Tag: Law

Maybe President Harry S. Truman should have invited Hideki Tojo to the White House for tea and advice. President Obama thinks that it is just fine to invite former Secretary of State, Condoleeza Rice, to the Oval Office to consult with her on Russia, disarmament and other issues. This woman should be in a cell in the Hague for the rest of her life along with George W. Bush, Richard Cheney and Donald Rumsfeld for war crimes.

It was Condoleeza Rice who was Bush’s National Security advisor at the time, said in 2003 during the run up to the Iraq war that Sadaam Hussein had “the infrastructure, nuclear scientists to make a nuclear weapon,” and

“The problem here is that there will always be some uncertainty about how quickly he can acquire nuclear weapons. But we don’t want the smoking gun to be a mushroom cloud.”

It was with Rice’s blessing in Situation Room meetings that included Cheney Rumsfeld, Secretary of State Colin Powell, CIA Director George Tenet and Attorney General John Ashcroft that water boarding and other methods of “enhanced interrogation” were approved and became the norm.

So as Glenn Greenwald points out that instead of prosecuting the “Bush officials who broke the law and instituted a worldwide torture regime”, President Obama has appointed “some of them to occupy the highest positions in my administration and then meet with others in order to drink from the well of their wisdom on a wide range of foreign policy matters.”

No, Glenn, it is not “very childish, shrill and unpragmatic” of you or anyone else to demand that

“the person who presided over the Bush White House’s torture-approval-and-choreographing meetings and who was responsible for the single most fear-mongering claim leading to the Iraq War” be held accountable by this President and the Justice Department which is so hell bent to uphold laws that are discriminatory, unpopular and, most likely, unconstitutional.

But, Ms. Rice gets to have tea in the Oval Office and is consulted by President Obama. All is forgiven.

So far the newest Justice of the Supreme Court, Elena Kagan, is still pretty much an enigma as to her judicial philosophy. The former Solicitor General to President Obama has had to recuse herself from 25 of the 51 cases that will be heard by the Court this session. So far she has sided with the men, mostly conservative, on the two cases that have come before the court.

The first, which Glenn Greenwald feels is the most telling, was the refusal of a stay of execution for Theresa Lewis, the border line mentally retarded woman who was convicted of murder for hiring two hit men. Lewis’ lawyers argued that because she had the intellectual capacity of a 13 year old, also because she had been manipulated by a much smarter conspirator, because she had no prior history of violence and had been a model prisoner, and because the two men who carried out the actual crime received life terms.  The decision by the court was 7 to 2 and, it is argued, that even if Kagan had sided with liberal Justices Ginzburg and Sotomayor it would not have changed the outcome. Still, this is not a good indication that she is as liberal as the Obama administration and the Republicans who objected to her nomination, proclaimed her to be.

The second ruling is a little hazier since she basically sided with the “boys” to not hear a case that involved the violation of the 1st Amendment rights of two Denver residents were removed from a Bush campaign event solely due to a bumper sticker on their car which read:  “No More Blood for Oil.” A lower court had dismissed the case and an that decision was upheld on appeal. Kagan did not join Justice Sotomayor who sided with Justice Ginzburg’s written opinion that dissented from the majority’s refusal to hear the case.

Her answer to questions of where she stood on executive privilege and indefinite detentions during her hearings fro Solicitor General were a clear indication that she was not even close to center let alone left in her opinions.

I am, however, in agreement with Greenwald in his conclusion which is not very optimistic about just how Kagan will rule.

Caution is warranted against reading too much into Kagan’s actions, particularly the latter one.  There are multiple factors which the Court must consider in deciding which cases to take, and a refusal to review a case does not denote agreement with the outcome in the lower court (of the two decisions, Kagan’s refusal to stay the execution is more revealing).  Moreover, in both cases, the outcome would not have changed had Kagan joined Ginsburg and Sotomayor, so it’s possible that her joining with the majority was merely some sort of strategic calculation to curry favor early on.  Still, these two decisions not to join Ginsburg and Sotomayor are substantive ones, and are at least worth noting as very preliminary signs of Kagan’s approach on the Court.

