Tag: Constitution

Recently, I was driving along the Hutchinson River Parkway to pick up a friend who was in town and meet up with another friend for dinner in the area. It was a lovely warm evening and during the the drive we talked about the historic significance of the region. Dinner was fun and after dropping my friend at his hotel, I followed my usual route back to NYC that closely hugs the Hutchison River as it winds through the Bronx. As I was preparing my daily open thread, On This Day In History, I came across this Wikipedia entry for Anne Hutchinson for whom the river and parkway are named:

1638 – Anne Hutchinson is expelled from Massachusetts Bay Colony for religious dissent.

Anne Hutchinson (1591-1643) was one of the most prominent women in colonial America, noted for her strong religious convictions, and for her stand against the staunch religious orthodoxy of 17th century Massachusetts. She was a Puritan whose religious ideas were at odds with the established Puritan clergy in the Boston area, and her popularity and charisma created a schism in the Boston church which threatened to destroy the Puritans’ religious experiment in New England. Creating the most challenging situation for the ruling magistrates and ministers during her first three years in Boston, she was eventually tried and convicted, then banished from the Massachusetts Bay Colony with many of her followers. [..]

In 1634, after the birth of her 14th child, Hutchinson followed (John) Cotton to New England with her husband and 11 living children, and soon became well established in the growing settlement of Boston, in the English colonies. She was a midwife, and very helpful to those needing her assistance, as well as being very forthcoming with her personal religious opinions and understandings. Soon she was hosting women at her house once a week, providing commentary on recent sermons, and sharing her religious views, including criticism of many local ministers. These meetings became so popular, that she soon began offering meetings to men as well, to include the young governor of the colony, Harry Vane, and over 60 people a week were visiting her house to learn from her interpretations and views of religious matters. As a follower of Cotton, she espoused a “covenant of grace,” while accusing all of the local ministers (except for Cotton and her husband’s brother-in-law, John Wheelwright) of preaching a “covenant of works.” Several ministers complained about Hutchinson to John Winthrop, who served several terms as governor of the colony, and eventually the situation erupted into what is known as the Antinomian Controversy, resulting in Hutchinson’s 1637 trial, conviction, and banishment from the colony.

She was quite the activist for her day and stood trial for heresy, literally standing throughout the proceedings while, in what was believed, to be an advanced stage of pregnancy. She faced two trials, civil and church, and was expelled from Massachusetts by Gov. John Winthrop after being convicted by the church on March 22, 1638.

After her conviction, Anne. along with her husband, children and some of her followers, with the encouragement of Roger Williams, established the colony of Portsmouth “in what would become the Colony of Rhode Island and Providence Plantations:”

During Hutchinson’s imprisonment, several of her supporters prepared to leave the colony and settle elsewhere. A group of her followers, including her husband Will, met on 7 March 1638, at the home of the wealthy Boston merchant William Coddington. Ultimately 23 men signed what is known as the Portsmouth Compact, forming themselves into a “Bodie Politick” and electing Coddington as their governor, but giving him the Biblical title of “judge.” Of the signers, 19 of them initially planned to move to New Jersey or Long Island, but Roger Williams convinced them to settle in the area of his Providence Plantations settlement. Coddington purchased Aquidneck Island, in the Narragansett Bay, from the Narragansetts and the settlement of Pocasset (soon renamed Portsmouth) was founded. Anne Hutchinson followed in April, after the conclusion of her church trial.

Hutchinson, her children, and others accompanying her traveled for more than six days by foot in the April snow to get from Boston to Roger Williams’ settlement at Providence. They then took boats to get to Aquidneck Island, where many men had gone ahead of them to begin constructing houses. In the second week of April, she reunited with her husband, from whom she had been separated for nearly six months. [..]

She lived there for a few years, but after her husband’s death, threats of Massachusetts taking over Rhode Island compelled her to move totally outside the reach of Boston, into the lands of the Dutch. Sometime in 1642 she settled with her younger children in New Netherland near an ancient landmark called Split Rock in what would later become Bronx, New York City. Here she had a home built, but tensions with the native Siwanoy were high, and following inhumane treatment by the Dutch, the natives went on a series of rampages known as Kieft’s War, and in August 1643, all but one of the 16 members of Hutchinson’s household were massacred during an attack. The lone survivor, nine-year old Susanna Hutchinson, was taken captive, and held for several years before being returned to family members in Boston.

