Tag: Constitution

The Authorization to Use Military Force is a joint resolution passed by the United States Congress on September 14, 2001, authorizing the use of United States Armed Forces against those responsible for the attacks on September 11, 2001. During a hearing before the Senate Armed Services Committee, Pentagon officials testified that the authorization would be needed for another 10 to 20 years and could be used anywhere from “Boston to FATA (Pakistan’s federally administered tribal areas).” According to the interpretation of these officials this could be done under the current AUMF without any further authorization from Congress. Those claims elicited disbelief, even from war hawk Sen. John McCain (R-AZ) who said, “For you to come here and say we don’t need to change it or revise or update it, I think is, well, disturbing.”

Indeed, but disturbing is an understatement, but none of the Senators suggested that the powers under the AUMF be dialed back.

Testifying before the committee on May 16 were Assistant Defense Secretary Michael Sheehan; Robert Taylor, the acting general counsel for the Department of Defense; Brig. Gen. Richard Gross, Legal Counsel, Chairman of the Joint Chiefs of Staff; and Gen. Michael Nagata, Deputy Director for Special Operations/Counterterrorism, J-37, Joint Staff

This excerpt of the hearing from Democracy Now includes Sen. Lindsey Graham (R-SC); Robert Taylor, acting general counsel, Department of Defense; Michael Sheehan, assistant secretary of defense for special operations/low-intensity conflict, Department of Defense; and Sen. Angus King (I-Maine).

From Glenn Greenwald at the Guardian on Pres. Obama’s permanent war on terror:

That the Obama administration is now repeatedly declaring that the “war on terror” will last at least another decade (or two) is vastly more significant than all three of this week’s big media controversies (Benghazi, IRS, and AP/DOJ) combined. The military historian Andrew Bacevich has spent years warning that US policy planners have adopted an explicit doctrine of “endless war”. Obama officials, despite repeatedly boasting that they have delivered permanently crippling blows to al-Qaida, are now, as clearly as the English language permits, openly declaring this to be so.

It is hard to resist the conclusion that this war has no purpose other than its own eternal perpetuation. This war is not a means to any end but rather is the end in itself. Not only is it the end itself, but it is also its own fuel: it is precisely this endless war – justified in the name of stopping the threat of terrorism – that is the single greatest cause of that threat. [..]

The genius of America’s endless war machine is that, learning from the unplesantness of the Vietnam war protests, it has rendered the costs of war largely invisible. That is accomplished by heaping all of the fighting burden on a tiny and mostly economically marginalized faction of the population, by using sterile, mechanized instruments to deliver the violence, and by suppressing any real discussion in establishment media circles of America’s innocent victims and the worldwide anti-American rage that generates.

Though rarely visible, the costs are nonetheless gargantuan. Just in financial terms, as Americans are told they must sacrifice Social Security and Medicare benefits and place their children in a crumbling educational system, the Pentagon remains the world’s largest employer and continues to militarily outspend the rest of the world by a significant margin. The mythology of the Reagan presidency is that he induced the collapse of the Soviet Union by luring it into unsustainable military spending and wars: should there come a point when we think about applying that lesson to ourselves?

Then there are the threats to Americans’ security. Having their government spend decades proudly touting itself as “A Nation at War” and bringing horrific violence to the world is certain to prompt more and more people to want to attack Americans, as the US government itself claims took place just recently in Boston (and as clearly took place multiple other times over the last several years). [..]

The Obama administration already claims the power to wage endless and boundless war, in virtually total secrecy, and without a single meaningful check or constraint. No institution with any power disputes this. To the contrary, the only ones which exert real influence – Congress, the courts, the establishment media, the plutocratic class – clearly favor its continuation and only think about how further to enable it. That will continue unless and until Americans begin to realize just what a mammoth price they’re paying for this ongoing splurge of war spending and endless aggression.

