The pro forma congressional session that are being used to prevent President Obama from making recess appointments has been much discussed here and at other sites like FireDogLake and Talking Points Memo. It has also been argued by Constitutional scholars that they are little more “than a game of separation-of-powers chicken”. They have been used to keep the president from filling vacancies in the courts and in his administration that are vital to the operation of the government. These sessions and the president’s reluctance to challenge their constitutional legality has kept Elizabeth Warren from being appointed to head the new Consumer Financial Protection Bureau and a Nobel winning economist, Richard Diamond from a seat on the Federal Reserve.

Once a the president missed an opportunity to put an end to Republican obstruction and make important appointments, like Richard Cordray to the CFPB and the vacancies on the National Labor Relations Board. President Obama has a number of options available under the Constitution to bypass congress and make these appointments, as  David Dayen at FDL News Deskpoint out:

During the recess, the President has a number of opportunities to make recess appointments. He could simply determine that the pro forma sessions being used to keep Congress active were insufficient to prevent recess appointments. He could use his Constitutional power to adjourn Congress. But both of those would fly in the face of recent precedent (Presidents have generally respected the pro forma process, and no President has actually used the adjournment power.)

The one option with Presidential precedent behind it was the “Roosevelt precedent.” Congress simply has to adjourn for a short period, a split second really, to shift from the first session of the 112th Congress to the second session. In that window, Theodore Roosevelt made hundreds of recess appointments previously.

Victor Williams, Assistant Professor at the Catholic University of America School of Law and an attorney, writing in the Huffington Post last week urged Obama to put an end to the “myth” that an official congressional recess lasts three days or more and the Republicans’ de facto “nullification” of government:

As the 112th Senate left for its break, Minority Leader Mitch McConnell unsuccessfully attempted to wrangle a recess concession from Obama. McConnell demanded that Obama promise not to sign any recess commissions during the holidays. McConnell blocked a confirmation vote for 50 officials when Obama ignored the Article II, Section 2 shake down.

Adding insult to constitutional injury, congressional Republicans again manipulated the Senate into scheduling 10 pro-forma sessions — intending to interfere with Obama’s recess appointment authority. (As I argued in recent Jurist commentary, in prior posts, and a National Law Journal opinion, the sessions do not prevent the Executive from signing recess commissions.)

Prof. Williams goes on, laying out all the president’s options urging him that the better option would be to invoke Article II, Section 2 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,” after the start of the new session of the 112th Congress which began today at 12:01 PM EST:

Recess commissions signed before the end of the 112th Senate’s first session — Jan. 3, 2012 at 12 p.m. — last through 2012. However, recess commissions better-timed to be signed instantly at noon (or anytime after the second session formally begins) last through 2013. The officials could then be re-recess appointed during Obama’s second term.

In a time and place of his choosing, Barack Obama should use the Article II, Section 2 recess appointment alternative. President Obama should concurrently renounce the three day recess myth underlying Senate pro forma sessions announcing a simple test: If the Senate is not sitting as a deliberative body able to provide timely confirmation consent, the Executive may fill any vacant federal office.

But according to Brian Buetler at TPM, legal experts believe that today was the last opportunity for Obama to use the “Roosevelt precedent”:

Today was the day that legal experts and many aides in both parties thought President Obama would provide a recess appointment to Richard Cordray, his nominee to administer the new Consumer Financial Protection Bureau […]

But a senior administration official who would not be quoted told reporters at a White House background briefing Tuesday that Obama will not take advantage of that opening.

The official declined to provide further explanation, but the decision implies one of three things: that Obama does not believe he’s encumbered by technical restrictions on his power to recess appoint nominees and can still act between now and late January when Senators return to town; that he will instead wait until a future recess when feels he has more running room and political capital to recess appoint Cordray and others; or that he has no intention of challenging Congressional Republicans by making further recess appointments between now and the end of this Congress.

So by not taking advantage of the ‘Roosevelt precedent”, will Obama go where no president has gone before and invoke Article II, Section 2? Or will he continue on the more predictable path of allowing the minority in the Senate to obstruct his agenda?

I’m opting for the latter. Fool me, Barry.