Hutchinson is a key figure in the study of the development of religious freedom in England’s American colonies and the history of women in ministry. She challenged the authority of the ministers, exposing the subordination of women in the culture of colonial Massachusetts. Although her religious ideas remain controversial, her implicit rejection of state authority to prescribe specific religious rites and interpretations, was later enshrined in the American Constitution. Massachusetts honors her with a State House monument calling her a “courageous exponent of civil liberty and religious toleration.”

The inscription on the base of the statue in front of the State House in Boston, Massachusetts that honors Anne and her daughter, Suzanna reads:

IN MEMORY OF

ANNE MARBURY HUTCHINSON

BAPTIZED AT ALFORD

LINCOLNSHIRE ENGLAND

20 JULY 1595 [sic]

KILLED BY THE INDIANS

AT EAST CHESTER NEW YORK 1643

COURAGEOUS EXPONENT

OF CIVIL LIBERTY

AND RELIGIOUS TOLERATION

Click on image to enlarge

Beside being one of the few women who have a river named for them, Anne Hutchinson is thought to be the basis for the character of Hester Prynne in Nathaniel Hawthorne‘s The Scarlet Letter. The parallel being “that Hutchinson is the heretic who metaphorically seduces the Puritan community, while in Hawthorne’s novel Hester Pyrnne literally seduces the minister of her community.”

Considering the recent debate over women’s access to health care and our First Amendment rights, remembering the early history of religion and the role that women played is a reminder that this conversation has been going on for a lont time.

US Attorney General Eric Holder asserted in a speech at Northwestern University’s law school that it is lawful for the government to kill American citizens if officials deem them to be operational leaders of Al Qaeda who are planning attacks on the United States and if capturing them alive is not feasible. He did this without legal citations or footnotes to the speech. Eric Holder needs to reread the Constitution, in particular the 5th, 6th, and 14th amendments, with an emphasis on the 6th

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

There are seven rights in just that one amendment that go to the heart of the principles of the judicial process:

   1. The right to a speedy trial

   2. The right to a public trial

   3. The right to be judged by an impartial jury

   4. The right to be notified of the nature and circumstances of the alleged crime

   5. The right to confront witnesses who will testify against the accused

   6. The right to find witnesses who will speak in favor of the accused

   7. The right to have a lawyer

“Due process balances the power of law of the land and protects individual persons from it. When a government harms a person without following the exact course of the law, this constitutes a due-process violation, which offends against the rule of law.”

And according to the 5th Amendment‘s brief but very clear language, no person “be deprived of life, liberty, or property, without due process of law.”

Law professor Jonathan Turley wrote at his blog that Holder has promised to kill citizens with care. That, in effect, is the pledge the Obama administration’s attorney general says has replaced our constitutional protections:

[..]The good news is that Holder promised not to hunt citizens for sport. Holder proclaimed that:

   “The president may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a US citizen.”

The use of the word “abroad” is interesting since senior administration officials have asserted that the president may kill an American anywhere and anytime, including in the United States. Holder’s speech does not materially limit that claimed authority. He merely assures citizens that Obama will only kill those of us he finds abroad and a significant threat. Notably, Holder added, “Our legal authority is not limited to the battlefields in Afghanistan.” [..]

Holder became particularly cryptic in his assurance of caution in the use of this power, insisting that they will kill citizens only with “the consent of the nation involved or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.” What on earth does that mean? [..]

He was more clear in establishing that due process itself is now defined differently than it has been defined by courts since the start of this Republic. He declared that “a careful and thorough executive branch review of the facts in a case amounts to ‘due process.'” Of course, from any objective standpoint, that statement is absurd and Orwellian. It is basically saying that “we will give the process that we consider due to a target.” His main point was that “due process” will now no longer mean “judicial process.” [..]

This Administration has consistently maintained that courts do not have a say in such matters. Instead, they simply define the matter as covered by the Law Of Armed Conflicts (LOAC), even when the conflict is a war on terror. That war, they have stressed, is to be fought all around the world, including the United States. It is a battlefield without borders as strikes in other countries have vividly demonstrated.

Brian Sonenstein at FDL calls for action:

Since the whole world is a battlefield in the vague ‘war on terror,’ the only due process afforded to someone who has been targeted for extrajudicial execution is a secret ‘review’ by the panel of senior officials in the executive branch.

Just as the public demanded the release of the Bush Administration’s Torture Memos to expose the ludicrous rationale behind their secret torture program, we too must demand to know the legal rationale for a program that allows our president to unilaterally choose to deprive someone of life and liberty – without any oversight or recourse available to the victim.