Harvard Law professor and former Bush DOJ official Jack Goldsmith, who also testified, wrote this at the end of his brief summery of the hearing:

My general impression of the hearing was that (1) DOD officials were very uncomfortable talking about how they interpret the AUMF and what groups are covered by it, (2) those officials interpret the AUMF very broadly, and (3) several members of the Committee were surprised by the breadth of DOD’s interpretation of the AUMF.  I came away thinking that Congress cannot address the problem of extra-AUMF threats until it gets a handle on how the AUMF is being interpreted and deployed.  I also came away thinking more than ever that Congress needs to re-engage in a serious way about the nature and scope of the conflict against al Qaeda and affiliates.  Amazingly, there is a very large question even in the Armed Services Committee about who the United States is at war against and where, and how those determinations are made.

The solutions are for Congress to repeal the AUMF or for the Supreme Court to declare it unconstitutional. Don’t hold your breath for either of those things happening.

Regardless of the left’s opinion of Fox News, the Obama administration has gone way over the constitutional line and this is adds to the serious threat to freedom of the press. The idea that the government. on its unconstrained wild hunt for whistle blowers, can issue secret subpoenas for telephone records just got worse this morning. The case is being made against Fox News reporter James Rosen for his reporting on the possibility that North Korea would respond to additional UN sanctions with more nuclear tests back in 2009. The Department of Justice is prosecuting State Department adviser and arms expert Stephen Jin-Woo Kim for “leaking” the information to James Rosen of Fox News. To makes the case against Rosen this is what the DOJ did:

They used security badge access records to track the reporter’s comings and goings from the State Department, according to a newly obtained court affidavit. They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal e-mails. [..]

Court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist – and raise the question of how often journalists have been investigated as closely as Rosen was in 2010. The case also raises new concerns among critics of government secrecy about the possible stifling effect of these investigations on a critical element of press freedom: the exchange of information between reporters and their sources.

First, Kim did not obtain these documents illegally, he had access to them, He did not steal or sell the documents, or pass them to an enemy agent of the US. He gave, what is for all intents and purposes, innocuous information to a news reporter. For that Kim is being prosecuted under the Espionage Act. Now the DOJ is seeking to prosecute Rosen for revealing the information.

Glenn Greenwald reiterated that it is not against US law to to publish classified information and is far worse than the secret subpoena of the phone records of the Associated Press:

The focus of the Post’s report yesterday is that the DOJ’s surveillance of Rosen, the reporter, extended far beyond even what they did to AP reporters. The FBI tracked Rosen’s movements in and out of the State Department, traced the timing of his calls, and – most amazingly – obtained a search warrant to read two days worth of his emails, as well as all of his emails with Kim. In this case, said the Post, “investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material.” It added that “court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist”.

But what makes this revelation particularly disturbing is that the DOJ, in order to get this search warrant, insisted that not only Kim, but also Rosen – the journalist – committed serious crimes. The DOJ specifically argued that by encouraging his source to disclose classified information – something investigative journalists do every day – Rosen himself broke the law.

In an affidavit (pdf) from the FBI by Agent Reginald B. Reyes in the application for the search warrant, Reyes alleged that because Rosen and Kim used aliases to protect their communications and sought ways to maintain confidentiality, all completely legal for journalists to do, Rosen was acting “much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”

In her comparison of this case with the Associated Press, and cases against James Risen of The New York Times and Bradley Manning, Marcy Wheeler notes that Agent Reyes used the strategy of painting Rosen as criminal to circumvent the “Privacy Protection Act protections for media work product” in order to obtain the warrant for Rosen’s e-mails and other records:

In other words, during a period from May 2010 through January 2011, Eric Holder’s DOJ was developing this theory under which journalists were criminals, though it’s just now that we’re all noticing this May 2010 affidavit that lays the groundwork for that theory.

Maybe that development was predictable, given that during precisely that time period, the lawyer who fucked up the Ted Stevens prosecution, William Welch, was in charge of prosecuting leaks (though it’s not clear he had a role in Kim’s prosecution before he left in 2011).

But it’s worth noting the strategy – and the purpose it serves – because it is almost certainly still in effect. FBI Special Agent Reginald Reyes accused Rosen of being a criminal so he could get around the Privacy Protection Act protections for media work product (See pages 4 and following), which specifically exempts “fruits of a crime” or “property … used [] as a means of committing a criminal offense.” Then he further used it to argue against giving notice to Fox or Rosen.