Montana residents William Crain, an artist and Stewart Rhodes, an attorney, have launched a petition to recall the state’s congressional delegation, Sen. Max Baucus (D), Sen. Jonathan Tester (D) and Rep. Denny Reberg (R) over their vote for the National Defense Authorization Act that explicitly authorized the indefinite detention of terrorism suspects, including American citizens. Montana is one of nine states that has provisions to recall its elected federal officials. Under the Montana Recall Act all state officials in Montana are subject to recall for physical or mental lack of fitness, incompetence, violation of the oath of office, official misconduct, or conviction of a felony offense. The Montana petitions (there is one for each of the three), states the following “reason for recall”:

   1. “The Sixth Amendment of the U.S. Constitution guarantees all U.S citizens: “a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…”

   2.  The National Defense Authorization Act of 2011 (NDAA 2011) permanently abolishes the Sixth Amendment right to a jury trial, “for the duration of hostilities” in the War on Terror, which was defined by President George W. Bush as “task which does not end” to a joint session of Congress on September 20, 2001.

   3.  Those who voted Aye on December 15th, 2011, Bill of Rights Day, for NDAA 2011 have attempted to grant powers which cannot be granted, which violate both the spirit and the letter of the Constitution and the Declaration of Independence.

   4.  The Montana Recall Act stipulates that officials including US senators can only be recalled for physical or mental lack of fitness, incompetence, violation of the oath of office, official misconduct, or conviction of a felony offense.

   5. Section 1021 of the National Defense Authorization Act reads in substance: “Congress affirms that the authority of the President to detain …A person who was a part of or substantially supported al-Qaeda…or associated forces…including any person who has…directly supported such hostilities in aid of such enemy forces…The disposition of a person…may include…Detention…without trial until the end of the hostilities…”

   6. “Substantial support” of an “associated force” may imply citizens engaged in innocuous, First Amendment activities.  Direct support of such hostilities in aid of enemy forces may be construed as free speech opposition to U.S. government policies, aid to civilians, or acts of civil disobedience.

   7. Section 1021 reads: “Nothing in this section shall be construed to affect existing law.”  But “existing law” may be construed to refer to Padilla v. Rumsfeld in the Fourth Circuit Court of Appeals, which upheld the government’s claim of authority to hold Americans arrested on American soil indefinitely.

   8. Thus Senators Bacus, Tester, and Congressman Rehberg who voted Aye on December 15th, 2011, Bill of Rights Day, for NDAA 2011 have violated his Oath of Office to protect and defend the U.S. Constitution which guarantees all citizens the right to a jury trial “In all criminal prosecutions.”

According to the press release, Mr. Rhodes stated:

These politicians from both parties betrayed our trust, and violated the oath they took to defend the Constitution. It’s not about the left or right, it’s about our Bill of Rights. Without the Bill of Rights, there is no America. It is the Crown Jewel of our Constitution, and the high-water mark of Western Civilization. [..]

Two time Medal of Honor winner Marine General Smedley Butler once said “There are only two things we should fight for. One is the defense of our homes and the other is the Bill of Rights.” Time to fight.

It’s not clear if the courts will allow states to recall their federal politicians. It hasn’t gotten very far in the past. In 1967, a recall campaign was waged against Sen Frank Church by Ron Rankin, a Republican county commissioner in Kootenai County in northern Idaho. The U.S. District Court for Idaho ruled that the state’s recall laws did not apply to U.S. senators and that such a recall would violate the U.S. Constitution. Since Idaho’s State Attorney General Alan Shephard decided to accept the court’s ruling, writing that “It must be pointed out that a United States senator is not a state officer but a federal officer whose position is created by Article I, Section I of the United States Constitution. There seems to be no provision for canvassing the votes of a recall election of a United States senator.”

However, it can be argued that since there is no provision provided in the Constitution to recall members of congress, that right is preserved for the states under the 10th Amendment which states:  

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Leaving Mr. Rhodes’ affiliation with The Oath Keepers, a group that has been criticized in the past for adopting extremist views and language, and for their supposed ties to white supremacist and militia groups, the petition drive does have some merits. If successful, it could lead to other states passing laws to provide for the recall of elected federal officers who think that the Constitution is quaint. Good luck to them and perhaps good riddance to Baucus, Tester and Reberg.

“Duck House”:

I sit on the floor of the Duck House with thirty others, brainstorming for the January action. Neither men nor women dominate the group. We are young, and surprisingly old. Counter-culture and conservatively clad. We question whether it is nobler to seek permits or just show up unannounced. We speak of banners, flyers and street theater-anything to educate the public about our goal.