Holder’s speech was a cheap attempt to feign transparency without actually releasing the legal memos that define the administration’s execution program. We need your help to demand the Obama administration release these memos immediately so there can be an open public debate about Executive power and the execution of American citizens without any due process or outside accountability.

Please sign our petition demanding the Obama administration produce the internal memos and legal justification for their targeted execution program.

Yes, that is essentially what US Attorney General Eric Holder said in a speech at Northwestern University.

   Attorney General Eric H. Holder Jr. asserted on Monday that it is lawful for the government to kill American citizens if officials deem them to be operational leaders of Al Qaeda who are planning attacks on the United States and if capturing them alive is not feasible.

   “Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack,” Mr. Holder said in a speech at Northwestern University’s law school. “In that case, our government has the clear authority to defend the United States with lethal force.” […]

   “Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces,” Mr. Holder said. “This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”

In taking apart Holder’s justification for murder, David Swanson so chillingly describes the government can kill you anywhere, anyplace, anytime they choose without evidence, charges, arrest or approval:

Attorney General Eric Holder on Monday explained why it’s legal to murder people – not to execute prisoners convicted of capital crimes, not to shoot someone in self-defense, not to fight on a battlefield in a war that is somehow legalized, but to target and kill an individual sitting on his sofa, with no charges, no arrest, no trial, no approval from a court, no approval from a legislature, no approval from we the people, and in fact no sharing of information with any institutions that are not the president.[..]

Nor can promising to imprison people without a fair trial justify murdering people.  But Holder does not do that.  He promises kangaroo courts:

   “Much has been made of the distinction between our federal civilian courts and revised military commissions.  The reality is that both incorporate fundamental due process and other protections that are essential to the effective administration of justice – and we should not deprive ourselves of any tool in our fight against al Qaeda.” [..]

Holder then explains, sensibly enough, why non-military courts work just fine (unless an extreme record of nearly 100% convictions worries you):

   “Simply put, since 9/11, hundreds of individuals have been convicted of terrorism or terrorism-related offenses in Article III courts and are now serving long sentences in federal prison.  Not one has ever escaped custody.  No judicial district has suffered any kind of retaliatory attack.” [..]

Holder turns next to the presidential power to imprison people that was signed into law on New Year’s Eve as part of the National “Defense” Authorization Act:

   “This Administration has worked in other areas as well to ensure that counterterrorism professionals have the flexibility that they need to fulfill their critical responsibilities without diverging from our laws and our values.  Last week brought the most recent step, when the President issued procedures under the National Defense Authorization Act.  This legislation, which Congress passed in December, mandated that a narrow category of al Qaeda terrorist suspects be placed in temporary military custody.”

This legislation did nothing of the sort.  For one thing, Obama unconstitutionally altered it in a signing statement as it applied to a huge prison full of largely non-al Qaeda prisoners in Afghanistan.  In addition, there has been quite a bit of discussion of the power this bill creates to imprison U.S. citizens. [..]

And, despite tremendous, often willful, confusion, the history is clear that Obama insisted on the power to imprison U.S. citizens and to do so outside of the military.

This is madness. The Constitution does not permit any of this. Holder quoted no legal standards. As the New York Times reported in its article on Holder’s speech, “the speech had contained no footnotes or specific legal citations”:

{..} and it fell far short of the level of detail contained in the Office of Legal Counsel memo – or in an account of its contents published in October by The New York Times based on descriptions by people who had read it.

The administration has declined to confirm that the memo exists, and late last year, The Times filed a lawsuit under the Freedom of Information Act asking a judge to order the Justice Department to make it public. In February, the American Civil Liberties Union filed a broader lawsuit, seeking both the memo and the evidence against Mr. Awlaki.

And where are the Democrats and so-called “progressives”? As Glenn Greenwald at Salon writes, “Yet, with some righteous exceptions, the silence is deafening, or worse“:

How can anyone who vocally decried Bush’s mere eavesdropping and detention powers without judicial review possibly justify Obama’s executions without judicial review? How can the former (far more mild powers) have been such an assault on Everything We Stand For while the latter is a tolerable and acceptable assertion of war powers? If Barack Obama has the right to order accused Terrorists executed by the CIA because We’re At War, then surely George Bush had the right to order accused Terrorists eavesdropped on and detained on the same ground. [..]

To recap Barack Obama’s view: it is a form of “terror” for someone to be detained “without even getting one chance to prove their innocence,” but it is good and noble for them to be executed under the same circumstances. To recap Eric Holder’s view: we must not accept when the Bush administration says “just trust us” when it comes to spying on the communications of accused Terrorists, but we must accept when the Obama administration says “just trust us” when it comes to targeting our fellow citizens for execution. As it turns out, it’s not 9/11/01 that Changed Everything. It’s 1/20/09. [..]