   Because of the Reporter’s own potential criminal liability in this matter, we believe that requesting the voluntary production of the materials from Reporter would be futile and would pose a substantial threat to the integrity of the investigation and of the evidence we seek to obtain by the warrant. (29)

While the AP’s phone records weren’t taken via a warrant, it would be unsurprising if the government is still using this formula – journalists = criminals and therefore cannot have notice – to collect evidence. Indeed, that may be one reason why we haven’t seen the subpoena to the AP.

It is very clear that this is an unprecedented threat to freedom of the press and the Obama administration has escalated this war since Obama took office in 2009.

In an interview last week with Amy Goodman and Nermeen Shaikh, senior fellow at The Nation Institute Chis Hedges, called the monitoring of the AP phone records “one more assault in a long series of assault against freedom of information and freedom of the press.”

“Talk to any investigative journalist who must investigate the government, and they will tell you that there is a deep freeze. People are terrified of speaking, because they’re terrified of going to jail.”

~Chris Hedges~

Here is Mr. Hedges piece from Truthdig documenting The Death of Truth

Other related articles from Glenn Greenwald at The Guardian:

Justice Department’s pursuit of AP’s phone records is both extreme and dangerous

The major sea change in media discussions of Obama and civil liberties

Columnist Glenn Greenwald explains what the Boston bombings and U.S. drone attacks have in common, and how secrecy leads to abuse of government power.

“Should we change or radically alter or dismantle our standard protocols of justice in the name of terrorism? That’s been the debate we’ve been having since the September 11th attack,” Greenwald tells Bill. “We can do what we’ve been doing, which is become a more closed society, authorize the government to read our emails, listen in our telephone calls, put people in prison without charges, enact laws that make it easier for the government to do those sorts of things. Or we can try and understand why it is that people want to come here and do that.” [..]

“There certainly are cases where the United States has very recklessly killed civilians,” he tells Bill. “So at some point, when a government engages in behavior year after year after year after year, that continues to kill innocent people in a very foreseeable way, and continues to do that, in my mind that reaches a level of recklessness that is very similar to intentional killing.”

Since after 9/11, the United States has been engaged in a global war on terror (GWOT). Even as the illegal was in Iraq has allegedly ended and the one in Afghanistan finally begins to wind down almost 2 years after Osama bin Laden’s assassination, the US has widened its war in East Asia to the Arabian Peninsula and Africa sending in military on the ground as “advidsors” and unmanned armed drones to carry out “targeted strikes.” The world is now the battlefield for the US military and its contractors who are bleeding the American tax payer under the guise os keeping us safe. But are they keeping us safe? The reality is starting to surface. According to news sources the alleged Boston Marathon bombing suspect told investigators that the attack was spurred by their anger at America’s continued wars and its assault in Islam.

Yemeni journalist Farea Al-Muslimi testified before the Senate Judiciary’s subcommittee on the Constitution, civil rights and human rights. He told the committee what American’s need to hear:

“Just six days ago, my village was struck by a drone, in an attack that terrified thousands of simple, poor farmers.

“The drone strike and its impact tore my heart, much as the tragic bombings in Boston last week tore your hearts and also mine.

“What radicals had previously failed to achieve in my village, one drone strike accomplished in an instant: there is now an intense anger and growing hatred of America.”

We needed to hear this a very long time ago, long before 9/11.

Jeremy Scahill, author and National Security Correspondent for The Nation magazine, joined Amy Goodman in an interview on Democracy Now to discuss the his project Dirty Wars which has produced a documentary and soon to be released book,“Dirty Wars: The World Is a Battlefield.”

The book is based on years of reporting on U.S. secret operations in Yemen, Somalia and Afghanistan. While the Obama administration has defended the killing of Anwar, it has never publicly explained why Abdulrahman was targeted in a separate drone strike two weeks later. Scahill reveals CIA Director John Brennan, Obama’s former senior adviser on counterterrorism and homeland security, suspected that the teenager had been killed “intentionally.” “The idea that you can simply have one branch of government unilaterally and in secret declare that an American citizen should be executed or assassinated without having to present any evidence whatsoever, to me, is a – we should view that with great sobriety about the implications for our country,” says Scahill, national security correspondent for The Nation magazine. Today the U.S. Senate is preparing to hold its first-ever hearing on the Obama administration’s drone and targeted killing program. However, the Obama administration is refusing to send a witness to answer questions about the program’s legality.

Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.

   Benjamin Franklin, Historical Review of Pennsylvania, 1759

Ben would not be pleased with the government he helped create. Since before 9/11/2001, our rights had been slowly eroding, since then the notion of the rule of law and the Constitution seems quaint. “American’s don’t believe in shredding the Constitution to fight terror,” that was the headline of an article written by Greg Sargeant in the Washington Post‘s Plum Line. he points out a poll done by the Post that asked respondents:

Q: Which worries you more: that the government will not go far enough to investigate terrorism because of concerns about constitutional rights, or that it will go too far in compromising constitutional rights in order to investigate terrorism?

48% were more concerned the government would go too far; while 41% said it would not go far enough. While not a majority, it is still encouraging that there is a plurality that would like to see our Constitutional rights protected. Yet there are still those who would throw those rights away for false feeling of security. Fueled by the rhetoric of a terrorist in every Muslim community, some of our elected representatives and voices in the mainstream media have called for stripping the Constitutional rights of Dzhokhar Tsarnaev, now charged with the bombings and deaths that resulted.

But the government and the media seem to be hung up on calling this incident, terrorism and labeling Tsarnaev a terrorist even before there was a motive or a connection to any terrorist organization. Writing at The Guardian, Glenn Greenwald wonders why Boston is ‘terrorism’ but not Aurora, Sandy Hook, Tucson and Columbine:

Over the last two years, the US has witnessed at least three other episodes of mass, indiscriminate violence that killed more people than the Boston bombings did: the Tucson shooting by Jared Loughner in which 19 people (including Rep. Gabrielle Giffords) were shot, six of whom died; the Aurora movie theater shooting by James Holmes in which 70 people were shot, 12 of whom died; and the Sandy Hook elementary school shooting by Adam Lanza in which 26 people (20 of whom were children) were shot and killed. The word “terrorism” was almost never used to describe that indiscriminate slaughter of innocent people, and none of the perpetrators of those attacks was charged with terrorism-related crimes. A decade earlier, two high school seniors in Colorado, Eric Harris and Dylan Klebold, used guns and bombs to murder 12 students and a teacher, and almost nobody called that “terrorism” either.

In the Boston case, however, exactly the opposite dynamic prevails. Particularly since the identity of the suspects was revealed, the word “terrorism” is being used by virtually everyone to describe what happened. After initially (and commendably) refraining from using the word, President Obama has since said that “we will investigate any associations that these terrorists may have had” and then said that “on Monday an act of terror wounded dozens and killed three people at the Boston Marathon”. But as (Ali) Abunimah notes, there is zero evidence that either of the two suspects had any connection to or involvement with any designated terrorist organization.

New York City Mayor Michael Bloomberg added his opinion that in light of the Boston bombing, the Constitution needs to be “reinterpreted”:

“The people who are worried about privacy have a legitimate worry,” Mr. Bloomberg said during a press conference in Midtown. “But we live in a complex word where you’re going to have to have a level of security greater than you did back in the olden days, if you will. And our laws and our interpretation of the Constitution, I think, have to change.” [..]

“Look, we live in a very dangerous world. We know there are people who want to take away our freedoms. New Yorkers probably know that as much if not more than anybody else after the terrible tragedy of 9/11,” he said.

“We have to understand that in the world going forward, we’re going to have more cameras and that kind of stuff. That’s good in some sense, but it’s different from what we are used to,” he said.

A noun, a verb and 9/11? Mr. Bloomberg wants us to fear those who would “take away our freedoms.” We should fear the Michael Bloombergs and Rudolph Guilianis of the world.

At a bedside hearing, Tsarnaev was advised of his rights and was appointed a lawyer. He freely answered questions in writing, denying that there was a connection with any terrorist organization and the idea was his brother’s. He also told the court that they were motivated by extremist Islamic beliefs. But does that justify calling this terrorist act and labeling the brothers terrorists? Even so, is there ever a justification for denying a person their Constitutional rights?

Glenn joined Amy Goodman on Monday’s Democracy Now to discuss the issues that surround this case.

