Tag: Constitution

Ready or not, here it comes, filibuster reform. Or so says Senate Majority Leader Harry Reid:

WASHINGTON — Keeping with his post-election pledge to reform the filibuster, Senate Majority Leader Harry Reid (D-Nev.) on Tuesday proffered that changes to the rules of the upper chamber will be made, leaving it up to Republicans if they would like to participate. [..]

“There are discussions going on now [over filibuster reform], but I want to tell everybody here. I’m happy I’ve had a number of Republicans come to me, a few Democrats,” Reid told reporters Tuesday at his weekly press availability. “We’re going to change the rules. We cannot continue in this way. I hope we can get something that the Republicans will work with us on.”

“But it won’t be a handshake,” he added. “We tried that last time. It didn’t work.” [..]

Senate Minority Leader Mitch McConnell, who has repeatedly slammed Democratic efforts to reform the filibuster, was unmoved by Reid’s statement.

“Well, there is growing Democratic unease with breaking the rules to change the rules,” McConnell said later Tuesday at his weekly press conference. “I think it will be very difficult for that to come about. I think it will be bad for the Senate.”

McConnell added that in accordance with Senate rules, such an effort would require a 67-vote majority, and that Reid’s approach to make the changes with a simple 51-vote majority — a procedure that has been labeled a “nuclear option” by its opponents — would be “bad for the institution, bad for the country.”

It’s only breaking the rules if the other side does it. Otherwise it is perfectly within the rules on the first day of the new congress.

Sal Gentile, a staff member for MSNBC’s Up with Chris Hayes, writes:

If President Obama wants to get anything done in his second term, Democrats in the Senate will have to overcome one major obstacle: the filibuster.

In the last four years, Republicans have used the filibuster to prevent landmark pieces of legislation-such as the DREAM Act, the Paycheck Fairness Act and additional measures to stimulate the economy-from even reaching the floor for debate, let alone a vote. Republicans have shattered previous records for filibuster use, and the share of bills introduced in the Senate that have been passed has reached an all-time low. [..]

The filibuster has mutated over the years from a quirk of the Senate rules and an obscure procedural instrument-known mostly for so-called “lone wolf” filibusters like the one from the iconic film Mr. Smith Goes to Washington – to a routine impediment to legislative progress, a bludgeon used by the Republican minority to quash virtually any attempt by Democrats to govern. [..]

The proposed changes, which have the strong backing of Senate Majority Leader Harry Reid and nearly 51 Democratic senators, are also broadly endorsed by a wide range of Constitutional scholars and the public at large. A new Huffington Post/YouGov poll released Friday found that 65% of Americans favor tweaking the rules to require senators to debate a bill on the floor if they wish to block it from proceeding.

Even the man responsible for enforcing and administering the rules of the Senate endorsed some of the changes. In an interview on Up w/ Chris Hayes Saturday, Alan Frumin, who served as the parliamentarian of the Senate for nearly two decades until he retired last year, said he supported changes that would forbid senators from filibustering bills before they reach the floor for debate. Frumin also said he favored changes that would bar senators from blocking bills once those bills have passed the Senate and are ready to move to a conference committee with the House. [..]

The filibuster is nowhere mentioned in the Constitution, and many of the Founders argued forcefully against proposals that would have required more than 51 votes to pass legislation in the Senate. In 1788, for example, James Madison, known as the ‘Father of the Constitution,” wrote in Federalist No. 58 that requiring a supermajority in the Senate would “reverse” the “fundamental principle of free government.” Such a policy would empower special interests and make government “oligarchic,” Madison said.

“An interested minority might take advantage of it to screen themselves from equitable sacrifices,” Madison wrote, rather prophetically. “Or, in particular emergencies, to extort unreasonable indulgences.“

Sen. Jeff Merkley, D-Ore., a leading advocate of filibuster reform, joined Up host, Chris Hayes for a discussion on the prospects of filibuster reform in the Senate. Adding the views are panel guests Alan Frumin, former Senate Parliamentarian and author of  “Riddicks Senate Procedure;” Akhil Amar, Yale Law School professor and author of “America’s Unwritten Constitution: The Precedents and Principles We Live By;” Victoria DeFrancesco Soto, MSNBC contributor, senior analyst at Latino Decisions and fellow at the LBJ School of Public Affairs at the University of Texas-Austin; and Richard Arenberg, co-author of “Defending the Filibuster: The Soul of the Senate.”

Jon Walker at FDL Action was pretty miffed at this editorial in the Los Angeles Times regarding filibuster reform, especially this really stupid paragraph:

One response would be to eliminate the filibuster altogether. As a Senate rule, it can be changed by the majority party, and Democrats could eliminate it (though, of course, Republicans would almost certainly filibuster such a move). That, however, would also do away with the filibuster’s legitimate and historic place. Rather than eliminating the rule, the better approach would be to amend it in such a way as to preserve the ability for minorities to fight against one-party steamrolling while scaling back the filibuster’s capacity for obstructing everything.