Even when I still lived in Arizona, I had heard of this place. Democracy Unlimited Humboldt County (DUHC) or “Duck” was on the forefront of the war against corporate power. In 1998, they helped pass a ballot initiative establishing the Democracy and Corporations standing committee in Arcata’s city council here in California.

The Committee’s primary functions are: to research and present to the Council options for controlling the growth of “pattern restaurants” in the community; to cooperate with other communities working on socially responsible investing and procurement policies; to make recommendations to the Council, and/or with the Council’s approval, provide educational opportunities to promote “fair trade”; to inform citizens of corporations with negative social and environmental impact; and to provide advice on ways to foster sustained locally-owned businesses, publicly or locally owned services and worker-owned cooperatives and collectives.–City of Arcata

The committee was hailed by Howard Zinn, Noam Chomsky, and Jim Hightower. Ralph Nader commented, “I look forward to Arcata being a luminous star in the rising crescendo of democracy in our country.”

Embolden by this success, they passed Measure T in 2004. It forbid nonlocal corporations from contributing to local political campaigns. Two corporations immediately challenged the initiative as unconstitutional. Before the case could be decided by the courts, Humboldt’s Board of Supervisors succumbed to corporate pressure and declared this popularly elected law nullified.

DUHC learned from this experience. They won’t be going it alone, this time. They are but one small seed of democracy, but they are amassing with others to change the political landscape in America. They have joined Move to Amend in a miliary campaign, and this time their aim is not a city ordinance in some far off town on the edge of America, but changing the highest law in the land.

Extractionism: taking money from others without creating anything of value; anything that produces economic growth or improves our lives.

MSNBC talk show host, Dylan Ratigan has a new book, Greedy Bastards, coming out in January and has been promoting the premise of the book, how the banks have shaken down taxpayers, in a series of on-line pod casts. He recently interviewed Yves Smith, author of ECONned and proprietress of naked capitalism, gave Dylan an education of how the banks have been extracting capital for themselves and why investors are afraid to take them to court for fear the government will retaliate.

Under an extractionist system, we find lose value at a faster rate over time, while we need to be creating it.  Instead of giving people incentives to make good deals where both sides can benefit, extractionist systems rewards those who take and take some more, and give nothing in return.  Sadly, extractionism has crept its way into every aspect of our economy – it’s everywhere, from trade to taxes to banking.

Let’s take a look at banking as an example.  As Yves Smith explains, financial firms do provide valuable services to our economy, like establishing stable and reliable methods of payment for goods and services, and selling bonds and stocks to help raise new money to fund big projects. There are more than that, of course, but those are two basic examples of valuable services that our banking and financial sector provides.

Now, let’s look at how they can also be extractive – almost always going back  the lack of transparency in the financial markets.

Yves identifies two main extractive techniques of our financial industry.  The first is charging too much for goods or services. “Even fairly sophisticated customers can’t know what the prices are of many of the products, so it’s difficult for them to do side-to-side comparisons,” says Yves.

The second method is producing products that are so complicated – like in the swaps market – that clients can’t see hidden risk in them.  “This has unfortunately become extremely common now that we have a lot more use of derivatives. Many of the formulas that are used they are disclosed by they are extremely complicated, and then on top of that, the risk models that are commonly used for evaluating the risk actually understate the risk,” says Yves.

(emphasis mine)

In the interview Yves makes suggestions how this can be fixed:

1. A small tax on all financial transactions.

2. Give financial institutions a bigger financial responsibility when they knowingly recommending bad products or dubious strategies.

3. We need increased political pressure for an effective and robust Securities and Exchange Commission.

4. More inspection of what the banks are doing in their over-the-counter businesses.

The full interview transcript is here.

Yes, we do need a Constitutional amendment to get money out of politics so this can be stopped.

h/t Yves Smith @ naked capitalism

Well worth the 50 minutes.

