• Requiem for the Obama Administration, Trump Edition

    December 7, 2016 // 78 Comments »

    obama_burns_constitution

    The problems many are now predicting under the Trump administration did not start on November 8. The near-unrestrained executive power claimed by the Obama administration will be transferred to the president-elect. Here’s what that means.


    Torture

    Obama did not prosecute, fire or discipline anyone for torturing people on behalf of the people of the United States. He did not hold any truth commissions, and ensured almost all of the government documents on the torture program remain classified. He did not prosecute the CIA official who willfully destroyed video tapes of the torture scenes. He has not specifically disavowed secret prisons and renditions, just suspended their use.

    As with the continued hunting down of Nazis some 70 years after their evil acts, the message that individual responsibility exists must stalk those who would do evil on behalf of a government. “I was only following orders” is not a defense against inhuman acts. The purpose of tracking down the guilty is less to punish and more to discourage the next person from doing evil; the purpose is to morally immunize a nation-state.

    Because of these failures President Trump can, as he has proposed, restart the torture program at any time. Some claim the CIA won’t participate. Some always will of course, and if not at CIA, then a contractor will be found. And if another terror attack or two take place, then people at CIA and elsewhere in government will be lining up to conduct the torture as they did last time. They know they will never be held accountable. Indeed, Trump is apparently considering the CIA official who destroyed the torture tapes, Jose Rodriguez, to head up the agency.


    Assassinations

    Obama legalized, formalized, and normalized drone assassinations on a global scale, including the killing of American citizens without due process in direct violation of the Fifth Amendment, on the president’s order alone. The only real restraint he codified is self-restraint. When you leave a door open, you never know who will walk in.

    Because of this President Trump can do the same thing. Trump is unlikely to blow up the entire world with the nuclear codes, but please do not act surprised when his choice of American citizen targets may not match up with yours.


    Guantanamo

    Obama never closed Guantanamo as he promised. He could have, simply by depopulating it regardless of what Congress might have said. In 2014 when Obama needed to trade five Taliban from Gitmo for U.S. Army soldier Bowe Bergdahl in Afghanistan, Obama simply ordered those Taliban freed. He could do the same with anyone else there. He could have applied the full pressure of the U.S. on various countries to accept freed prisoners. He could have ordered the show trials to be conclude.

    Obama did not do these things. He instead normalized indefinite detention as a policy of the United States, and alongside that, as with torture and drone assassinations, the use of secret, convoluted legal opinions to justify such executive powers.

    So if President Trump choses to start refilling the cells at Guantanamo, and reminding the world of the lengths a frightened America is willing to go to imprison a single man, it should not be a surprise. And with the “legal” opinions, including ones still secret, behind such policies, stopping Trump will require years of counter-litigation never even begun under the Obama administration.


    Espionage Act

    Obama prosecuted more federal whistleblowers as spies under the Espionage Act than all previous U.S. presidents combined. He sent to jail people who exposed torture, and people who allegedly leaked information to journalists showing American complicity in dangerous acts abroad. He had Chelsea Manning prosecuted for exposing war crimes in Iraq. He used the Espionage Act to destroy the lives of others who under any definition except his own would be considered political heroes.

    Obama and his Justice Department created the playbook for how to use the hereto obscure Espionage Act to do these things.

    So if President Trump, perhaps with an attorney general Rudy Giuliani, uses that playbook to lock up whistleblowers, journalists, and people you might call dissidents and political prisoners, remember to again look the other way.


    Freedom of Information Act (FOIA)

    The Obama administration set a record for redacting government files or outright denying access to them in fiscal year 2014 – some 77% of FOIA requests were redacted or denied outright. More than any previous administration, Obama took longer to turn over files, said more often it couldn’t find documents and refused a record number of times to turn over newsworthy files quickly absent lawsuits brought to force the government’s hand. In the case of Hillary Clinton, files considered “unclassified” in one context were redacted in whole in another.

    Though the backlog of unanswered requests grew by 55%, the administration cut the number of full-time FOIA employees by nine percent. Despite the critical nature of the documents, the State Department was allowed to do its FOIA screening of the Clinton emails largely with an ad hoc crew of retirees. The impact on journalists, and the right of the people to know, was immeasurable.