Yikes! This is not only stupid, as Jon said, but it is wrong about how the Senate rules can be changed. Rules changes can’t be filibustered. While making such a rule change in the Senate would normally require a 67-vote majority, but when the Senate comes back into session in January, Democrats could use a set of procedural rules often called the “nuclear option” and pass the changes with a simple 51-vote majority. That scares the pants off the Republicans and had Senate Minority Leader Mitch McConnell blustering and making:

The Kentucky Republican said changing the filibuster – which was designed to protect the minority but has become a tool for constant gridlock in the modern Senate – would fundamentally alter how the Senate operates.

McConnell accused Democrats of trying to employ a “naked power grab.”

“In the name of efficiency, their plan is to use a heavy-handed tactic that would poison party relations even more,” McConnell said in a lengthy floor speech Monday. “In the name of efficiency, they would prevent the very possibility of compromise and threaten to make the disputes of the past few years look like mere pillow fights.”

Sen. McConnell was exaggerating since no one, not even Majority Leader Harry Reid, who said he “favors” filibuster, has suggested eliminating it entirely. But who would expect anything less than hyperbole from a man whose party has set a record for filibusters with over 360 since the Democrats came into the majority. But not to be outdone by their fearless leader other Republican senators voiced their objections in strongly worded terms:

Republicans are threatening even greater retaliation if Reid uses a move rarely used by Senate majorities: changing the chamber’s precedent by 51 votes, rather than the usual 67 votes it takes to overhaul the rules.

“I think the backlash will be severe,” Sen. Tom Coburn (R-Okla.), the conservative firebrand, said sternly. “If you take away minority rights, which is what you’re doing because you’re an ineffective leader, you’ll destroy the place. And if you destroy the place, we’ll do what we have to do to fight back.”

“It will shut down the Senate,” the incoming Senate GOP whip, Texas Sen. John Cornyn, told POLITICO. “It’s such an abuse of power.”

I’m not exactly sure how they would accomplish a “shut down” if the tool they’ve been using to shut down the senate is taken away from them or changed so that they can no longer obstruct the business that the majority was elected to do. After all for six years the Republicans, with Dick Cheney George W. Bush in the Oval Office, used the threat of the “nuclear option” to end any Democratic attempt at filibuster. Now the shoe is on the other foot and suddenly ending filibuster will destroy democracy.

We’ve been down this road before:

With the obstruction of a very united minority, there has been a great deal of debate about the filibuster and the reform of Senate Rule 22. In a New York Times op-ed, Former Vice President Walter F. Mondale, recalls how in 1975 when he was a Senator, the Senate voted to reduce the number of votes required to end filibuster from 67 votes, a super majority, to the current 60 votes. Clearly, he states this was not enough. Filibuster threats and cloture votes blocked legislation nearly 100 times in the 111th Congress.

Mr. Mondale argues that essentially, these rules abrogate the Constitution which only requires a 67 vote majority for the approval of treaties, “in all other instances it must be assumed that the Constitution requires only a majority vote”. In other words, many of the Senate rules are unconstitutional and could be done away with on a simple majority procedural vote under Parliamentary rules. That was the “[nuclear option ” that was used as a threat by the Republicans to force the Democrats to capitulate when they were in the minority.

One more time from me:

I have said this a number of times, the filibuster as it is currently being used to obstruct the Senate is unconstitutional. The Constitution is the supreme law of the land and cannot be abrogated by the Senate merely making a rule. The Vice President presides over the Senate and has a duty to make rulings on order and procedure when the Senate is in session. The Constitution provides for “one-person-one-vote” and “majority rules”, there is no mention of “filibuster”.

It is amazingly simple:

  1. During debate, a Republican Senator engages in a standard obstruction tactic, such as a hold, actual filibuster, or proposing numerous, non-germane Amendments.

  2. The Vice President, as Presiding Officer, rules that Senator’s hold, filibuster or spurious amendments out of order.

  3. The Senator who holds the floor, and had attempted the hold (filibuster, or amendments), could then appeal the decision of the Presiding Officer to the Senate as a whole.

  4. A simple majority (51) can then vote to uphold the ruling of the Presiding Officer that the hold (filibuster or amendments) were out of order.