I need not say more

Glen Greenwald: Collapsing Empire Watch

t’s easy to say and easy to document, but quite difficult to really internalize, that the United States is in the process of imperial collapse.  Every now and then, however, one encounters certain facts which compellingly and viscerally highlight how real that is.  Here’s the latest such fact, from a new study in Health Affairs by Columbia Health Policy Professors Peter A. Muennig and Sherry A. Glied (h/t):

   

In 1950, the United States was fifth among the leading industrialized nations with respect to female life expectancy at birth, surpassed only by Sweden, Norway, Australia, and the Netherlands.  The last available measure of female life expectancy had the United States ranked at forty-sixth in the world.  As of September 23, 2010, the United States ranked forty-ninth for both male and female life expectancy combined.

. . .

There is, however, some good news:  the U.S. is now in fifth place in total number of executions, behind only China, Iran, Iraq and Saudi Arabia, and comfortably ahead of Yemen and Sudan, while there are two categories in which the U.S. has been and remains the undisputed champion of the world — this one and this one.

And the rich get richer one life at a time

Covering Up War Crimes

Late last night under cover of Friday darkness, the Obama DOJ filed a brief requesting that U.S. District Judge Robert Bates dismiss a law suit over its targeting of an American citizen for assassination in another country. The government claims that the case would reveal “states secrets”.

Government lawyers called the state-secrets argument a last resort to toss out the case, and it seems likely to revive a debate over the reach of a president’s powers in the global war against al-Qaeda.

Civil liberties groups sued the U.S. government on behalf of Aulaqi’s father, arguing that the CIA and the Joint Special Operations Command’s placement of Aulaqi on a capture-or-kill list of suspected terrorists – outside a war zone and absent an imminent threat – amounted to an extrajudicial execution order against a U.S. citizen. They asked a U.S. district court in Washington to block the targeting.

In response, Justice Department spokesman Matthew Miller said that the groups are asking “a court to take the unprecedented step of intervening in an ongoing military action to direct the President how to manage that action – all on behalf of a leader of a foreign terrorist organization.”

Miller added, “If al-Aulaqi wishes to access our legal system, he should surrender to American authorities and return to the United States, where he will be held accountable for his actions.”

Now if that isn’t a “Catch 22”. . .

“The idea that courts should have no role whatsoever in determining the criteria by which the executive branch can kill its own citizens is unacceptable in a democracy,” the American Civil Liberties Union and Center for Constitutional Rights said.

“In matters of life and death, no executive should have a blank check,” they said.

Is this is the higher bar for keeping “state secrets” that that President Obama had Attorney General Eric Holder set just last year?

Bush and Cheney must be proud of Obama.

Up Date: Marcy Wheeler now has an article on the briefing itself at emptywheel:

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

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

(my emphasis)

Up Date 2: Glenn Greenwald from Salon chimes in:

But what’s most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is “state secrets”:  in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets,” and thus no court may adjudicate its legality. . . .

But he’s not been charged with any crimes, let alone indicted for any.  The President has been trying to kill him for the entire year without any of that due process.  And now the President refuses even to account to an American court for those efforts to kill this American citizen on the ground that the President’s unilateral imposition of the death penalty is a “state secret.”  And, indeed, American courts — at Obama’s urging — have been upholding that sort of a “state secrecy” claim even when it comes to war crimes such as torture and rendition.  Does that sound like a political system to which any sane, rational person would “surrender”?

h/t lambert @ Corrente

See also Stopping Obama’s Targeted Assassinations

Now Cross posted @ FDL‘s The Seminal

Sounds great only problem is that headline is from England. It seems that Liberal Democrats in Britain have far less problem “looking back” in order to “look forward” than the US.

The Liberal Democrats today set out what they think the terms of the government’s upcoming inquiry into torture should be.

In July David Cameron announced a judicial inquiry into Britain’s role in torture and rendition since the al-Qaida attacks on New York and Washington, DC, in September 2001.

The three-person inquiry panel will be headed by Sir Peter Gibson, a former appeal court judge who is currently commissioner for the intelligence services. He will be assisted by Dame Janet Paraskeva, the head of the civil service commissioners, and Peter Riddell, the former Times political commentator who is now a senior fellow at the Institute for Government.

Most of the inquiry will be held in secret, but victims of torture and their representatives will be able to give evidence during open sessions, as will representatives of human rights groups.

In a letter to Gibson, Cameron set out the “parameters” of the inquiry, but the final terms have yet to be made public. These parameters included the changing attitude of “other countries” towards counterterrorism detainees, although it makes clear that “this is an inquiry into the actions of the UK, not any other state”.