    So don’t be surprised if the Trump administration does not end up as the most transparent one ever.


    NSA

    Obama never realistically reigned in the NSA after the Bush-era Patriot Act allowed the agency to turn its surveillance tools on the Homeland. Absent a few cosmetic changes, NSA continues to gather the full spectrum of Americans’ communications in violation of the Fourth Amendment, abetted by the secret FISA court and vaguely Constitutional tools such as National Security Letters and parallel reconstruction. Information lives forever, and the NSA is building bigger data warehouses to keep storing it.

    President Trump will have that information about you at his disposal. And so all who bleated “they had nothing to hide and thus have nothing to fear” during the Obama (and Bush) administration, out of trust for a president or fear of terror, well, now you can join the rest of us who have been terrified for a very long time.



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    Police Want to 3D Print a Dead Man’s Fingers to Unlock His Phone

    October 22, 2016 // 24 Comments »

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    I’ll unpack the Constitutional issues in a bit, but first, the technology.


    Michigan State University professor who holds six U.S. patents for fingerprint recognition technology was asked by police to help catch a murderer. The cops scans of the victim’s fingerprints and thought that unlocking his phone might provide clues as to who killed him.

    The professor converted the fingerprint scans and 3D printed versions of all 10 digits. He then coated them with a micro-layer of metallic particles to mimic skin’s conductivity. The final 3D-printed fingers aren’t finished, but they’ll be ready for police to try out soon.


    The potential Constitutional issues here are an amazing challenge to the Fourth Amendment’s assurances against unwarranted search, and the Fifth’s protections against self-incrimination. They don’t apply to this current case, as the prints in question comes from a dead man, but…

    In in 2014 a judge controversially ruled that (living) suspects can be required to unlock a phone with a fingerprint. While the Fifth Amendment protects the right to avoid self-incrimination and makes it illegal to force someone to give out a passcode, biometric indicators like fingerprints are not covered by the Fifth Amendment, according to the ruling. So, if your phone or other device is protected with a fingerprint, the current law says cops can compel you to open it. If the phone is protected by a PIN number, the cops cannot compel you to open it.

    The judge’s logic is interesting. He wrote giving police a fingerprint is akin to providing a DNA or handwriting sample, or presumably an iris scan or facial recognition, which the law permits. A pass code, though, requires the defendant to divulge knowledge, which the law protects against.

    It is not hard to imagine a future court ruling that all a bunch of nonsense and (hopefully) declaring the police cannot compel you to unlock your phone for them. But of course the cops can fingerprint you, and can have those prints 3D reproduced, and might be able to open your phone that way. So is or is that not Constitutional?

    And cool: if the police already have your iris scan, facial data or prints on file, they don’t even need to bother to talk to you about any of this at some point.

    In the age of Snowden’s revelations, big data and all sorts of electronic spy gear we have yet to learn about or invent, has technology finally outrun the otherwise pretty good record of the Bill of Rights for keeping up with the times?


    BONUS: Protect your phone with a strong PIN at the minimum.



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    How Soon Before Armed Drones Are Overhead in America? Time Now.

    October 13, 2016 // 44 Comments »

    drone


    Protocols exist allowing the president to select American citizens, without a whit of due process, for drone killing.


    Only overseas, he says, but you can almost see the fingers crossed behind his back. Wouldn’t an awful lot of well-meaning Americans have supported an aerial drone killing in San Bernardino, or at the Pulse club in Orlando? Didn’t many support using a robot to blow up a suspect in Dallas?

    How soon before armed drones are over our heads?

    Time Now.


    North Dakota just legalized its police departments to equip drones with Tasers, tear gas and rubber bullets. The state legislature will push for the removal of the non-lethal force provision in 2017.

    House Bill 1328 went into effect August 1. The original piece of legislation sought to ensure police obtained a search warrant to use a drone to gather criminal evidence. However, when a lobbyist with police ties was allowed to amend the bill, it was rewritten to specify that drones could carry anything except (’til next year) weapons capable of lethal force.