Conversations host Harry Kreisler welcomes writer Glenn Greenwald for a discussion of his new book, “With Liberty and Justice for Some.” Greenwald traces his intellectual odyssey; analyzes the relationship between principle, power, and law; and describes the erosion of the rule of law in the United States. Highlighting the degree to which the legal system frees the powerful from accountability while harshly treating the powerless, Greenwald describes the origins of the current system, its repudiation of American ideals, and the mechanisms which sustain it. He then analyzes the media’s abdication of its role as watchdog role. He concludes with a survey of the the record of the Obama administration in fulfilling its mandate, argues for an alternative politics, and offers advice for students as they prepare for the future. Series: “Conversations with History”

h/t Michael Kwiatkowski @ Progressive Independence

Besides shifting the conversation in the media from budget cuts, deficits and austerity to jobs, jobs, jobs, the Occupy Wall Street movement has also brought more attention to how Wall St., banks and, especially mega-corporations control the two parties and influence politics. Follow the money. Since the Supreme Court ruling that corporations are people and money talks, some politicians, organizations and a few in the media have been examining ways to get money out of politics and put government back in the hands of the governed. One of those means is a constitutional amendment as proposed by Independent Vermont Senator Bernie Sanders:

Sanders’s amendment, S.J.Res. 33 (pdf), would state that corporations do not have the same constitutional rights as persons, that corporations are subject to regulation, that corporations may not make campaign contributions and that Congress has the power to regulate campaign finance.

While the Citizens United case affected corporations, unions and other entities, the Sanders amendment focuses only on “for-profit corporations, limited liability companies or other private entities established for business purposes or to promote business interests.”

Sanders said he has never proposed an amendment to the Constitution before, but said he sees no other alternative to reversing the Citizens United decision.[..]

The Sanders amendment is co-sponsored by Sen. Mark Begich (D-Alaska), and a similar amendment has been proposed in the House by Rep. Ted Deutch (D-Fla.).

On December 3, the Los Angeles City Council voted unanimously to support such a constitutional amendment:

The resolution was backed by Move to Amend, a national coalition working to abolish corporate personhood and overturn U.S. Supreme Court’s controversial Citizens United ruling. The decision gave corporations and unions the ability to spend unlimited amounts of money to influence elections, so long as their actions are not coordinated with a candidate’s campaign.

“Move to Amend’s proposed amendment would provide the basis for overturning the recent Supreme Court decision in Citizens United v. Federal Election Commission,” stated Mary Beth Fielder, Co-Coordinator of LA Move to Amend. “The Supreme Court has no legitimate right to grant people’s rights to corporations. We must clearly establish that it is we, The People, who are meant to rule.”

Move to Amend hopes to get ballot initiatives put on the ballots in cities and states for the 2012 election to help voters show their representatives that they are serious about reigning corporate influences in elections:

“These are how American amendments move forward from the grassroots when Americans say enough is enough.  We’re very proud to come together and send a message but more than that, this becomes the official position of the City of Los Angeles, we will officially lobby for this.  I also chair a group which oversees all the Democratic mayors and council members in the country and we’re going to share this with all our 3,000 members and we hope to see this start here in the west and sweep the nation until one day we do have a constitutional amendment which will return the power to the people.”

There is some bipartisan agreement between Democrats and true conservative Republicans. Former Louisiana governor, congressman and candidate for the GOP presidential nomination, Buddy Roemer, agrees with Sen. Sanders on getting money out of politics when he appeared with Dylan Ratigan on MSNBC. You won’t hear Roemer in any of the debates that are being run by Fox, CNN but he has been getting exposure on the talk show rounds. Roemer believes, like Sanders, that “Washington is being bought and sold like a sack of potatoes”

Like the LA City Council, Occupy Wall Street, Sen. Sanders and Gov. Roemer, we agree that this is the best solution. It will be fought by the corporations and those they control and like any fight it starts with first steps. Lets hope it grows. The survival of democracy in America depends on it.

Contrary to the will of special interests, Buddy wants to see Washington reform that includes full disclosure of campaign contributions, 48 hour electronic reporting of campaign contributions, the elimination of the Super PACs that keep the GOP’s top contenders at the top, limiting PAC donations to same amount of money that individuals can contribute, prohibiting lobbyists from participating in fundraisers, and imposing criminal penalties on those that violate the rules of campaign finance.

These changes seem to be what most Republican voters are looking for, but without a Super PAC to fund him, Roemer is unable to throw the millions of dollars the big spenders like Romney, Perry and even Ron Paul shell out on publicity. And Americans cannot expect those taking money from special interest groups to protect citizens from those very same special interest groups. [..]