Find a defender of Obama’s assassination program and all you’ll hear is exactly the same thing: this is only being directed at The Terrorists like Awlaki, so we don’t need any court review or due process. Here was Holder yesterday: “it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks,” and assassination orders are only issued once “the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States.” [..]

He (Holder) said, for instance, that “the Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.” That part is true: in the 2004 case of Hamdi v. Rumsfeld, the Supreme Court rejected the Bush administration’s argument that it could detain American citizens accused of Terrorism without any process for them to contest the accusations against them, though the Court held that something less than a full-scale trial could satisfy the Due Process clause. But as Marcy Wheeler points out, the Court imposed “due process” requirements that are the exact opposite of what the Obama administration is doing with its assassinations.

The very idea that presidential assassination powers will become accepted policy for every future president, that the core of the Constitutional protection of due process can be based solely on the word of the president and made in total secrecy without the opportunity to view, or even refute, any evidence is abhorrent and evil.

These articles with their extensive citations by credible authors are must reads:

Attorney General Holder Says Murder Is Legal

by David Swanson, anti-war activist and author of Day Break and War Is A Lie, who runs the websites DavidSwanson.org and WarIsACrime.org (formerly AfterDowningStreet.org)

Attorney General Holder defends execution without charges

by Glenn Greenwald, best selling author, former Constitutional and civil rights litigator and contributing writer at Salon

Eric Holder’s View on National Security: Three Branches. Except for When the Third becomes Inconvenient.

by Marcy Wheeler, author and runs website emptywheel

When the US Government Can Kill You, Explained

by Adam Serwer, writer for Mother Jones

Time to Play “What if Alberto Gonzalez Said That?”

by John Cole, blogger and runs website Balloon Juice

How We Can Help President Obama Today

by Charles P. Pierce, contributing write at Esquire

Assassinating U.S. Citizens: Holder says “Yes We Can”

by Jesselyn Radack, director of National Security & Human Rights at the Government Accountability Project.  

Constitutional lawyer Bruce Fein and former presidential candidate and consumer advocate, Ralph Nader visited Harvard Law School to  discuss the constitutional crimes of Presidents George W. Bush and Barack H.Obama It is well worth the hour to watch if you love this country and respect the Constitution and our laws.

February 10, 2012

Ralph Nader ’58 and Bruce Fein ’72 visited Harvard Law School for a talk sponsored by the HLS Forum and the Harvard Law Record. At the event, “America’s Lawless Empire: The Constitutional Crimes of Bush and Obama,” both men discussed what they called lawless, violent practices by the White House and its agencies that have become institutionalized by both political parties. [..]

Both men took issue with the National Defense Authorization Act, which sets the budget and policies of the Department of Defense and generally expands the power of the government to fight the war on terror. The Act permits, among other practices, the indefinite detention of terrorism suspects without trial. Fein encouraged those in attendance to contact their members of congress about repealing it.

Bruce Fein has been my “hero” since he called for the simultaneous impeachment of both Bush and Cheney as a requirement of congress mandated by the Constitution and then drafted articles of impeachment of Barack Obama for the same reasons. The Constitution and its enforcement is not a spectator sport.

Over the weekend Occupy Oakland attempted to occupy an abandoned building into into a community center to provide education, medical, and housing services for the 99%. Police responded with tear gas, rubber bullets, beanbag rounds and mass arrests. From Occupy Oakland Media

January 29, 2011 – Oakland, CA – Yesterday, the Oakland Police deployed hundreds of officers in riot gear so as to prevent Occupy Oakland from putting a building, vacant for 6 years with no plans for use, from being occupied and “re-purposed” as a community center. The Occupy Oakland GA passed a proposal calling for the space to be turned into a social center, convergence center and headquarters of the Occupy Oakland movement.

The police actions tonight cost the city of Oakland hundreds of thousands of dollars, and they repeatedly violated their own crowd control guidelines and protesters civil rights.

With all the problems in our city, should preventing activists from putting a vacant building to better use be their highest priority? Was it worth the hundreds of thousands of dollars they spent?

The OPD is facing receivership based on actions by police in the past, and they have apparently learned nothing since October. On October 25, Occupiers rushed to the aid of Scott Olsen who was shot in the head by police, and the good Samaritans who rushed to his had had a grenade thrown at them by police. At 3:30pm this afternoon, OO medics yet again ran to the aid of injured protesters lying on the ground. Other occupiers ran forward and used shields to protect the medic and injured man. The police then repeatedly fired less lethal rounds at these people trying to protect and help an injured man.