March 18 marked the fiftieth anniversary of Gideon v. Wainwright, the landmark case by the Supreme Court that required states under the 14th amendment to provide counsel in criminal cases for defendants who are unable to afford to pay their own attorneys, extending the identical requirement made on the federal government under the 6th Amendment.

But is justice now equal?

The Legacy of Gideon v. Wainwright

by John Light, Moyers & Company

Anthony Lewis, The New York Times journalist whose masterwork chronicled the Supreme Court’s landmark Gideon v. Wainwright decision, died earlier this week at the age of 85. The court’s ruling, handed down 50 years ago last week, established a criminal defendant’s right to an attorney, even if that defendant cannot afford one. [..]

Here are some resources on Anthony Lewis and the legacy of Gideon v. Wainwright.

1. Gideon’s Trumpet

In 1964, Lewis, a two-time Pulitzer Prize winner, published his book Gideon’s Trumpet. In it, he described Clarence Earl Gideon as a wrongly convicted Florida man convinced that he was entitled to legal representation even though the state of Florida said otherwise. [..]

2. Defending Gideon

A new documentary from The Constitution Project and the New Media Advocacy Project examines the impact of Gideon v. Wainwright and includes a recent interview with Anthony Lewis as well as an archival interview from the 1960s with Gideon, who explains that he was surprised to hear from the trial judge that he was not entitled to a lawyer. [..]

3. “The Silencing of Gideon’s Trumpet”

Ten years ago, on the 40th anniversary of Gideon v. Wainwright, Lewis described in The New York Times Magazine the “endless failures to bring the promise of Gideon to life.” He wrote, “Even more alarming is the assertion by the Bush administration that in a whole new class of cases it can deny the right to counsel altogether. [..]

4. Adam Liptak on Lewis’s Transformative Journalism

Adam Liptak, one of Lewis’s successors as Supreme Court correspondent for The New York Times, wrote the paper’s obituary of its former reporter and columnist. He noted that Gideon’s Trumpet has never been out of print from the day it was published, and that Lewis’s knowledgeable and thorough coverage of the court during the years Earl Warren served as its chief justice made him almost as essential to its history as the judges themselves. [..]

5. Andrew Cohen on Lewis and Gideon today

Writing in The Atlantic earlier this month, legal scholar Andrew Cohen described how, in the story of Gideon v. Wainwright, Lewis found material for one of the “best nonfiction works written about the Supreme Court and the American legal system.” [..]

But the thrust of Cohen’s essay is that Gideon’s legacy has not fared so well. A Brennan Center for Justice report found that many court appointed lawyers are overworked and spend less than six minutes per case at hearings where they counsel their clients to plead guilty. Lawmakers haven’t funded public defenders adequately, Cohen says, and the Supreme Court has not required them to do so.

On March 29th’s Moyers & Company, host Bill Moyers discussed the system’s failures, and ongoing struggles at the crossroads of race, class and justice with attorney and legal scholar Bryan Stevenson. Then Mr. Moyers is joined by journalists Martin Clancy and Tim O’Brien, authors of Murder at the Supreme Court, to examine the fatal flaws of the death penalty.

The broadcast closes with a Bill Moyers Essay on the hypocrisy of “justice for all” in a society where billions are squandered for a war born in fraud while the poor are pushed aside.

Earlier this week it was leaked to the press by those “anonymous White House sources” that the CIA’s drone program would be gradually transferred to the Pentagon supposedly making oversight by Congress more transparent and according to Daniel Klaidman, who first reported the shift at the Daily Beast it would also toughen the “criteria for drone” strikes and “strengthen the program’s accountability:”

Currently, the government maintains parallel drone programs, one housed in the CIA and the other run by the Department of Defense. The proposed plan would unify the command and control structure of targeted killings and create a uniform set of rules and procedures. The CIA would maintain a role, but the military would have operational control over targeting. Lethal missions would take place under Title 10 of the U.S. Code, which governs military operations, rather than Title 50, which sets out the legal authorities for intelligence activities and covert operations. [..]