    Of course plenty of people have died at the hands of police using so-called non-lethal weapons, Tasers in particular. But even if that is not a concern, just wait until 2017, when the police will be able to fly weaponized drones.

    Over America. Or is it: Over, America?



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    Suspect Held in Solitary for Seven Months for Forgetting Hard Drive Passwords

    May 4, 2016 // 4 Comments »

    rawls

    Innocent until proven guilty? Fifth Amendment rights against self-incrimination? Hah! Not if you forget your passwords, in Post-Constitutional America.


    Former Philadelphia Police Sergeant Francis Rawls, above, has spent the past seven months in solitary confinement without conviction because passwords he entered for investigators failed to decrypt his hard drives, seized in connection with a child porn investigation. Rawls says he’s forgotten the correct passwords and so can’t decrypt the drives and provide the cops with evidence that he possessed child porn.

    For “failure to cooperate with the investigation,” Rawls has been locked up. He spends 22 and a half hours a day in a cell.


    In addition to claiming he cannot remember the passwords, Rawls maintains he doesn’t have to unlock his computer because of his Fifth Amendment right not to incriminate himself. The idea is that the search warrant covered the physical hard drives, not any passwords. If Rawls were to give up the passwords involuntarily and the drives contained kiddie porn, he would have effectively been compelled to admit his guilt.

    Last year, following online surveillance, law enforcement agents raided Rawls’ home and seized two external hard drives and other computer gear. Rawls told officers he had “encryption on his computer” and refused to supply them with passwords. Investigators obtained an order compelling Rawls to turn over passwords. A new judge then found that order to be unconstitutional, writing Rawls “has properly invoked the Fifth Amendment privilege against self-incrimination when indicating that he would neither perform the act of decrypting the electronic devices, seized by the Commonwealth, nor provide the passwords to the Grand Jury for the electronic devices.”

    Following that judge’s ruling, investigators then went to federal court, where they used the 1789 All Writs Act — the same law the Department of Justice recently tried to use against Apple to try to force the company to unlock an iPhone — to compel Rawls to turn over his encryption keys.

    The judge ordered Rawls to be “remanded to the custody of the United States Marshals to be incarcerated until such time that he fully complies with the order to provide his encryption passwords to investigators.” In other words, the judge ordered Rawls locked up until he gave up. Built into the judge’s decision is the implication that Rawls is lying when he says he forgot the passwords.


    A federal court has previously ruled that compelled forfeiture of encryption passwords is unconstitutional: In 2012, the 11th Circuit Court reversed an order that would compel a suspect to give up his encryption passwords on drives investigators suspected contained child pornography.

    Rawls, pending his appeal, continues to be held in solitary confinement even though he hasn’t been charged with a crime.


    BONUS: I get that if Rawls is a pedophile he should be locked away. The thing is he has not been convicted of anything, and is simply invoking some of the most basic Constitutional rights available to Americans. And, as with free speech for people like the Nazis or the KKK, the real test of our commitment to those rights is not in the easy cases, but in the tough ones.


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    You Should Care About Apple, Your iPhone and the FBI

    March 8, 2016 // 9 Comments »

    spy

    Yep, you should care. Very much. Hang up the phone and listen.



    What This is All About

    The FBI wants Apple to help unlock an iPhone used by one of the attackers who killed 14 people in the December San Bernardino shooting. Specifically, the Bureau wants Apple to create new software that would override a security system on the phone designed to erase its contents after ten unsuccessful password tries. The new software would also eliminate the built-in pause required between tries.

    The software on the San Bernardino shooter’s phone, after ten tries, will automatically destroy any data on it as a security measure. The FBI needs that ten try limit, plus the required pauses between tries, taken away so that they can run a “brute force” attack against the password. A brute force attack runs an unlimited number of passwords (a1, a2, a3… aa1, aa2, aa3…) at high speed against the system until one works.

    Apple said no. The FBI took Apple to court, where it successfully argued an 1789 law that compelled cooperation with simple court orders applied to Apple’s encryption in 2016. Apple is appealing.