No one condones throwing objects at police, violence or vandalism but it does not justify the overreaction by the Oakland police department use of military type weapons to stop unarmed protesters.

From Kevin Gosztola who describes the videos below in his reporting on the Occupy movement at FDL:

Recorded video footage from the scene shows officers did not give a dispersal order. They pushed protesters toward the YMCA and would not let them leave the scene as they ordered them to “submit” to the arrest. The protesters then did what anyone would do as a battalion of riot police closed in on them: they found the nearest escape route, which happened to be through an entrance to the building. [*See the 30-min mark of the video below.]

I will not condone the throwing of objects at police, but the video captured by Mills, who was also at the scene when percussion grenades, tear gas and other weapons were being fired by police, calls into question the [statements by the city  that protesters were “charging” police. Yes, they were advancing on the riot police, slowly. A handful, like any protest, were egging on the riot police. But, if you watch the video the moment the riot police move on the protesters they immediately fall back. They do not let the police charge into them, which raises doubts about whether it was ever necessary to fire off any chemical weapons at protesters to force the crowd to disperse.

Sunday night in solidarity with Oakland Occupiers took to the streets in cities across the country:

#SolidaritySunday with Oakland Marches in NYC and Across the US; Bank of Ideas Being Evicted in London

As of 8pm EST, actions are currently happening or planned in response to extreme police violence used against Occupy Oakland yesterday in New York City, Boston, Toronto, Vancouver, Melbourne, Oslo, Philadelphia, DC, Chicago, Los Angeles, Dallas, Portland, Tampa, Indianapolis, New Haven, Orlando, Jackson, Des Moines, Hollywood, Baltimore, Portland ME, Tulsa, Denver, St. Louis, Eugene, Nashville, and Detroit. We have also received word that the Bank of Ideas in London is being raided!

At noon today, Occupy DC faces a ban on camping in the parks but will remain in McPherson Square.

We stand with the Occupy Wall Street movement and the right to peaceful assembly.

Where have all our freedoms gone? Have they eroded before our eyes because we failed to use them by demanding that our elected representatives protect the Constitution? Did irrational fear of an unseen enemy with no country, armed with a fanatical hatred scare us into allowing those freedoms to be abrogated? Apparently our current government from the executive to the judicial seem to think that the Constitution is a nice idea but its time has passed. We’re at war with “terror” and “terror” will never surrender. Law Professor Jonathan Turley, in an op-ed written shortly after President Obama signed the National Defense Authorization Act into law, enumerated the ten reasons the US is no loner the land of the free:

1. Assassination of U.S. citizens

Last year, President Obama went further than George W. Bush would have dared with the ordered assassination of a US citizen, Anwar al-Awlaqi. Just as the Bush administration justified torture, Pres. Obama justified targeted assassination of an American citizen without due process in a secret memo from administration lawyers. The administration cavalierly calling it “due process in war.” Yet, the US is hypocritical enough to criticize other countries for doing the same.

2. Indefinite detention

Under the NDAA the president can indefinitely detain a citizen that is suspected of terrorism and allow the military to hold them. While President Obama issued a signing statement saying that he would never do that, signing statement have no force of law and are not binding, either for Obama or any future president. Presidents have been known to change their minds, Obama does so on a regular basis.  

3. Arbitrary justice

The president decides who will be tried in the Federal courts or by a military tribunal, a system, as Prof. Turley points out, “that has been ridiculed around the world for lacking basic due process protections.” Yet countries like China and Egypt have rejected tribunals as an alternative to civilian courts.

Those first three reasons totally disregard the Fifth, Sixth and Eighth Amendments

4. Warrantless searches

Under the Patriot Act of 2001, and reinforced by Pres. Obama in 2011, the government can force companies and businesses to turn over citizens records, everything from finances to library records without a warrant and bar the company from telling the targets.

Fourth Amendment? What Fourth Amendment?

5. Secret evidence

The government under the guise of national security says it doesn’t have to show evidence it deems secret for national security thus forcing the dismissal of lawsuits brought against it for illegal detention and torture. This is how the Obama Justice Department has protected the war criminals from the Bush administration not only from civil liability but criminal prosecution for crimes against humanity. As Prof Turley describes, “This allows the government to claim secret legal arguments to support secret proceedings using secret evidence.”

Star Chamber?