Officials anticipate a phased-in transition in which the CIA’s drone operations would be gradually shifted over to the military, a process that could take as little as a year. Others say it might take longer but would occur during President Obama’s second term. [..]

uring that time, CIA and DOD operators would begin to work more closely together to ensure a smooth hand-off. The CIA would remain involved in lethal targeting, at least on the intelligence side, but would not actually control the unmanned aerial vehicles. Officials told The Daily Beast that a potential downside of the agency’s relinquishing control of the program was the loss of a decade of expertise that the CIA has developed since it has been prosecuting its war in Pakistan and beyond. At least for a period of transition, CIA operators would likely work alongside their military counterparts to target suspected terrorists.

Spencer Ackerman at The Wire, doesn’t think that this is much of a change. The CIA will still be involved telling military personnel what and who to target. Nor does Ackerman think that the program will be more transparent:

The congressional reporting requirements for so-called Title 50 programs (stuff CIA does, to be reductive) are more specific than those for Title 10 (stuff the military does, to be reductive). But the armed services committees tend to have unquestioned and broader oversight functions than the intelligence committees enjoy, not to mention better relationships with the committees: Witness the recent anger in the Senate intelligence committee that the CIA lied to it about its torture programs. The military is more likely than the CIA to openly testify about future drone operations, allow knowledgeable congressional staff into closed-door operational briefings and allow members of Congress to take tours of drone airbases.

As, Klaidman pointed out this could lead to even less transparency since there is nothing in the law that requires the military to account for its lethal operations while the CIA is obligated to report its activities.

Sen. Diane Feinstein (D-CA), the chair of the Senate Intelligence Committee which has oversight of the CIA, expressed her concerns

Feinstein told reporters her “mind, certainly, is not made up.” But she quickly added she has reservations about turning over to the military the CIA’s armed drone fleet and the missions they conduct.

   During the last few years, she said, “We’ve watched the intelligence aspect of the drone program: how they function. The quality of the intelligence. Watching the agency exercise patience and discretion,” Feinstein said.

   “The military [armed drone] program has not done that nearly as well,” she said. “That causes me concern. This is a discipline that is learned, that is carried out without infractions…. It’s not a hasty decision that’s made. And I would really have to be convinced that the military would carry it out that way.”

Sen. John McCain (R-AZ) preferred the program be transferred to Defense bringing it under the House and Senate Armed Services Committees:

“I believe the majority of the responsibility for this should rest with the military,” McCain told reporters Tuesday. [..]

“The majority of it can be conducted by the Department of Defense,” McCain said. “It’s not the job of the Central Intelligence Agency. … It’s the military’s job.”

Transferring the program to the Pentagon — and under the auspices of the House and Senate Armed Services committees — would create more “openness” and “oversight” and public hearings about the program, he said.

In reality, the Obama administration would still be running a secretive and questionably legal program.

Rachel Maddow, host of MSNBC’s “The Rachel Maddow Show,” gives a a short history of the CIA and talks with former congressman and now MSNBC contributor, Patrick Murphy, who served on the House Armed Services Committee, about oversight of the drone program.

Apparently a federal court of appeals didn’t think that the Department of Justice’s argument that the CIA had no “intelligence interest” in drone strikes carried out by the United States government and the refusal to even admit in court that the program exists, was either believable or plausable. That nonsense ended today. The US Court of Appeals for the District of Columbia ruled today in favor of the American Civil Liberties Union request for information about the CIA’s drone program.

CIA Drone Strikes Case: Court Finds It Not ‘Plausible’ That Agency Has No Role

by Ryan J. Reilly, Huffington Post

WASHINGTON — A federal appeals court has reversed a lower court’s decision (pdf) that dismissed a Freedom of Information Act lawsuit against the CIA, ruling on Friday that it was neither “logical nor plausible” for the government to contend the agency had no interest in drone strikes.

“It is hard to see how the CIA Director could have made his Agency’s knowledge of — and therefore ‘interest’ in — drone strikes any clearer,” the ruling states. “And given these statements by the Director, the President, and the President’s counterterrorism advisor, the Agency’s declaration that ‘no authorized CIA or Executive Branch official has disclosed whether or not the CIA … has an interest in drone strikes,’ … is at this point neither logical nor plausible.”