Buddy also wants to end corporate welfare. Corporations are big spenders when it comes to campaign contributions. While big oil companies no longer need government money to survive, since they earn billions in profits selling overpriced gasoline and oil to consumers, they are willing to shell out large amounts of campaign money to ensure the politicians that will push their agendas are elected.

Freedom’s Just another word for nothin’ left to lose. ~ Kris Kristofferson, “Me And Bobby Mcgee“

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety. ~ Benjamin Franklin

“We’re going to destroy it before they can get their hands on it. You can take away out lives but only we can take away out freedom.“ ~ Jon Stewart

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.

Tonight the US Senate has abridged that amendment with the passage of the National Defense Authorization Act that contains a provision that would allow for the indefinite detention of American civilians arrested on American soil suspected of being “enemy combatants” by a vote of 93 -7. It allows for anyone alleged to be an “enemy combatant” anywhere in the world sent to military prisons indefinitely without even being charged with a crime.

The bill sponsored by Sen. Carl Levin (D-MI) and Sen. John McCain (R-AZ) was drafted in secret and passed out of committee without a single hearing.

Glen Greenwald at Salon highlights the most alarming aspects of the bill:

   (1) mandates that all accused Terrorists be indefinitely imprisoned by the military rather than in the civilian court system; it also unquestionably permits (but does not mandate) that even U.S. citizens on U.S. soil accused of Terrorism be held by the military rather than charged in the civilian court system (Sec. 1032);

   (2) renews the 2001 Authorization to Use Military Force (AUMF) with more expansive language: to allow force (and military detention) against not only those who perpetrated the 9/11 attacks and countries which harbored them, but also anyone who “substantially supports” Al Qaeda, the Taliban or “associated forces” (Sec. 1031); and,

   (3) imposes new restrictions on the U.S. Government’s ability to transfer detainees out of Guantanamo (Secs. 1033-35). [..]

The Levin/McCain bill would require that all accused Terrorists be held in military detention and not be charged in a civilian court – including those apprehended on U.S. soil – with two caveats: (1) it exempts U.S. citizens and legal residents from this mandate, for whom military detention would still be optional (i.e., in the discretion of the Executive Branch); and (2) it allows the Executive Branch to issue a waiver if it wants to charge an accused Terrorist in the civilian system.

As per emptywheel, Sen. Diane Feinstein (D-CA) proposed an amendment (pdf) that would have removed the language but it was defeated by a vote of 45 – 55.

Some has forgotten to tell the Senate that Osama bun Laden is dead, we have killed virtually all of Al Qaeda’s leadership and the group is “operationally ineffective” in the Afghan-Pakistan and region and that we are near completion of withdrawal from Iraq and beginning to draw down the troops in Afghanistan. But the absurd view from war hawk, conservatives like Sen. Lindsay Graham (R-SC) who believe Al Qaeda is a threat that requires trashing the Constitution, as Graham said:

“The threats we face as a nation are growing. Homegrown terrorism is going to become a greater reality, and we need to have tools,” Graham argued. “Law enforcement is one tool, but in some cases holding people who have decided to help al Qaeda and turn on the rest of us and try to kill us so we can hold them long enough to interrogate them to find out what they’re up to makes sense.”

“When you hold somebody under the criminal justice system you have to read them their rights right off the bat,” Graham added. “Under the law of war you don’t because the purpose is to gather intelligence. We need that tool now as much as any time, including World War II.”

That is most chilling statement regarding to our civil liberties. This is from the same man who supported President Obama’s due-process-free assassination of Anwar Awlaki that totally disregarded Article 3, Section 3 of the Constitution which provides that nobody can be punished for treason without heightened due process requirements being met.

It isn’t often that freshman Tea Party Sen. Rand Paul (R-KY) says something sensible but he wrote in the Washington Times defending the Sixth Amendment that the “war on terror doesn’t justify retreat on rights”:

James Madison, father of the Constitution, warned, “The means of defense against foreign danger historically have become instruments of tyranny at home.” Abraham Lincoln had similar thoughts, saying, “America will never be destroyed from the outside. If we falter, and lose our freedoms, it will be because we destroyed ourselves.”

During war, there has always been a struggle to preserve constitutional liberties. During the Civil War, the right of habeas corpus was suspended. Newspapers were closed. Fortunately, those actions were reversed after the war.