 

This mechanism is not without precedent:

In 1975 the filibuster issue was revived by post-Watergate Democrats frustrated in their efforts to enact popular reform legislation like campaign finance laws. Senator James Allen of Alabama, the most conservative Democrat in the Senate and a skillful parliamentary player, blocked them with a series of filibusters. Liberals were fed up with his delaying tactics. Senator Walter Mondale pushed a campaign to reduce the threshold from sixty-seven votes to a simple majority of fifty-one. In a parliamentary sleight of hand, the liberals broke Allen’s filibuster by a majority vote, thus evading the sixty-seven-vote rule. (Senate rules say you can’t change the rules without a cloture vote, but the Constitution says the Senate sets its own rules. As a practical matter, that means the majority can prevail whenever it decides to force the issue.) In 1975 the presiding officer during the debate, Vice President Rockefeller, first ruled with the liberals on a motion to declare Senator Allen out of order. When Allen appealed the “ruling of the chair” to the full Senate, the majority voted him down. Nervous Senate leaders, aware they were losing the precedent, offered a compromise. Henceforth, the cloture rule would require only sixty votes to stop a filibuster.

And what Jon said:

There is no legitimate reason for allowing the minority, the party which lost the recent election, to have a veto in the Senate. The founders never intended a Senate minority to have such awesome power over basic legislation. The Constitutions clear stated the few  very important issues that should require a super majority in the chamber, everything else was intended to be a simple majority vote.

The idea that without a filibuster a majority in the Senate is going to steamroll are system is laughable. A senate majority is already checked and balanced by the House, the President and the judiciary. If a party does manage to dominates multiple elections allowing them to full control, they should be able to enact the agenda they run on. That is how democracy are suppose to work.

The US Senate has always been the slow deliberative body, it was not the intent of the Founders that it become bogged down to a halt by the minority misusing a rule that is probably not even constitutional in the first place. Sen. Reid was far too trusting of the duplicitous Republican leadership at the start of the 112th congress when he accepted their “gentlemen’s agreement”, shutting down the reform proposed by Sens. Tom Udall (D-NM) and Jeff Merkley (D-OR). The Republicans are not to be trusted.

I’m with Jon. It’s time the Senate ended the obstruction and put an end to Rule 22 altogether. Neither the Senate or the world will end and our elected officials will get back to governing.

In a recent interview with CNN’s Jessica Yellin, President Barack Obama candidly discussed his Drone War policies.

Noah Shachtman at the Wired‘s Danger Room labels the President’s comments “total baloney”

As the Bureau of Investigative Journalism notes, Obama told CNN that a terror suspect had to pass five tests before the administration would allow him to be taken out by a drone. “Drones are one tool that we use, and our criteria for using them is very tight and very strict,” the president said.

   1 “It has to be a target that is authorised by our laws.”

   2 “It has to be a threat that is serious and not speculative.”

   3 “It has to be a situation in which we can’t capture the individual before they move forward on some sort of operational plot against the United States.”

   4 “We’ve got to make sure that in whatever operations we conduct, we are very careful about avoiding civilian casualties.”

   5 “That while there is a legal justification for us to try and stop [American citizens] from carrying out plots … they are subject to the protections of the Constitution and due process.”

At least two of those five points appear to be half-truths at best. In both Yemen and Pakistan, the CIA is allowed to launch a strike based on the target’s “signature” – that is, whether he appears to look and act like a terrorist. [..]

“What I found most striking was his claim that legitimate targets are a ‘threat that is serious and not speculative,’ and engaged in ‘some operational plot against the United States,’ That is simply not true,” emails the Council on Foreign Relations’ Micah Zenko, who has tracked the drone war as closely as any outside analyst. “The claim that the 3,000+ people killed in roughly 375 nonbattlefield targeted killings were all engaged in actual operational plots against the U.S. defies any understanding of the scope of what America has been doing for the past ten years.”

A third point – that an American citizen is given the “protections of the Constitution” before he’s approved for unmanned killing – is dubious. [..] This is an internal review by presidential aides, not subject to any kind of independent authority, and obviously not one in which a target’s representatives can contest the case. It’s enough to condemn someone to death. The Obama administration has argued that this is the same as the “due process of law” guaranteed in the Bill of Rights.

Legal scholars have found the argument flimsy – with no coherent standard of evidence that amounts to an instant death sentence, and no limits to where that sentence can be carried out. [..]

When Yellin pressed further, asking Obama if he himself made the ultimate decisions about who should live and who should die, Obama demurred, saying, “I’ve got to be careful here. There are classified issues… I can’t get too deeply into how these things work.”

But, as Zenko notes, “that is total BS. The President has the authority to declassify anything. [..]

Over at emptywheel, Marcy Wheeler makes this critique:

But I’d like to push further on his comments about Obama’s claims to give Anwar al-Awlaki and Samir Khan (to say nothing of Abdulrahman al-Awlaki) due process by pointing to the way he ends this bit:

   Our most powerful tool over the long term to reduce the terrorist threat is to live up to our values and to be able to shape public opinion not just here but around the world that senseless violence is not a way to resolve political differences. And so it’s very important for the President and for the entire culture of our national security team to continually ask tough questions about, are we doing the right thing? Are we abiding by rule of law? Are we abiding by due process? And then set up structures and institutional checks so that you avoid any kind of slippery slope into a place where we’re not being true to who we are.

