stuart Couch’s friend died co-piloting the second plane to hit the World Trade Center. Soon after, Couch became one of the first military prosecutors assigned to the U.S. military base at Guantánamo Bay to prosecute men alleged to have carried out the terrorist plot. He ultimately would refuse to prosecute one detainee: Mohamedou Ould Slahi. “It became clear that what had been done to Slahi amounted to torture,” Couch says. “Specifically, he had been subjected to a mock execution. He had sensory deprivation. He had environmental manipulation; that is, cell is too cold, or the cell is too hot. … He was presented with a ruse that the United States had taken custody of his mother and his brother and that they were being brought to Guantánamo.” Couch says he concluded Slahi’s treatment amounted to illegal torture. “I came to the conclusion we had knowingly set him up for mental suffering in order for him to provide information,” Couch said. “We might very well have a significant problem with the body of evidence that we were able to present as to his guilt.”

Law professor Lawrence Lessig marked his appointed as Roy L. Furman Professor of Law and Leadership at Harvard Law School with a lecture dedicated to the memory of internet activist Aaron Swartz and his work. Prof. Lessig was a close friend and mentor to Aaron and his death was a great loss to him. He had planned to lecture on corruption but after Aaron’s death decided to discuss Aaron’s Law and his work:

At the center of [Aaron’s] struggle is and was copyright.  In the debate between people who are pro and anti copyright, Aaron was on neither side.”  Rather, he opposed “dumb copyright.”  A perfect example was Swartz’s efforts to liberate data from PACER the database of public court records, which charged 8 cents a page.  He was not violating copyright, technical restraints, terms of service or any other prohibitions.  He had found a loophole.  “A loophole for public good” as opposed to the loopholes used for private gain by lobbyists and tax lawyers.  Swartz did the same thing with the government’s database of issued copyrights.  The PACER project got Aaron FBI surveillance; the copyright project, on the other hand, was met with approval by the Copyright Office.  Using all this as proof Lessig continued to emphasize that Aaron was a hacker.  He defines “hacker” as one who uses technical knowledge to make a better world.

According to Lessig, Aaron was his mentor, not the other way around.  The two worked together, upon Aaron’s insistence, on anti-corruption campaign for a while before they split again: while Aaron wanted to turn Barrack Obama into Elizabeth Warren, Lessig wanted Obama to pick up the fight with corruption he had promised in 2008.  Without that fight, the defenders of the status quo would defeat real change.

Yes, unlike what was sold to us about Dodd Frank, there are in effect already backdoor bailouts before our very eyes if we care to look. This one involves the most important regulator of our entire financial system, the New York Fed, intervening to let Bank of America off the hook for its residential mortgage backed securities fraud.  

Nearly a year ago Rolling Stone contributing editor, Matt Taibbi wrote about how the Bank of America had defrauded everyone yet the US government kept bailing it out. They got a slap on the wrist and a paltry $$137 million fine for bilking needy schools and cities all the while plotting to rig global interest rates. In that same article from March 29th, 2012, Matt noted that BoA was still failing, yet they were still being bailed out. Why? The government’s excuse then and still is that they are too big to fail and too big too jail.

This was not fixed by Dodd-Frank and the promise to investigate the mortgage fraud and hold the banks accountable for bringing down the housing market and the economy along with it never materialize.

On Saturday in her New York Times article Gretchen Morgenson revealed that, we, the American taxpayer, are still bailing out Bank of America in secret deals :

That the New York Fed would shower favors on a big financial institution may not surprise. It has long shielded large banks from assertive regulation and increased capital requirements.

Still, last week’s details of the undisclosed settlement between the New York Fed and Bank of America are remarkable. Not only do the filings show the New York Fed helping to thwart another institution’s fraud case against the bank, they also reveal that the New York Fed agreed to give away what may be billions of dollars in potential legal claims.

Here’s the skinny: Late last Wednesday, the New York Fed said in a court filing that in July it had released Bank of America from all legal claims arising from losses in some mortgage-backed securities the Fed received when the government bailed out the American International Group in 2008. One surprise in the filing, which was part of a case brought by A.I.G., was that the New York Fed let Bank of America off the hook even as A.I.G. was seeking to recover $7 billion in losses on those very mortgage securities.

It gets better.

What did the New York Fed get from Bank of America in this settlement? Some $43 million, it seems, from a small dispute the New York Fed had with the bank on two of the mortgage securities. At the same time, and for no compensation, it released Bank of America from all other legal claims.

[…] To anyone interested in holding banks accountable for mortgage improprieties, the Fed’s actions are bewildering. If the Fed intended that Maiden Lane II own the right to sue Bank of America for fraud, why didn’t it pursue such a potentially rich claim on behalf of taxpayers? The Fed made $2.8 billion on the Maiden Lane II deal, but the recovery from Bank of America could have been much greater. Why did it instead release Bank of America from these liabilities and supply declarations that seem to support the bank in its case against A.I.G.?

The New York Fed would not discuss this matter, citing the litigation. But taxpayers, who might have benefited had the New York Fed brought fraud claims, deserve answers to these questions.

[…] A New York Fed spokesman said it supported the settlement because it would generate significant value without potentially high litigation costs.

Let’s recap: For zero compensation, the New York Fed released Bank of America from what may be sizable legal claims, knowing that A.I.G. was trying to recover on those claims.

If they’re too big to fail, to big to jail then these banks should be too big to exist.