The discussion now to suspend certain rights to due process is especially worrisome, given that we are engaged in a war that appears to have no end. Rights given up now cannot be expected to be returned. So we do well to contemplate the diminishment of due process, knowing that the rights we lose now may never be restored.

Will President Obama veto this bill as has been hinted? Not likely, since as Greenwald point out Obama has maintained that dozens of detainees would continue to be held indefinitely and that he planned“not to close, but simply to re-locate to Illinois, the Guantanamo system of indefinite, military detention.” While the President has expressed his opposition to the bill, his objection is that the matter of denying accused terrorists a civilian trial is not up to Congress but for the President alone to decide. In other words, the White House’s objections are grounded in broad theories of Executive Power.

While Greenwald may be willing to believe the White House is opposed to having the military detain and imprison U.S. citizens on U.S. soil, there are those who think President Obama is more concerned over who should get to decide which accused terrorist suspects are denied due process, not whether they should be.

Chipping away at our liberties. Frightening.

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety. ~ Benjamin Franklin

The US has killed the 16 year old son of Anwar Al-Awlaki who was killed in last month in an unmanned drone attack ordered by President Obama. The teenager had run away from home to find his father. On Friday, Abdulrahman al-Awlaki was killed in unmanned drone attack in southeastern Yemen. The Al-Awlaki family is speaking out about the killings.

“To kill a teenager is just unbelievable, really, and they claim that he is an al-Qaeda militant. It’s nonsense,” said Nasser al-Awlaki, a former Yemeni agriculture minister who was Anwar al-Awlaki’s father and the boy’s grandfather, speaking in a phone interview from Sanaa on Monday. “They want to justify his killing, that’s all.”

Former Justice Department attorney and whistleblower, Jesselyn Radack discusses how the US has gone further down a very slippery slope into “Wonderland”:

In a still secret–yet described in detail in the New York Times–memo, the Justice Department justified assassinating American citizen al-Awlaki despite the myriad laws and the Constitution such a killing would violate. As New York Times journalist Charlie Savage pointed out, there exists

   an executive order banning assassinations, a federal law [that prohibits Americans from murdering other Americans abroad], protections in the Bill of Rights [the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law”], and various strictures of the international laws of war . . .

The Justice Department has refused to release the secret memo despite calls from major media outlets and a FOIA request from my organization (the Government Accountability Project), but has assured us that the justification for killing an American was for al-Awlaki only, and did not set a precedent.  But now we are sliding down the slippery slope.  The U.S. killed American Samir Khan–the publisher of the controversial magazine Inspire (clearly First Amendment activity) along with al-Awlaki and now, the young Awlaki was the third American killed in Yemen in as many weeks.

[]

But now we have taken to killing American teenagers without due process, an action the U.S. Supreme Court could not take even if al-Awlaki’s son had a full criminal trial. The Supreme Court held in Roper v. Simmons that even after a suspect receives due process in court–something al-Awlaki and his son were secretly and summarily denied–using the death penalty on juveniles is cruel and unusual punishment that violates the Constitution.

Speaking of the Supreme Court, the Court weighed in on the rights of American citizens labeled “belligerents” and has held that they must receive some measure of due process. In Hamdi v. Rumsfeld, Justice Sandra Day O-Connor eloquently explained:

   . . . a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens . . .

Many of us on the left and on the blogs were vociferously and adamantly opposed to the Bush regimes use of torture and we were truly dismayed when then House Speaker Nancy Pelosi took impeachment of both Bush and Cheney off the table. We were again disheartened when President Obama decided not to even investigate the criminality of Bush cabal. Now, one would think that there would be an outcry from the so called progressives on targeting American citizens for assassination and the use of unmanned drones which may well be a war crime but apparently not on the web site where Ms. Radack published her article. Those who were the loudest opposition to the Bush crimes and torture were out in force in comments with some of the most right wing rational for supporting Obama’s criminality:

the son was collateral damage. Get the father into a court room, and the son gets to live. Then when daddy Awlaki is locked up in a federal prison, sonny Awlaki can become a terrorist leader on his own. Then various people here can cluck over him when he finds his way into US military crosshairs for his own evil deeds. Perhaps by that time he’ll have had some little Awlakis of his own, who we can cluck over even more.  See, this can keep going for a long darn time.

Generations in fact.