Meanwhile despite all his campaign rhetoric, Pres Barack Obama defends torture, rendition, indefinite detention and denies detainees habeus corpus, claiming national security concerns and using state secrets to cover up war crimes.

The President has used the courts and the power of his office to not only defend these horrific policies of the Bush/Cheney administration but has expanded them to include targeting American citizens for assassination and manipulating the law to prevent the courts from reviewing the legality of this practice that denies the victim not only his rights as a US citizen under the Constitution but the victim’s human rights .

The administration’s legal team is debating how aggressive it should be in a brief responding to the lawsuit, which is due Sept. 24. The suit, filed last month, seeks an injunction that would prevent the targeted killing of Anwar al-Awlaki, a radical Muslim cleric who is accused of playing a leading role for Al Qaeda’s branch in Yemen.

Justice Department lawyers are circulating a draft brief with several potential arguments for dismissing the case, and lawyers from national security agencies have met to discuss what should go into the final version. But they have not reached a consensus, according to officials familiar with the discussions, because the arguments seen as strongest also carry significant political and legal risks.

“There are a lot of cross-cutting things going on here, and they have to be very careful about how they litigate this,” said Jack Goldsmith, who was a senior Justice Department lawyer in the Bush administration. “It’s not just a question of winning the case. There is the public diplomacy side, and there are implications for everything else they are doing in the war on terrorism: detention and targeting and other things, too, I imagine.”

The US is still in the shadows and descending even deeper into the darkness.

Jon Aravosis @ AMERICAblog Gay points out that the DNC web site on its “Civil Rights” page,  no longer mentions the repeal of DOMA which was one of the top three promises made to the GLBT community by Candidate Obama.

#  Enacting the Employment Non-Discrimination Act, which includes measures prohibiting discrimination based on sexual orientation and gender identity;

# Ensuring full civil unions and federal rights for LGBT couples;

# Repealing “Don’t Ask, Don’t Tell” in a sensible way that strengthens our armed forces and our national security;

It the DNC now calls for “civil unions”. How about marriage guys?

And WTF does this mean?

Repealing “Don’t Ask, Don’t Tell” in a sensible way that strengthens our armed forces and our national security

Meanwhile, Sen. Sen. Mark Udall (D-CO) and Kirsten Gillibrand (D-NY) have written Attorney General Eric Holder to not appeal Judge Virginia Phillips’ ruling that DADT violates the 1st Amendment.

If this sounds like something out of a Dumas novel, imprisoned on the word of an unknown person without charges, no legal representation or trial, held on an isolated island in a tiny cell with the only contact your jailers who are free to torture and torment you and your fellow inmates, you’d be wrong.  This is the military prison at Guantanamo Naval Base in Cuba where the United States has held people from all over the world who have been charged as enemy combatants since 9/11 during the never ending, nebulous “war on terror”. President Obama promised during his campaign to close it and after his inauguration, he set a deadline of one year to shut it down that has come and gone months ago.

In a Washington Post Op-Ed, Jack Goldsmith, a Harvard Law School professor who served as an assistant attorney general in the George W. Bush administration, has some suggestions for the dilemma that Guantanamo poses, not all of them are legal or constitutional. There are two problems that Mr. Goldsmith attempts to address, closing Guantanamo and trials for the detainees.

Jack Goldsmith: A way past the terrorist detention gridlock

Nine years after Sept. 11 and 20 months into the Obama presidency, our nation is still flummoxed about what to do with captured terrorists. The Obama administration is stuck about where the Bush administration was, with little hope in sight for progress.

Guantanamo Bay has proved harder to close than the Obama administration anticipated. Many terrorists there are too dangerous to release and, for a variety of evidentiary reasons, cannot be brought to trial. Our allies have taken fewer detainees than we would like. These men will thus have to be held in U.S. custody. But neither Congress nor the American people is keen on transferring them to the United States…..

Difficulties with trials have left the Obama administration, like its predecessor, relying primarily on military detention without trial to hold terrorists. Courts have given their general blessing to military detention as a legitimate form of terrorist incapacitation. But military detention still raises hard legal questions, about which Congress has said practically nothing. As a result, unaccountable judges are making fateful detention decisions, demanding release of some whom the administration thinks are dangerous terrorists. President Obama pledged last May to seek congressional clarity on detention but has yet to follow through. The abundant dysfunctions in our system for incapacitating terrorists have led to increased reliance on targeted killings and outsourced renditions, neither of which is optimal from an intelligence-gathering perspective. . . .