Having started by saying that drones are just a tool, he ends up by saying that we will vanquish terrorism by upholding our values-rule of law and due process.

And then the Constitution Professor President describes “set[ting] up structures and institutional checks” to make sure that we deliver rule of law and due process.

This, from the guy whose Administration refused to litigate a suit from Anwar al-Awlaki’s father to make sure it was upholding the standards Obama claimed in this interview in Awlaki’s case.

This, from the guy whose Administration has claimed state secrets to make sure no court can review the claims of people who have been rendered or tortured or illegally wiretapped.

This, from the guy who wouldn’t do the politically difficult things to have Khalid Sheikh Mohammed tried-and surely, convicted-before a civilian court in NYC.

Pres. Obama defies all logic by refusing to use the rule of law and, the best tool the US has to keep this country safe from terrorist attacks, the courts.

On Up with Chris Hayes, Chris and his guests exam the drone war and President Barack Obama’s ‘kill list’ that was revealed in a much read and discussed article in the New York Times. In the following three segments Chris along with Colonel Jack Jacobs, MSNBC military analyst; Hina Shamsi from the ACLU’s National Security Project; Jeremy Scahill of The Nation magazine; and Josh Treviño of the Texas Public Policy Foundation, discuss new revelations about the Obama administration’s drone program, including a reported “kill list” overseen directly by President Obama. They also examine the possibility that the Obama administration has been classifying civilian casualties as combatant deaths, as well as, the Obama administration’s contention that its targeted killing program is constitutional, and asks whether Congress is failing to hold the president accountable.

   [I]t is necessary to the happiness of man, that he be mentally faithful to himself. Infidelity does not consist in believing, or in disbelieving; it consists in professing to believe what he does not believe.

   It is impossible to calculate the moral mischief, if I may so express it, that mental lying has produced in society. When a man has so far corrupted and prostituted the chastity of his mind, as to subscribe his professional belief to things he does not believe, he has prepared himself for the commission of every other crime.

~Thomas Paine~, The Age of Reason

During the Bush administration the Democrats were opposed to the unitary executive powers that Bush assumed. When they realized how intrusive the government had becomes post 9/11 with surveillance, warrantless eavesdropping on American citizens, torture, indefinite detention, military commissions, Guantanamo and the general disregard for the rule of law, the Democrats railed against those policies. What happened that all these polices and now, targeted assassinations without due process have become acceptable? It is incomprehensible that under a Democratic president the right wing shredding of the Constitution is reasonable and defended by those who most vociferously opposed it.

In a New York Times Editorial, Andrew Rosenthal wrote this about President Obama’s “Kill Lists” and the use of unmanned drones:

Apologists for the president’s “just trust me” approach to targeted killings emphasize that the program is highly successful and claim that the drone strikes are extraordinarily precise. John Brennan, the president’s counter-terrorism adviser, said in a recent speech that not a single non-combatant had been killed in a year of drone strikes in Afghanistan and Pakistan. And today’s Times article quoted a senior administration official who said that civilian deaths were in the “single digits.”

But it turns out that even this hey-it’s-better-than-carpet-bombing justification is rather flimsy. The Times article says “Mr. Obama embraced a disputed method for counting civilian casualties …It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.”

The logic, such as it is, is that people who hang around places where Qaeda operatives hang around must be up to no good. That’s the sort of approach that led to the false imprisonment of thousands of Iraqis, including the ones tortured at Abu Ghraib. Mr. Obama used to denounce that kind of thinking.

So now just living in a village where the US thinks, there are insurgents, be they really Al Qaeda or just people defending their country from invaders, all men in the vicinity are enemy combatants, the President can have you killed and they can prove their innocence post mortem. As Cenk Uygur stated, “This is deeply immoral”

“Memorial Day weekend brought news of more U.S. drone attacks in Pakistan and Afghanistan as The New York Times raises new questions about President Obama’s so-called “Kill List” of terrorists targeted for assassination. An extensive report in Tuesday’s paper looks at the use of targeted attacks to take out terrorism suspects in other parts of the world, an increasingly important part of the government’s anti-terrorism policies that Barack Obama himself has taken personal responsibility for. According to the story, the President approves every name on the list of terrorism targets, reviewing their biographies and the evidence against them, and then authorizing “lethal action without hand-wringing.”

As the president has slowly drawn down American forces in Afghanistan and Iraq, the use of drone attacks to take out senior leaders of al-Qaeda

and the Taliban has become the primary tactic for fighting terrorism overseas. However, it raises a lot of legal and ethical questions about extra-judicial killings of individuals, particularly those who happen to be American citizens…”.

Will Bunch expressed his outrage in his Philadelphia Daily News column

{T]oday the harm that’s caused by raining death from machines in the sky down onto far too many civilians — including someone’s son, brother, or father who wasn’t “up to no good” at all — vastly outweighs any good. Righteous anger over the killing of civilians creates new terrorists faster than the killing of any old ones. As for the morally indefensible position that any male killed in such an attack is “probably up to no good,” isn’t the Obama administration saying the EXACT same thing that George Zimmerman said about Trayvon Martin? [..]