Court Rejects CIA’s Drone Secrecy Arguments Because Obama, Brennan & Panetta Made Statements

by  Kevin Gosztola, FDL The Dissenter

Judge Merrick B. Garland wrote in the decision the question before the court was whether it was “logical or plausible” for the “CIA to contend that it would reveal something not already officially acknowledged to say that the Agency ‘at least has an intelligence interest’ in” drone strikes.

“Given the extent of the official statements on the subject, we conclude that the answer to that question is no.”

A statement by President Barack Obama, made during a Google+ Hangout in January 2012, statements from then-counterterrorism adviser John Brennan during a speech at the Woodrow Wilson Center on April 30, 2012, and remarks made by then-CIA director Leon Panetta at the Pacific Council on International Policy in 2009 were all cited as “official acknowledgments that the United States has participated in drone strikes.” The acknowledgments made it implausible and illogical for the CIA to maintain “that it would reveal anything not already in the public domain to say that the Agency ‘at least has an intelligence interest’ in such strikes.”

“The defendant is, after all, the Central Intelligence Agency,” wrote Garland.

As the judge noted, Obama has “publicly acknowledged that the United States uses drone strikes against al Qaeda.” Brennan made statements that left no doubt that “some agency” operates drones. “It strains credulity to suggest that an agency charged with gathering intelligence affecting the national security does not have an ‘intelligence interest’ in drone strikes, even if that agency does not operate the drones itself.”

This is the press release from the ACLU:

DC Appeals Court Rejects CIA’s Secrecy Claims in ACLU’s Targeted Killing FOIA Lawsuit

Court Rules that CIA Cannot Deny “Interest” in Drone Program



March 15, 2013

FOR IMMEDIATE RELEASE

CONTACT: (212) 549-2666; [email protected]

WASHINGTON – A federal appeals court ruled today that the Central Intelligence Agency cannot deny its “intelligence interest” in the targeted killing program and refuse to respond to Freedom of Information Act requests about the program while officials continue to make public statements about it.

“This is an important victory. It requires the government to retire the absurd claim that the CIA’s interest in the targeted killing program is a secret, and it will make it more difficult for the government to deflect questions about the program’s scope and legal basis,” said ACLU Deputy Legal Director Jameel Jaffer, who argued the case before a three-judge panel of the D.C. Circuit Appeals Court in September. “It also means that the CIA will have to explain what records it is withholding, and on what grounds it is withholding them.”

The ACLU’s FOIA request, filed in January 2010, seeks to learn when, where, and against whom drone strikes can be authorized, and how and whether the U.S. ensures compliance with international law restricting extrajudicial killings. In September 2011, the district court granted the government’s request to dismiss the case, accepting the CIA’s argument that it could not release any documents because even acknowledging the existence of the program would harm national security. The ACLU filed its appeal brief in the case exactly one year ago, and today the appeals court reversed the lower court’s ruling in a 3-0 vote.

“We hope that this ruling will encourage the Obama administration to fundamentally reconsider the secrecy surrounding the targeted killing program,” Jaffer said. “The program has already been responsible for the deaths of more than 4,000 people in an unknown number of countries. The public surely has a right to know who the government is killing, and why, and in which countries, and on whose orders. The Obama administration, which has repeatedly acknowledged the importance of government transparency, should give the public the information it needs in order to fully evaluate the wisdom and lawfulness of the government’s policies.”

Today’s ruling is at: aclu.org/national-security/drone-foia-appeals-court-ruling

Here we are again, talking about filibuster reform. Despite the insistence of Majority Leader Harry Reid (D-NV), it ain’t fixed by any stretch of your imagination. It wasn’t Sen. Rand Paul (R-KY) and his 13 hour filibuster of CIA Director John Brennan’s nomination that set this off but the blocking of a qualified appointments by using the same cloture tactic that has been applied to stop nearly everything productive out of the Senate. The Democratic leadership has no one to blame but themselves and now they are scrambling to fix this disaster.

