Wednesday, May 14, 2014

Secret memos and Presidential "authority" to kill Americans



Laws are public. But David Barron's memos, licensing the President to murder Americans far from the field of battle, are secret.

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Executive power which is not tyrannical does not allow the President to act as a court of law, to be judge, jury and executioner. That is the meaning of separation of powers and of the rule of law.

Drone murders, including the 16 year old Abdulrahman Al-Awlaki and his cousin, have no legal sanction. In that case, there is no doubt that the Obama administration murdered two innocent Americans, along with 10 innocent Yemenis, at a rural food stand in Yemen.

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The Office of Legal Council is, since Bush, often mere shady lawyering for the administration. Their secret opinions have no legal standing - they are mere advice to a client often serving as "cover" (cf. John Yoo's memos on torture) for crimes. Obama or Bush or Condi can merely allude to them - "oh, the lawyers told us..."

To use such memos as a secret justification of murder is something for a tyranny or a rogue state, not a regime with the rule of law.

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But America, under Bush and now Obama, lacks both a rule of law and decency...This looks to be, in Jack Balkin's sense (the Yale constitutional law professor; see Balkinization), a new bipartisan regime. Balkin calls it a national surveillance state, but one might add, a murder of citizens-by-drone state.

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Breaking with this sick consensus, Rand Paul commendably tells the truth about these killings below, as do the ACLU and Code Pink. It is ridiculous to appoint a person to a permanent federal judgeship who has written sanctioning such murders. But worse yet, underlining their reek, Barron and the Obama administration refuse even to release the memos sanctioning murder...

These memos will not - as Obama's policies will not - stand the light of day, the publicity of law.

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It is very important that the rule of law be restored in America. Bush and Cheney were nearly fatal to it, but Obama has also done many horrific things - having no hearings about torture - see here, committing drone murders in countries the US is not at war with (acts of aggression in Somalia, Pakistan and Yemen), murders of American citizens...

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In addition, the NSA has become a completely irresponsible and illegal apparatus for spying on everyone. See the Times' review of Glenn Greenwald's new book No Place to Hide here.

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Imagine an America not dominated by militarism (an official budget of $708 billion in Obama's first year in office, a real expenditure, counting "intelligence" of over a trillion, feeding a war complex - a military-industrial-congressional-think tank- media - university presidents - foreign military clients like Egypt - intelligence complex...

Imagine an America, as Conor Friedersdorf suggests below, in which the President shuns committing murder (in today's America, even Obama, the admirer of King and Gandhi, has become, he says, "good at killing).

Imagine...

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The Establishment (Democratic-Republican) coalition to sustain torture, murder, drone murder, spying on Americans, and hold no hearings about such crimes (Bush officials have recently been on tour, widely protested from below, though, of course, none dare go abroad...) needs to be challenged. About murder, Mr. Paul does.

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"The Opinion Pages | OP-ED CONTRIBUTOR
New York Times

Show Us the Drone Memos
By RAND PAUL MAY 11, 2014

WASHINGTON — I BELIEVE that killing an American citizen without a trial is an extraordinary concept and deserves serious debate. I can’t imagine appointing someone to the federal bench, one level below the Supreme Court, without fully understanding that person’s views concerning the extrajudicial killing of American citizens.

But President Obama is seeking to do just that. He has nominated David J. Barron, a Harvard law professor and a former acting assistant attorney general, to a seat on the United States Court of Appeals for the First Circuit.

While he was an official in the Justice Department’s Office of Legal Counsel, Mr. Barron wrote at least two legal memos justifying the execution without a trial of an American citizen abroad. Now Mr. Obama is refusing to share that legal argument with the American people.

On April 30, I wrote to the Senate majority leader, Harry Reid, urging him to delay this nomination, pending a court-ordered disclosure of the first memo I knew about. Since that letter, I have learned more. The American Civil Liberties Union sent a letter to all senators on May 6, noting that in the view of the Senate Intelligence Committee chairwoman, Dianne Feinstein, “there are at least eleven OLC opinions on the targeted killing or drone program.” It has not been established whether Mr. Barron wrote all those memos, but we do know that his controversial classified opinions provided the president with a legal argument and justification to target an American citizen for execution without a trial by jury or due process.

I believe that all senators should have access to all of these opinions. Furthermore, the American people deserve to see redacted versions of these memos so that they can understand the Obama administration’s legal justification for this extraordinary exercise of executive power. The White House may invoke national security against disclosure, but legal arguments that affect the rights of every American should not have the privilege of secrecy.

I agree with the A.C.L.U. that “no senator can meaningfully carry out his or her constitutional obligation to provide ‘advice and consent’ on this nomination to a lifetime position as a federal appellate judge without being able to read Mr. Barron’s most important and consequential legal writing.” The A.C.L.U. cites the fact that in modern history, a presidential order to kill an American citizen away from a battlefield is unprecedented.