Actually, the similarity with Zimmerman is even greater than I first thought. What he said to the Sanford police dispatcher was that Trayvon Martin “looks like he’s up to no good.” Thank God Zimmerman didn’t have drones, huh?

Some of us on the left, many of whom supported President Obama in 2008, have some very serious issues with this President and those of his supporters who are choosing now to ignore all the horrendous violations of US and International law and the continued trampling of our rights and freedoms, but are now wholeheartedly accepting and defending these policies (Warning: link leads to a right wing Obama 527). They would love it if Obama’s critics would just sit down and shut up.

What has happened to Democrats who were willing to call for not just the impeachment but the arrest and prosecution of both George W. Bush and Dick Cheney? Now Barack Obama has taken those same policies a step further and made them acceptable to his loyal supporters but not to those of us who still hold to the same principles we did eleven years ago.

 The National Defense Authorization Act passed the House  a vote of 299 – 110. It passed without the bipartisan amendment that was proposed by Reps. Adam Smith (D-Wash.) and Justin Amash (R-Mich.)  which would have prohibited indefinite detention without due process . It failed by a vote of 243 – 173.  House Republicans piled on the fear factor with accusations that the amendment and its supporters were “soft on terrorist”. Adam Serwer recounts in his article in Mother Jones how Smith and Amash were accused of having “[collaborated on a nefarious plot to undermine national security”:

“Rep. Tom Rooney (R-Fla.) accused the lawmakers of wanting to “coddle terrorists,” while Rep. Mac Thornberry (R-Tex.) warned that under an amendment they’d introduced, “as soon as a member of Al Qaeda sets foot on US soil, they hear you have the right to remain silent.” National Review’s Andrew C. McCarthy, a former federal prosecutor who has never heard of a same-sex marriage supporting, pro-financial regulation liberal who wasn’t secretly a member of the Muslim Brotherhood, wrote that their proposal was the result of “libertarian extremists” teaming up with liberals with an “obsession” with giving “more rights” to “mass murderers.” ”

We now know that there are 231 paranoid delusion Republicans in the House that no longer believe in the rule of law or the Constitution of the United States:

“As Smith pointed out during yesterday’s floor debate, the Fifth Amendment says no “person” shall be deprived of liberty without due process of law. It doesn’t say “citizen,” and the text of the Constitution uses both words enough that it’s clear the framers understood the difference. “Your beef is with James Madison,” Smith told Thornberry on Thursday. So keep in mind, when Republicans like Rooney say that Smith and Amash want to “coddle terrorists,” they’re not necessarily talking about some heavily armed Al Qaeda fighter in Kandahar. They’re potentially talking about you.”

Besides passing without the Smith/Amash amendment, the $642 billion bill breaks a deficit-cutting deal with President Barack Obama and restricts his authority in an election-year challenge to the Democratic commander in chief. The bill also calls for construction of a missile defense site on the East Coast that the military opposes, and bars reductions in the nation’s nuclear arsenal. Against the request of the Chamber of Commerce and business community, strong GOP allies, the Republicans passed an amendment limiting funds for institutions or organizations established by the U.N. Convention on the Law of the Sea:

“The chamber supports Senate ratification of the Law of the Sea Treaty “because it would provide clear legal rights and protections to American businesses to transit, lay undersea cables, and take advantage of the vast natural resources in and under the oceans off the U.S. coasts and around the world,” executive vice president R. Bruce Josten said in a statement. He noted that the Defense Department supports the treaty.

Tea party Republicans and other conservatives have expressed concerns about the treaty impinging on U.S. sovereignty.”

President Obama has threatened to veto this bill, not for the lack of the restriction on indefinite detention but mainly because of restrictions on the implementation of the New START treaty; limits on reductions for the U.S.’s nuclear arsenal; and new restrictions on the transfer of Guantanamo detainees. Moreover, the White House objected to the overall size of the bill, which surpasses President Obama’s request by $3.7 billion and exceeds the Budget Control Act spending caps by $8 billion. I’ll believe that when it happens.

In New York City, U.S. District Judge Katherine Forrest ruled that the indefinite detention provision of the National Defense Authorization Act (NDAA) is unconstitutional in violation of the First and Fifth Amendments. The NDAA was signed into law by President Obama in late December after a veto threat over language that was eventually changed at his request.

In a 68-page ruling blocking this statute, U.S. District Judge Katherine Forrest agreed that the statute failed to “pass constitutional muster” because its broad language could be used to quash political dissent.

    “There is a strong public interest in protecting rights guaranteed by the First Amendment,” Forrest wrote. “There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention.”