6. War Crimes

Since 2009, the President Obama has refused to allow the prosecution of anyone responsible for waterboarding and torture. This in complete disregard of treaty obligations and the Nuremberg principles of international law. The Obama administration went so far as to pressure countries such as Spain to drop criminal investigations of war crimes committed by the Bush administration. Yet the US continues to reserve the right to prosecute war criminals in other countries. ”

“Do as I say not as I do” is the attitude that has fed the hatred of terrorists, as well as, disdain from countries like China when we criticize their human rights violations.

7. Secret court

The Foreign Intelligence Surveillance Court is the United States’ “secret court”, the “star chamber“, that operates in total secrecy. Created in 1978, the eleven judges of the U.S. Foreign Intelligence Surveillance Court (FIS) consider and rule on applications by federal law enforcement and intelligence agencies to conduct electronic surveillance anywhere within the United States. When FISA came up for renewal under the Bush administration it expanded its secret warrants to include individuals deemed to be aiding or abetting hostile foreign governments or organizations. Then Sen. Barack Obama said that he would filibuster the renewal unless certain portions of the bill were fixed to ensure that it did not violate the Constitution. Needless to say, Sen Obama not only did not filibuster the FISA, he voted for it, promising to “fix it” if he was elected president. That was a lie. In 2011, not only did President Obama not fix it, he expanded it to in include secret searches of individuals who are not part of an identifiable terrorist group.

8.  Immunity from judicial review

The Obama administration has pushed for, and granted, immunity of telecommunications companies that assist in warantless surveillance. Citizens who have had their privacy violated by the government no longer have redress.

9. Continual monitoring of citizens

So far the Obama administration has successfully defended in the courts its view that it has the right to use GPS to monitor every move of targeted citizens without securing any court order or review. The case, Jones v. United States, could overturn Katz v. United States which is celebrated as saving privacy in the United States, articulated the principle that “the Fourth Amendment protects people, not places.” That 1967 decision reversed a long erosion of privacy protection and required greater use of warrants by the government.

10. Extraordinary renditions

While the Obama administration has insisted that it no longer transfers persons into the custody of other countries where they could be held and tortured, it is still claiming the right to to order such transfers, including the possible transfer of U.S. citizens.

Prof. Turley goes in to quote those who are justifying these abuses as saying it’s all due to the times we in which we live. But as he so importantly notes in conclusion:

An authoritarian nation is defined not just by the use of authoritarian powers, but by the ability to use them. If a president can take away your freedom or your life on his own authority, all rights become little more than a discretionary grant subject to executive will.

The framers lived under autocratic rule and understood this danger better than we do. James Madison famously warned that we needed a system that did not depend on the good intentions or motivations of our rulers: “If men were angels, no government would be necessary.”

Benjamin Franklin was more direct. In 1787, a Mrs. Powel confronted Franklin after the signing of the Constitution and asked, “Well, Doctor, what have we got – a republic or a monarchy?” His response was a bit chilling: “A republic, Madam, if you can keep it.”

Since 9/11, we have created the very government the framers feared: a government with sweeping and largely unchecked powers resting on the hope that they will be used wisely. [..]

Dishonesty from politicians is nothing new for Americans. The real question is whether we are lying to ourselves when we call this country the land of the free.

What was that “change” that was promised three years ago?

President Obama’s recent exercise of his constitutional authority to make recess appointments to the new Consumer Financial Protection Bureau and filling vacancies the National Labor Relations Board has created some dilemmas for himself and congressional Republicans. Republicans, of course, will continue to block confirmation of any Presidential appointee but are split as to how to address President Obama’s dismissal of the sham “pro forma” sessions and his four recess appointments.

With the appointment of Jack Lew as Chief of Staff, there is now a vacancy to head the Office of Budget and Management but the bigger issue may be the vacancy for a new director to the Federal Housing Finance Administration. That institution has been without a confirmed director for over two years, since David Lockhart left. The president is being pressured by the House Congressional Delegation from California to replace the Republican acting director of the FHFA, Ed DeMarco, who they say has been obstructing efforts to stem the housing market collapse and help keep owners in their homes. David Dayen at FDL News Desk reports that he is of two minds on DeMarco:

(DeMarco) has interpreted his mandate very narrowly. It’s a bad thing when he refuses to engage in principal reductions for troubled borrowers, even though that would make more money for Fannie and Freddie in the long run, because he doesn’t want to take the short-term financing hit. But it’s a good thing when he sues 17 banks over misrepresentations of the mortgages in the securities they sold to Fannie and Freddie, with the hope of forcing repurchases of those mortgage pools.