The Bill of Rights is clear. The Fifth Amendment provides that no one can be “deprived of life, liberty, or property, without due process of law.” The Sixth Amendment provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” as well as the right to be informed of all charges and have access to legal counsel. These are fundamental rights that cannot be waived with a presidential pen.

In battle, combatants engaged in war against America get no due process and may lawfully be killed. But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution.

No one argues that Americans who commit treason shouldn’t be punished. The maximum penalty for treason is death. But the Constitution specifies the process necessary to convict.

Anwar al-Awlaki was an American citizen who was subject to a kill order from Mr. Obama, and was killed in 2011 in Yemen by a missile fired from a drone. I don’t doubt that Mr. Awlaki committed treason and deserved the most severe punishment. Under our Constitution, he should have been tried — in absentia, if necessary — and allowed a legal defense. If he had been convicted and sentenced to death, then the execution of that sentence, whether by drone or by injection, would not have been an issue.

But this new legal standard does not apply merely to a despicable human being who wanted to harm the United States. The Obama administration has established a legal justification that applies to every American citizen, whether in Yemen, Germany or Canada.

Defending the rights of all American citizens to a trial by jury is a core value of our Constitution. Those who would make exceptions for killing accused American citizens without trial should give thought to the times in our history when either prejudice or fear allowed us to forget due process. During World War I, our nation convicted and imprisoned Americans who voiced opposition to the war. During World War II, the government interned Japanese-Americans.

The rule of law exists to protect those who are minorities by virtue of their skin color or their beliefs. That is why I am fighting this nomination. And I will do so until Mr. Barron frankly discusses his opinions on executing Americans without trial, and until the American people are able to participate in one of the most consequential debates in our history.

Rand Paul is a Republican senator from Kentucky."

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"The Atlantic
Rand Paul's Call for Releasing the Extrajudicial-Killing Memos
Will President Obama refuse a demand that unites the Kentucky Republican and the ACLU?

CONOR FRIEDERSDORF MAY 12 2014, 7:24 AM ET

Senator Rand Paul wrote a Sunday op-ed in the New York Times arguing that all Americans deserve to see the Office of Legal Counsel memos used to justify the killing of an American citizen without charges, trial, or due process of law. President Obama wants to appoint a lawyer who helped to write those memos to the U.S. Court of Appeals for the First Circuit. Crying foul are voices as diverse as Paul, Senator Ron Wyden, the ACLU, and antiwar group Code Pink.

Under pressure, the Obama Administration has already agreed to show at least some of David Barron's legal work on drone killing to senators, but as the New York Times editorialized last week, the public ought to see these memos as well. I've gone farther, arguing that Barron enabled killing that clearly transgressed against the Fifth Amendment, cannot be trusted to safeguard our constitutional rights on the federal bench, and should be disqualified from consideration.

Paul contextualizes the damage Barron has helped to do (emphasis added):

Anwar al-Awlaki was an American citizen subject to a kill order from Mr. Obama, and was killed in 2011 ... I don’t doubt that Mr. Awlaki committed treason and deserved the most severe punishment. Under our Constitution, he should have been tried—in absentia, if necessary—and allowed a legal defense. If he had been convicted and sentenced to death, then the execution of that sentence, whether by drone or by injection, would not have been an issue.

But this new legal standard does not apply merely to a despicable human being who wanted to harm the United States. The Obama administration has established a legal justification that applies to every American citizen, whether in Yemen, Germany or Canada. Defending the rights of all American citizens to a trial by jury is a core value of our Constitution.

For a different assessment of Barron's legal work, here's Benjamin Wittes writing at Lawfare (Lawfare often assesses executive power from the anti-rule of law, anti-decency Right):

"The memos Barron wrote—at least to the extent we can judge them from summaries of them in the press and in the administration’s white paper—are not permissive with respect to targeted killing. As I explained in detail in this congressional testimony, they are actually quite narrow. One can argue about whether they are too narrow or whether they are appropriately cautious, but it’s actually difficult to imagine the administration’s having adopted a more limiting set of legal rules than it did."

In a way, this is hard to dispute. The plain text of the Fifth Amendment forbids the premeditated killing of an American far from any battlefield–but after eight years of George W. Bush, featuring the legal work of John Yoo and David Addington, and the the national-security state's behavior under Obama, including the disappointing tenure of Harold Koh, I find it "difficult to imagine" executive-branch lawyers adhering to the Constitution when it forbids some action that they've settled on. After all, we've seen the federal government violate the Constitution and the law on many occasions during the War on Terrorism. Almost no one is ever punished and there are always lawyers around to twist words in ways that empower their bosses.

But I can imagine a Congress that stops acceding to executive-branch overreach. I can imagine efforts to deny advancement to people who play a part in eroding our rights. With sufficient political pressure, the national-security state could be forced to pay more deference to the Constitution. OLC lawyers could be shown that enabling the president is no longer a good career move if it comes at the expense of the Bill of Rights. One day, I hope we'll all be able to imagine executive-branch lawyers who err on the side of protecting liberty. And I hope an OLC lawyer declares, "The U.S. Constitution flatly forbids this sort of targeted killing."

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