This puts a whole new spin on today’s debate in the House floor Thursday of an amendment to the NDAA proposed by Representatives Adam Smith (D-Wash.) and Justin Amash (R-Mich.), that would undo the detention provisions and bar military detention for any terror suspects captured on U.S. soil. The ruling was made in response to a law suit brought by former New York Times war correspondent and Pulitzer Prize winner, Chris Hedges and others who argued that the law would have a “chilling effect” on their work:

Hedges was joined in the suit by linguist, author and dissident Noam Chomsky, Pentagon whistle-blower Daniel Ellsberg and other high-profile activists, scholars and politicians.

Hedges argued in his testimony that his work as a journalist would bring him into contact with terrorist organizations that would, given the scope of the law, qualify him for indefinite detention. The plaintiffs argued that the threat of detention alone would be an unconstitutional encroachment on their First Amendment rights to free expression and association, as well as a violation of the Fifth Amendment right to due process.

As Glen Greenwald points out in his Salon article, the court rejected the argument by the government that the NDAA did nothing more than the 2001 AUMF already did and thus did not really expand the Government’s power of indefinite detention:

The court cited three reasons why the NDAA clearly expands the Government’s detention power over the 2001 AUMF (all of which I previously cited when denouncing this bill).

First, “by its terms, the AUMF is tied directly and only to those involved in the events of 9/11,” whereas the NDAA “has a non-specific definition of ‘covered person’ that reaches beyond those involved in the 9/11 attacks by its very terms.”

Second, “the individuals or groups at issue in the AUMF are also more specific than those at issue in § 1021″ of the NDAA; that’s because the AUMF covered those “directly involved in the 9/11 attacks while those in § 1021 [of the NDAA] are specific groups and ‘associated forces’.” Moreover, “the Government has not provided a concrete, cognizable set of organizations or individuals that constitute ‘associated forces,’ lending further indefiniteness to § 1021.”

Third, the AUMF is much more specific about how one is guilty of “supporting” the covered Terrorist groups, while the NDAA is incredibly broad and un-specific in that regard, thus leading the court to believe that even legitimate activities could subject a person to indefinite detention.

The court also decisively rejected the argument that President Obama’s signing statement – expressing limits on how he intends to exercise the NDAA’s detention powers – solves any of these problems. That’s because, said the court, the signing statement “does not state that § 1021 of the NDAA will not be applied to otherwise-protected First Amendment speech nor does it give concrete definitions to the vague terms used in the statute.”

(emphasis mine)

A word of caution, we shouldn’t celebrate victory just yet. This is a preliminary injunction issued by one judge and the government will surely appeal it the Circuit Court.

The debate in the House on the amendment to the NDAA introduced by House Armed Services ranking member Adam Smith (D-Wash.) and Rep. Justin Amash (R-Mich.) that would undo the detention provisions and bar military detention for any terror suspects captured on U.S. soil, will go on this afternoon. The amendment has strong bipartisan support in the House. We still need to take action and write our Representatives to vote for this amendment.

President Barack Obama has resumed drone attacks into Pakistan and sends one of is lackeys to defend it as legal, blithely dismissing civilian casualties:

Fresh off of an interview yesterday in which he shrugged off civilian killings in the US drone war, top White House adviser John O. Brennan was ordered to provide more “openness” on the program at a speech today in Washington.

Fresh off of an interview yesterday in which he shrugged off civilian killings in the US drone war, top White House adviser John O. Brennan was ordered to provide more “openness” on the program at a speech today in Washington.

NEW YORK – April 30 – President Obama’s top counter-terrorism adviser today publicly confirmed that the United States conducts targeted killings of suspected terrorists using drones.

In a speech this afternoon at the Woodrow Wilson Center in Washington, John Brennan insisted the targeted strikes are a “wise choice” and “legal” and within the boundaries of international law. However, ACLU Deputy Legal Director Jameel Jaffer said Brennan’s statement did not go far in explaining how the program passed constitutional muster.

“This is an important statement – first because it includes an unambiguous acknowledgement of the targeted killing program and second because it includes the administration’s clearest explanation thus far of the program’s purported legal basis.” Jaffer said.

“But Mr. Brennan supplies legal conclusions, not legal analysis. We continue to believe that the administration should release the Justice Department memos underlying the program – particularly the memo that authorizes the extrajudicial killing of American terrorism suspects. And the administration should release the evidence it relied on to conclude that an American citizen, Anwar al-Aulaqi, could be killed without charge, trial, or judicial process of any kind.”

Brennan maintained the Obama administration was committed to transparency when it came to deciding who would be subject to lethal drone strikes. But Hina Shamsi, director of the ACLU National Security Project, said the program is both unconstitutional and overly broad.

“We continue to believe, based on the information available, that the program itself is not just unlawful but dangerous. This statement makes clear that the administration is treating legal restrictions on the use of force as questions of preference. Moreover, it is dangerous to characterize the entire planet as a battlefield,” Shamsi said.