    What This is Really All About

    This is really all about encryption, and whether the U.S. government can force companies to bypass their own security systems on demand. It is about whether a tech company’s primary obligation is to provide secure products that protect the privacy of its customers (good and bad people), or to act as a tool of American law enforcement to strip away that privacy as the government requires.

    The battle is actually even more significant. Since the Ed Snowden revelations exposed the NSA spying on persons worldwide, including inside the United States, the Federal government has been demanding a “back door” into commercial encryption systems.

    Some simplified tech talk: encryption turns data from something that can be read into 23hd892k*&^43s. Two “keys” are needed; one to turn the data into unreadable text, and one to reverse the process. In the case of the iPhone, Apple holds the encrypting key, and the user the unencryption key, her password. A backdoor is a bit of computer code that would allow law enforcement to bypass that second key and read anyone’s data. That’s what the Feds want, as, per Snowden, some current, commercially available encryption may still be beyond the NSA’s ability to break, and some other encryption can only be broken slowly, with expensive computers.



    What This is Really, Really All About

    The fight isn’t over whether Apple can comply with the government’s request; technically it can. It’s whether it should.

    Efforts to force companies to create that desired back door have proven unsuccessful. Many tech companies resent that the NSA hacked into their systems whenever possible up until the Snowden revelations, and others fear a consumer backlash if they cooperate too broadly. Congress so far has been unable to pass laws compelling the creation of back doors. The FBI is so desperate that they even deleted “safety” advice they once issued recommending people do encrypt their phones.

    The San Bernardino shooter’s iPhone is seen by many as a test case.

    The request is technologically doable, the shooter is dead, fully without privacy and cannot countersue, a search warrant for the phone exists, the phone is physically in the FBI’s possession on U.S. soil and the circumstances are very much PR-friendly — the guy was a terrorist, and who knows, maybe the phone holds clues to prevent some future attack. You really can’t do better than that.

    Some 40% of Americans agree that Apple should unlock the phone. And just in case you still don’t get it, remember the government took the provocative step of asking the court to unseal the case, which would normally be secret by default.

    Apple is pushing back.

    The company filed a request to vacate response to the court order, claiming it violated the First and Fifth Amendments, and exceeded the powers granted to the government in the All Writs Act, that 1789 law. Facebook, Microsoft, Twitter and Google plan to file briefs supporting Apple’s position. Meanwhile, both the FBI and Apple want Congress to weigh in, and indeed the House Judiciary Committee will hold a hearing on encryption issues.

    It is very likely the case will reach the Supreme Court.



    The Broader Implications

    The case the Supreme Court will almost certainly hear is not about a single phone, but about creating a legal precedent for the United States government to demand whatever cooperation it needs from private companies with stockholder obligations to bypass security and encryption as it wishes; FBI director Comey stated the case will “be instructive for other courts” when interpreting how far third parties have to go in helping the government hack their products.

    In an op-ed, the New York Police Department Commissioner and his intelligence and counterterrorism chief admitted that what Apple has been asked to do will drive how the government demands tech companies provide access to secured devices in the future.

    Apple CEO Tim Cook said this “is, in our view, the software equivalent of cancer.” Indeed, the Justice Department is already seeking court orders for at least twelve other iPhones.



    Why You Should Care

    If Apple fails, the U.S. government will be able to read the contents of any electronic device in the U.S., regardless of encryption. The legal precedent will absolutely spill out past the iPhone to all other devices. For anyone who lives, travels or passes through America, this will touch you. In addition, phone, email and social media data passes through the U.S. from many parts of the world even if the users on both ends are outside the country.

    In addition, what would Apple’s (Google’s, et al) response be to a request from your favorite bad government? What if China were to require it hold a backdoor key as a condition for sales in the Mainland? What if your favorite bad government overtly decided to use that backdoor to “legally” gather proprietary data from your company, against journalists and dissidents, or to amass blackmail information on a colleague?

    A win for the government in the Apple case would also further stretch the applicability of the All Writs Act to ever more information inside the U.S., or held by companies with ties to the U.S. — medical records, for example.

    For investors, will knowing the U.S. and your favorite bad government now have access to a device help or hinder sales (Apple has already claimed compliance will “tarnish the Apple brand”)?