Top Democrats Badly Blew It on the Filibuster

by Earl Ofari Hutchinson, Huffington Post

Supposedly, the saving grace in all this is that in 2014 and beyond, Democrats might lose their majority in the Senate to the GOP and then they’ll need the filibuster as their weapon to hold the GOP in check from riding roughshod over the Obama administration in getting its legislative initiatives through. But this is all guesswork and sophistry in trying to predict the future. The reality is that in the two years that the Democrats hold their Senate majority until January 2015 there will be countless numbers of presidential nominations that need to be approved, and crucial legislation from budget bills to immigration reform proposals that the Obama administration and Democrats will be pushing. And even if the GOP does take majority control of the Senate in January 2015, there’s absolutely no guarantee that it won’t simply rewrite the rules to do what Reid didn’t do, and that’s sharply limit how and when the filibuster can be used. The loser would still be the Democrats, because that’s who the GOP would target. [..]

In the meantime, the filibuster with all of its terrifying potential to delay or style effective legislation and the confirmation of Obama nominees that have been trapped in limbo for months, even years, remains in full play. Here’s a final stat to drive home just how terrifying and damaging it has been. Since 2007, according to the Senate Historical Office, Democrats have had to end Republican filibusters more than 360 times. That is a record. With Obama in the White House for three more years, the GOP, thanks to the failure of top Democrat’s to do something about it, may even break that record.

Senate Dems Weigh Consequences For GOP Filibusters Of Key Nominees

by Brain Beutler, Talking Points Memo

Senate Democratic leaders have engaged in preliminary discussions about how to address Republican procedural obstruction, according to a senior Democratic aide, reflecting an awareness that key administration and judicial vacancies might never be filled, and that a watered-down rules reform deal the parties struck early this Congress has failed. [..]

The source said conversations are still too preliminary for Democrats to lay out publicly potential avenues of recourse just yet. And the last thing leaders want is to create the expectation that they will change the filibuster rules in the middle of the current Senate session. But they are occurring in the wake of a series of GOP filibusters of top nominees, including a cabinet secretary (Chuck Hagel), the CIA director (John Brennan), and a federal judicial nominee (Caitlin Halligan) whom Republicans have effectively blocked from confirmation to the D.C. Circuit Court of Appeals for years.

Elizabeth Warren Slams Republicans For Filibustering Consumer Protection Agency Chief

by Sahil Kapur, Talking Points Memo

“From the way I see how other agencies are treated, I see nothing here but a filibuster threat against Director Cordray as an attempt to weaken the consumer agency,” she said at a Senate Banking Committee hearing on the CFPB nomination. “I think the delay in getting him confirmed is bad for consumers, it’s bad for small banks, it’s bad for credit unions, it’s bad for anyone trying to offer an honest product in an honest market.

“The American people,” Warren said, “deserve a Congress that worries less about helping big banks and more about helping regular people who have been cheated on mortgages, on credit cards, on student loans, on credit records.” [..]

“What I want to know is why, since the 1800s, have there been agencies all over Washington with a single director, including the OCC, but unlike the consumer agency, no one in the U.S. Senate has held up confirmation of their directors demanding that the agency be redesigned,” Warren said.

“What I want to know is why every banking regulator since the Civil War has been funded outside the appropriations process but unlike the consumer agency no one in the United States Senate has held up confirmation of their directors demanding that that agency or those agencies be redesigned.”

Now the president decides to get involved.

Obama To Senate Dems: We Need Solution To GOP’s Confirmation Filibusters

by Brian Beutler, Talking Points Memo

n a closed door lunch meeting with Senate Democrats on Tuesday, President Obama expressed his frustration with Republican slow-walking and filibustering of key nominees, and urged them to address the issue, according to a senior Senate Democratic aide. [.]

The White House official said Obama “made it clear that it was a priority – particularly with judges and asked for more help identifying nominees and getting them passed.”

Though some of his supporters complain the administration has been slow to name people to fill judicial vacancies, Republicans have blocked or slow-walked the confirmation many of the people he has nominated.

Pres. Obama may may have another motivation to push for filibuster reform with the threats from Independent Vermont Sen. Bernie Sanders to filibuster any cuts to entitlements.

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

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

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

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

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

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

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

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

Anwar al-Awlaki Is the New Aluminum Tube

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

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

Moreover, the case they do present has various weaknesses.

The “linked in various ways” standard for killing Americans

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

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

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

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

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

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

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