This was addressed directly to Ms. Radack:

Because if there’s any right that’s sacred.. in the minds of most Americans, it’s the right to travel the back roads of Yemen as part of an organization proudly devoted to the destruction of the United States and the mass killing of its people.  After all, I’m pretty sure that’s all just idle bluster.

This is where I try to set aside my own views and offer what I think is some strategically sound advice to you, and you can take it as you will.  Why not focus on torture, rendition, and other stuff where you enjoy some greater chance of success, and then leverage that success into this toughest of nuts?

This comment was made by an African American lawyer

I’ll save my tears for things worth crying about. Some 16 year old kid winning a Darwin Award doesn’t cut it.

These are just a few of the degenerate, despicable comments that praised these killings and defended Obama. There were many responses that were horrified by such rhetoric. It makes one wonder just how far Obama cult of followers will sink before they realize their hero is not just very flawed but as evil as the last president if not worse.

Like his predecessor, George W. Bush, President Barack Obama went to his Office of Legal Council on how to circumvent an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war to “legally” order and successfully carry out the assassination of American citizen Anwar al-Awlaki last month in Yemen. According to an article by reporter Charles Savage in the New York Times, the 50 page memorandum was completed in June of last year. It was written specifically in regard to only al-Awlaki and did not examine the evidence against him:

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him.

[]

It was principally drafted by David Barron and Martin Lederman, who were both lawyers in the Office of Legal Counsel at the time, and was signed by Mr. Barron. The office may have given oral approval for an attack on Mr. Awlaki before completing its detailed memorandum. Several news reports before June 2010 quoted anonymous counterterrorism officials as saying that Mr. Awlaki had been placed on a kill-or-capture list around the time of the attempted bombing of a Detroit-bound airliner on Dec. 25, 2009. Mr. Awlaki was accused of helping to recruit the attacker for that operation.

[]

Other assertions about Mr. Awlaki included that he was a leader of the group, which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again. The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located.

Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 – meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.

Mr. Savage goes on to detail how each legal obstacle was  considered and rejected:

The executive order the lawyers concluded only pertained to the assassination of political leaders outside of war;

The statute that makes it illegal to murder of US nationals on foreign soil did apply “because it is not “murder” to kill a wartime enemy in compliance with the laws of war.”;

It concluded that if the operator of the drone was a civilian of the CIA it wold not be a war crime and although it would violate the laws of Yemen, ti would be unlikely that Yemen would seek to prosecute;

Last to be considered and dispensed with were those pesky amendments in the Bill of Rights that guarantee “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and the right to due process:

The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal. It cited court cases allowing American citizens who had joined an enemy’s forces to be detained or prosecuted in a military court just like noncitizen enemies.

It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

The document’s authors argued that “imminent” risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located.

Despite the argument that will be made by the right wing Obama supporters that the memorandum is specific to al-Awlaki, all the arguments that were made to justify his assassination could easily be made against any US citizen anywhwere and may already have been:

   American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions . . . . There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council . . . . Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate. . . . The role of the president in ordering or ratifying a decision to target a citizen is fuzzy. White House spokesman Tommy Vietor declined to discuss anything about the process. . . .

Glenn Greenwald at Salon in his excellent article considers that al-Awlaki won’t be the last victim:

Officials in the Obama White House and then the President decreed in secret that Awlaki should die.  So the U.S. Government killed him.  Republicans who always cheer acts of violence against Muslims are joined by Democrats who reflexively cheer what this Democratic President does, and now this death panel for U.S. citizens – operating with no known rules, transparency, or oversight – is entrenched as bipartisan consensus and a permanent fixture of American political life.  I’m sure this will never be abused: unrestrained power exercised in secret has a very noble history in the U.S. (Reuters says that the only American they could confirm on the hit list is Awlaki, though Dana Priest reported last year that either three or four Americans were on a  hit list).

Anyway, look over there: wasn’t it outrageous how George Bush imprisoned people without any due process and tried to seize unrestrained power, and isn’t it horrifying what a barbaric death cult Republicans are for favoring executions even when there’s doubt about guilt?  Even for those deeply cynical about American political culture: wouldn’t you have thought a few years ago that having the President create a White House panel to place Americans on a CIA hit list – in secret, without a shred of due process – would be a bridge too far?

The tales of through the looking glass continue.