There have been signs that DeMarco is warming to a more activist stance. He agreed to the changes to HARP, which is more of a stimulus program than a program that will save homes, but which will allow expanded refinancing come March of this year on GSE-owned properties. Freddie Mac just initiated a program for a 12-month forbearance (where the borrower can skip payments) for unemployed borrowers, although Democrats maintain that not everyone eligible will receive that forbearance.

Most promisingly, DeMarco is considering a principal pay-down program put forward by a California Democrat, Zoe Lofgren, that would allow underwater homeowners with GSE loans to have their mortgage payments go entirely to equity for five years, waiving the interest payments. DeMarco said he would look into the idea back in October, and there have been leaks since then suggesting that principal pay-down would happen. However, there has been no final word, and officially FHFA “continues to evaluate” the Lofgren proposal, even though in a meeting with House Dems they promised an assessment within two weeks.

Meanwhile those poor Republican obstructionists have a headache, as Brian Buetler at TPMDC reports:

Scores of House Republicans have signed on to a non-binding resolution disapproving of Obama’s four winter recess appointments – Cordray, and three members of the National Labor Relations Board – all fodder for conservatives, who are furious about the existence of these agencies, let alone the recess appointments themselves.

“It’s astounding to me that the president is claiming these are recess appointments and within his authority, when Congress was not in fact in recess,” said Rep. Diane Black (R-TN) who authored the resolution. “These appointments are an affront to the Constitution. No matter how you look at this, it doesn’t pass the smell test. I hope the House considers my resolution as soon as we return to Washington so we can send a message to President Obama.”

This creates an election-year dilemma for GOP leaders who may not want to make a big show of their opposition to the one person in Washington tasked with protecting consumers from predatory financial actors.

But with so many key vacancies, President Obama has his own dilemma headache, not just to make more recess appointments but how to do it:

[T]he breaks between the last week in January and the first week in August will be very brief ones. Which means that if Obama declines to use his recess appointment power in the next several days, he’ll have three options, none ideal: He can fight it out with Congress and push for regular confirmations; he can wait until August, when Congress goes home for over a month; or he can broaden the parameters of his own precedent, and use the recess appointment during brief one-week vacations between now and then.

Republicans will likely keep holding pro forma sessions during those breaks, challenging Obama to take things further than he already has. [..]

As far as the Constitution and the Senate rules are concerned, there wouldn’t be much difference between a recess appointment in, say, April, and the recess appointments he announced last week. But their public rationale for the January appointments wouldn’t really stand in April. And after attacking President Obama’s supposed power grab, Republicans would slip the precedent in their back pocket, to be deployed when they control the White House.

We shall see if the president has finally abandoned all hope of getting any bipartisan cooperation from the Republicans.

Back in 1912, the voters of Montana passed a law that barred corporations from direct contributions to political candidates when mining czar W.A. Clark bought himself a seat in the U.S. Senate. That law was overturned in 2010 when the US Supreme Court declared that granted corporations the same 1st Amendment rights as citizens and allowed businesses to freely spend their way into the nation’s political debates. Being single minded Westerners, the Montana Supreme Court has challenged Citizens United by upholding the state’s century old law that limits corporate contributions:

In a 5-2 opinion, the Montana court’s majority concluded that the state’s long history of well-funded natural resource extractors, small population and historically inexpensive political campaigns allow it to demonstrate compelling government interest in regulating corporate financial muscle. Even one of the justices who dissented – saying that the U.S. Supreme Court left no room for states to exempt themselves – argued forcefully against the broad corporate latitude encompassed in the Citizens United decision.

“Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people – human beings – to share fundamental, natural rights with soulless creatures of government,” Justice James C. Nelson wrote in his reluctant dissent.

“Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons,” he wrote.

(emphasis mine)

Clearly, Citizens United is uniting people who oppose the solidification of the corporate take over of the government. In December, Sen. Bernie Sanders (I-VT) introduced a constitutional amendment, S.J.Res.33 (pdf), that would strip corporations of the same constitutional rights as persons, subject them to regulation, bar them from making campaign contributions and grant Congress the power to regulate campaign finance. There are now four different constitutional amendments to the U.S. House and Senate seeking to overturn the Citizens United ruling.

In Los Angeles, CA, the city council unanimously passed a non-binding resolution in support of such an amendment.

Then, in one of their first acts of the New Year, the New York City Council passed a resolution calling on congress pass an amendment overturning Citizens United v. Federal Election Commission. Oakland, CA; Albany, NY; Missoula, MO; Boulder, CO and South Miami, FL have all passed similar resolutions.