First, give up on closing the Guantanamo Bay facility.

Second, acknowledge that military detention will remain the primary basis for holding terrorists, and strengthen the system.

Third, stop using military commissions, which are a good idea in theory but have for nine years proved unworkable in practice.

Fourth, separate the legitimacy of civilian trials from the security of such trials.

Fourth, separate the legitimacy of civilian trials from the security of such trials.

Johnathan Turley:

If torture is a national security secret it should be disclosed

Court Dismisses a Case Asserting Torture by C.I.A. by Charlie Savage

A federal appeals court on Wednesday ruled that former prisoners of the C.I.A.  could not sue over their alleged torture in overseas prisons because such a lawsuit might expose secret government information.

The sharply divided ruling was a major victory for the Obama administration’s efforts to advance a sweeping view of executive secrecy powers. It strengthens the White House’s hand as it has pushed an array of assertive counterterrorism policies, while raising an opportunity for the Supreme Court to rule for the first time in decades on the scope of the president’s power to restrict litigation that could reveal state secrets. . . . .

   The decision bolstered an array of ways in which the Obama administration has pressed forward with broad counter-terrorism policies after taking over from the Bush team, a degree of continuity that has departed from the expectations fostered by President Obama’s campaign rhetoric, which was often sharply critical of President Bush’s approach.

   Among other policies, the Obama team has also placed a United States citizen on a targeted-killings list without a trial, blocked efforts by detainees in Afghanistan to bring habeas-corpus lawsuits challenging their indefinite imprisonment, and continued the C.I.A. rendition program . . . .

   As a senator and candidate for the White House, President Obama had criticized the Bush administration’s frequent use of the state-secrets privilege. In February 2009, when his weeks-old administration reaffirmed the Bush administration’s view on the case, civil libertarian groups that had supported his campaign expressed shock and dismay.

Glen Greenwald points out how far we haven fallen:

here’s what The New York Times’ John Schwartz reported in February, 2009, when the Obama DOJ first told the 9th Circuit that they were going to assert the same “state secrets” arguments in this case which the Bush DOJ made:  

“In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.”

 

Schwartz described how the judges on the appellate panel were so startled that they actually asked multiple times if the Obama DOJ was really sticking with the Bush position, as though they couldn’t believe what they were hearing.  What a quaint time that was, when people were surprised by Obama’s replicating Bush’s secrecy and Terrorism positions — the very ones he so vehemently condemned when running for President. After 18 months of seeing this over and over in multiple realms, nobody would react that way now.

The ACLU’s Ben Wizner on the decision:    

This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation’s reputation in the world. To date, not a single victim of the Bush administration’s torture program has had his day in court. If today’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history.

h/t Marcy Wheeler @ FDL

My stand on torture, rendition, targeted assassinations, Guantanamo, Baghram, the two wars is pretty clear. These are war crimes. As per the Nuremberg Principles which the US signed and ratified, covering up the evidence is a war crime. There is already enough evidence to arrest and prosecute George W. Bush and Richard Cheney, along with their co-conspirators at the Hague. There is no statute of limitations, either.

Writing on Slate, the noted conservative constitutional scholar, Bruce Fein notes:

President Obama pledged to restore the rule of law. But the state-secrets-privilege wars with that promise.

I give you this from Paul Rosenberg at Open Left with regards to this case,

Obama Embraces Nazi Nurermberg Trials Logic: “They Were Only Following Orders”:

Only if You’re A Republican

Transcript available here

CREW: DELAY MUST ANSWER FOR HIS CRIMES

“It’s a sad day for America when one of the most corrupt members to ever walk the halls of Congress gets a free pass. As we continue the work of building a Washington that is worthy of the American people, the Justice Department’s decision not to prosecute Mr. DeLay for his actions sends exactly the wrong message to current and future members. The fact that Jack Abramoff, Bob Ney (R-OH) and former Interior official J. Steven Griles are the only three people who went to prison for one of the worst corruption scandals in congressional history is shocking. The Hammer belongs in the slammer. Mr. DeLay still has crimes to answer for in Texas – generally not considered the best place to be a criminal defendant.”

h/t Crooks & Liars