“It is dangerous to give the President the authority to order the extrajudicial killing of any person – including any American – he believes to be a terrorist. The administration insists that the program is closely supervised, but to propose that a secret deliberation that takes place entirely within the executive branch constitutes ‘due process’ is to strip the Fifth Amendment of its essential meaning.”

Representatives of Human Rights Watch and Amnesty International USA said they welcomed the unprecedented public acknowledgement of the drone campaign by John Brennan, assistant to the president for homeland security and counterterrorism.

But they said there are still serious questions about whether drone attacks on suspected millitants are legal under international law.

“Where there’s a war, for example in Afghanistan, [drone strikes] are a legitimate weapon of war,” said Tom Parker, a former British government security official who is now head of Amnesty International’s counter-terrorism program. “The problem comes when you make the unprecedented claim that you are in a world-wide conflict with a non-state actor.”

“We don’t believe that the justification [offered by Mr. Brennan] stands up under international humanitarian law,” he added.

Here is a report from Kevin Gosztola at FDL on Obama’s Death Panels and the videos of the speech given by Jeremy Scahill of The Nation:

Activists, lawyers, human rights advocates, civil liberties defenders and others came together for a major international summit on drone warfare and the issues created by drone use yesterday. The summit was co-organized by CODEPINK, the Center for Constitutional Rights and Reprieve. An exceptional lineup of speakers addressed participants detailing salient and significant aspects around the Obama administration’s expansion of the covert drone wars in countries like Pakistan, Somalia and Yemen. [..]

Scahill opens his speech by saying, “The real death panels that we have in this country were unleashed on our own citizens. Republicans like to talk about death panels having to do with health care. President Obama is the one that is operating secret death panels” that include United States citizens and often include non-US citizens. The vast majority of the victims of this policy around the world are not US citizens.

The “secret drone” program is the biggest absurdity in town. Every one knows the CIA is using drones and has requested an expansion of their use, the Bush and Obama administrations have admitted to using drones, Obama has even joked about it. We know that Obama has assassinated American citizens with it, without due process, but it’s a secret Really? How stupid does the Obama administration think we are?

From Glenn Greenwald at Salon:

Ten days ago, I wrote about a request made by CIA Director David Petraeus to expand the drone war in Yemen in accordance with the following, as expressed by the first paragraph of The Washington Post article reporting it [..]

At the time, I wrote that “it’s unclear whether Obama will approve Petraeus’ request for the use of ‘signature strikes’ in Yemen,” though that was true only in the most technical sense. It was virtually impossible to imagine that a request from David Petraeus, of all people, to Barack Obama, of all people, for authority to target even more people in Yemen for death, now without even knowing who they are, would be anything but quickly and eagerly approved. And that is exactly what has now happened, as the Post’s Greg Miller reports today:

   The United States has begun launching drone strikes against suspected al-Qaeda operatives in Yemen under new authority approved by President Obama that allows the CIA and the military to fire even when the identity of those who could be killed is not known, U.S. officials said. . . .

   The decision to give the CIA and the U.S. Joint Special Operations Command (JSOC) greater leeway is almost certain to escalate a drone campaign that has accelerated significantly this year, with at least nine strikes in under four months. The number is about equal to the sum of airstrikes all last year. . . .

   Congressional officials have expressed concern that using signature strikes would raise the likelihood of killing militants who are not involved in plots against the United States, angering Yemeni tribes and potentially creating a new crop of al-Qaeda recruits. . .

   Gregory Johnsen, a Yemen expert at Princeton University, has questioned . . . the wisdom of the expanded drone operations. . . . “I would argue that U.S. missile strike[s] are actually one of the major – not the only, but a major – factor in AQAP’s growing strength.”

The Up with Chris panelists discuss counter-terrorism  as the examine the increase of the US military’s use in a tactic that kills targets, civilians included, by remote

Clive Stafford Smith, the director of Reprieve, a group representing the victims of drone strikes, joins from the Drone Summit in Washington, DC, an event set to investigate the expanding US drone program. The Up panelists key in on what this “expansion” means as the military continues to utilize drone strikes.

Michael Hastings, featured writer for Rolling Stone and a guest panelist on Up with Chris, wrote this chilling analysis of the history and current use of drones and “how killing by remote control has changed the way we fight“:

The use of drones is rapidly transforming the way we go to war. On the battlefield, a squad leader can receive real-time data from a drone that enables him to view the landscape for miles in every direction, dramatically expanding the capabilities of what would normally have been a small and isolated unit. “It’s democratized information on the battlefield,” says Daniel Goure, a national security expert who served in the Defense Department during both Bush administrations. “It’s like a reconnaissance version of Twitter.” Drones have also radically altered the CIA, turning a civilian intelligence-gathering agency into a full-fledged paramilitary operation – one that routinely racks up nearly as many scalps as any branch of the military.