The Montana decision, which applies only to state elections, is important because it sets the path for the return of the issue to the US Supreme Court, while we wait to see if a constitutional amendment can be passed.

Greg Sargent at the Washington Post reports:

Obama is set to appoint Sharon Block, Terence Flynn, and Richard Grifin to the board – something unions have made a big priority for them in the new year. Senate Republicans have opposed the recess appointments to the NLRB on constitutional grounds, but unions charge that Republicans are only interested in rendering the agency inoperative.

Obama’s move, which will help energize unions in advance of the 2012 election, is yet another sign that he is determined to circumvent GOP opposition and make government functional again by any means necessary. It’s another sign that the White House and Dems have abanoned the illusion that anything can be done to secure bipartisan compromise with Republicans on the major items on Obama’s agenda.

From Think Progress:

All 47 Senate Republicans have warned Obama of a “constitutional conflict” should he choose to use his recess appointment powers – authority he is well within his right to use, as ThinkProgress’ Ian Millhiser noted yesterday – but it was Chief Justice John Roberts, a noted conservative, who said the president should make recess appointments to keep the NLRB functioning, as ThinkProgress reported in 2010.

Obama’s appointment of Block, Flynn, and Griffin is important, too, because it boosts the board’s membership to five, protecting its quorum even if member Brian Hayes follows through on his threats to quit. Preserving its right to quorum ensures that its rulings will not be thrown out on legal challenges, as more than 600 cases were by the Roberts Court in 2010.

It was announced by the White House that President Barack Obama will make a recess appointment of former Attorney General of Ohio, Richard Cordray to head the newly created Consumer Financial Protection Bureau (CFPB):

President Barack Obama installed Richard Cordray as head of the Consumer Financial Protection Bureau with a recess appointment today, testing the limits of his executive authority to fill the post without Senate approval.

Obama nominated Cordray to be the bureau’s first director in July, almost one year after enactment of the Dodd-Frank financial regulatory law creating the agency. Republicans blocked Cordray’s confirmation by the Senate last month. Putting him in the job today may set up an election-year court fight between the White House and Congress.

Even thought the Senate has been under Democratic control since 2006 when the tactic of pro forma session was first employed to keep President George W. Bush from making recess appointments to the bench, there have been questions by legal scholars about the constitutionality about their use. It has since been used to placate the Republicans in hopes of winning their cooperation, obviously to no avail.

Senate Majority Leader Mitch McConnell (R-KY) called President Obama move “arrogant”, saying that “Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.”

House Speaker John Boehner had a similar reaction calling the appointment an “extraordinary and entirely unprecedented power grab” by the president.

The legal precedent for these sessions is on very shaky ground. In a 1993 court case involving the Postal Service Board of Governors, Justice Department lawyers argued in court papers that presidents can make recess appointments when the Senate is out of session for more than three days.

The brief suggested that a president might lack that authority during shorter breaks. Pointing to the constitutional requirement that the Senate and House get one another’s consent before adjourning for more than three days, the Justice Department said the constitutional framers might not have considered shorter recesses to be significant.

“If the recess here were of three days or less, a closer question would be presented,” the Justice Department argued.

However, lawyers who advised President George W. Bush on recess appointments wrote that the Senate “cannot use sham ‘pro forma’ sessions to prevent the president from exercising a constitutional power.”

David Dayen at FDL points out the Constitutional argument that there is no time requirement in the Constitution for Congress to be in recess before the president can make recess appointments:

As for the judicial question on whether pro forma sessions count as keeping Congress in session, the 11th Circuit Court of Appeals ruled back in 2007 that “The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.” On the other side of this, Solicitor General Neal Katyal, in a 2010 case, argued that the Administration recognized that a 3-day recess was “too small,” in their understanding, to make appointments.

While the Republicans will very likely mount a court challenge, claiming past precedent, it may well fail since the president has the power to make recess appointments under Article II, Section 2 of the Constitution which states, “the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” It can be argued that Congress is in recess when they gavel out at the end of each day or whenever there is no quorum, which goes to the constitutional argument about pro forma sessions.

The other issue is why didn’t he appoint Elizabeth Warren who is eminently more qualified than Cordray to head the CFPB? It is most likely because of objections from Treasury Secretary Timothy Geithner’s objections and her memo to the the state attorney general’s who are negotiating a settlement with the big banks over mortgage fraud.

Make no mistake, Obama is doing this now for purely political motivations. It emphases Republican obstructionism and as a ploy to win back the disenfranchised left wing of the Democratic Party, as well as, the Independent voters who believed in all his “hopey, changey” campaign rhetoric.