But the implications of drones go far beyond a single combat unit or civilian agency. On a broader scale, the remote-control nature of unmanned missions enables politicians to wage war while claiming we’re not at war – as the United States is currently doing in Pakistan. What’s more, the Pentagon and the CIA can now launch military strikes or order assassinations without putting a single boot on the ground – and without worrying about a public backlash over U.S. soldiers coming home in body bags. The immediacy and secrecy of drones make it easier than ever for leaders to unleash America’s military might – and harder than ever to evaluate the consequences of such clandestine attacks.

“Drones have really become the counterterrorism weapon of choice for the Obama administration,” says Rosa Brooks, a Georgetown law professor who helped establish a new Pentagon office devoted to legal and humanitarian policy. “What I don’t think has happened enough is taking a big step back and asking, ‘Are we creating more terrorists than we’re killing? Are we fostering militarism and extremism in the very places we’re trying to attack it?’ A great deal about the drone strikes is still shrouded in secrecy. It’s very difficult to evaluate from the outside how serious of a threat the targeted people pose.”

President Barack Obama: “Drones? Drone attacks? Mr. Holder, do you know anything about this?

United States Attorney General Eric Holder, “I’ve never heard of drones, Mr. President. Leon, what do you hear from the generals?

Former Director of the CIA and current Secretary of Defense Leon Panetta, “No, Eric, I have no information about drones. Perhaps, Director Petraeus would know about these drones”

The three men look around the room for CIA Director David Petraeus. He’s  nowhere to be found.

That fictional conversation never took place but the Obama administration would now like us all to believe that they cannot even confirm or deny the existence of a drone program at all without seriously damaging national security. Huh? They really don’t expect anyone to accept that statement that was made in response to an ACLU lawsuit under the Freedom of Information Act requesting the “the government to disclose the legal basis for its use of predator drones to conduct “targeted killings” overseas. In particular, the ACLU seeks to find out when, where and against whom drone strikes can be authorized, and how the United States ensures compliance with international laws relating to extrajudicial killings.”

Glenn Greenwald in an in depth article at Salon dissected this laughable “defense” of national security about predator drones, targeted assassinations and Obama’s taking “Bush’s secrecy games one step further“:

What makes this so appalling is not merely that the Obama administration demands the right to kill whomever it wants without having to account to anyone for its actions, choices or even claimed legal authorities, though that’s obviously bad enough [..]

What makes it so much worse is how blatantly, insultingly false is its claim that it cannot confirm or deny the CIA drone program without damaging national security.

Numerous Obama officials – including the President himself and the CIA Director – have repeatedly boasted in public about this very program. Obama recently hailed the CIA drone program by claiming that “we are very careful in terms of how it’s been applied,” and added that it is “a targeted, focused effort at people who are on a list of active terrorists, who are trying to go in and harm Americans, hit American facilities, American bases and so on.” Obama has told playful jokes about the same drone program. Former CIA Director and current Defense Secretary Leon Panetta also likes to tell cute little jokes about CIA Predator drones, and then proclaimed in December that the drone program has “been very effective at undermining al Qaeda and their ability to plan those kinds of attacks.” Just two weeks ago, Attorney General Eric Holder gave a speech purporting to legally justify these same drone attacks.

“Cute little jokes”? Is that like President George W. Bush’s “cute” little video looking for weapons of mass destruction in the Oval Office? I don’t think the people who have lost family and friends and had their lives destroyed by America’s misadventures in the Middle East think this is amusing.

And just where is the secret? Everyone in the world is talking about the predator drone program that has killed more innocent people than Al Qaeda operatives and put the US relationship with ally Pakistan on very thin ice. Just this weekend there was a long article in The Washington Post with an unnamed CIA official who was directing drone attacks in Pakistan:

Roger, which is the first name of his cover identity, may be the most consequential but least visible national security official in Washington – the principal architect of the CIA’s drone campaign and the leader of the hunt for Osama bin Laden. In many ways, he has also been the driving force of the Obama administration’s embrace of targeted killing as a centerpiece of its counterterrorism efforts.

Glenn further notes that this fixation of the Obama administration on secrecy, as evidenced by its increased prosecution of whistleblowers, is a means to protect itself from rule of our laws. He quotes from President G.W.Bush DOJ lawyer Jack Goldsmith, who defended executive authority and secrecy powers but recognized that Obama was taking this too:

First, it is wrong . . . for the government to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications.  It is wrong because it is illegal.  It is wrong because it damages (though perhaps not destroys) the diplomatic and related goals of covertness.  And it is wrong because the Executive branch seems to be trying to have its cake (not talking about the program openly in order to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking promiscuously to get credit for the operation and to portray it as lawful).

This can be filed under the “You’ve Got To Be Kidding” defense.

Drones? What drones? Hmm. Ask Iran, maybe they know something about this drone thing.