    And of course once backdoors exist, who, in the age of leaks (Snowden hacked the NSA itself), can assure that the knowledge will not end up your favorite set of wrong hands, say perhaps those Russian gangsters who are always sending you Spam emails?

    Bottom Line: everyone has something they wish to keep to themselves. The Apple case will significantly affect how possible that will be going forward.



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    It is Legal for Terrorists to Buy Guns in America

    November 25, 2015 // 16 Comments »

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    Serial idiot Lindsey Graham, among too many others, stated that if only more people in Paris had been armed, the tragedy would have been lessened.



    He echoed a popular right-wing meme in America, that “all it takes is a good guy with a gun to defeat a bad guy with a gun,” and that therefore any form of gun control in these United States would render us more vulnerable to attack.

    Such statements ignore multiple realities, one of which is that a bunch of would-be vigilantes would go to nightclubs and restaurants always armed, and that their blasting away inside a dark, crowded place in the midst of a panic would not kill more innocent people than the terrorists. Many people, for example, dramatically overestimate their own skills, never mind the accuracy of a handgun at distances of more than a few yards. Add in accidental shootings, deadly overreactions to things that are not threats, amateurs unsure who the bad guys are killing each other, stray rounds and that fact that many people in nightclubs and restaurants have had a drink or two, and you have a recipe for even more danger, not less.


    But before we even worry about that, let’s enjoy the hypocrisy of this: it is perfectly legal in the United States for person on the FBI terrorist watch list to purchase guns and explosives, and many of them do.

    Who in America other than terrorists cannot legally buy guns. That list includes felons, fugitives, drug addicts and domestic abusers. Fair enough.

    But not terrorists (unless they are also felons, fugitives, drug addicts or domestic abusers.) A report from the Government Accountability Office hilighted by the Washington Post says at least 2,043 known and suspected terrorists in the United States legally purchased firearms between 2004 and 2014.

    “Membership in a terrorist organization does not prohibit a person from possessing firearms or explosives under current federal law,” the Government Accountability Office concluded. This includes persons on the FBI’s consolidated terrorist watchlist. Note that records for 2011 and 2012 are incomplete “because of a programming error the FBI subsequently fixed,” according to the GAO. So no one really knows how many terror suspects legally bought guns over the last 11 years.


    A bipartisan bill offered this year (the “Denying Firearms and Explosives to Dangerous Terrorists Act of 2015”) is strongly opposed by the National Rifle Association (NRA). The NRA states the bill is “aimed primarily at law-abiding American gun owners,” and that the bill was “sponsored by gun control extremists.”

    Yes, yes, there are ways to purchase guns illegally on the street, and legally at gun shows, that bypass background checks and any other controls, so any would-be terrorists can still pick up some semi-automatic iron as needed.

    At the same time, however, that our First, Fourth, and Fifth Amendment rights are being stripped away in the name of freedom and security, perhaps it is worth also taking another look at what might be done with the Second Amendment at the same time.




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    House Passes Law to Revoke Passports of Americans Affiliated with Terror Organizations

    August 3, 2015 // 16 Comments »

    passport revoked


    The House of Representatives quietly passed a bill at the end of July allowing the State Department to revoke or deny passports to Americans with connections to “foreign terrorist organizations.”

    The measure, which passed by a voice vote after only a 15-minute debate, in theory aims to prevent “lone wolves” from traveling abroad to join a terror organization, or, if their passports are revoked while they are abroad, from returning to the United States.

    “The Benedict Arnold traitors who have turned against America and joined the ranks of the terrorist army ISIS should lose all rights afforded to our citizens,” Ted Poe (R-Texas), the bill’s sponsor, said. “These people are not returning to America to open coffee shops, they are coming back to kill. We must stop them from coming back at all.”

    The full text of the three-page bill is quite open-ended as to how this process will work, stating the criteria only as “aided, assisted, abetted, or otherwise helped an organization the Secretary of State has designated as a foreign terrorist organization.”

    The travel restriction requires no presumption of innocence for the targeted individual, no explanation, no public presentation of evidence, no opportunity for a defense, no checks and balances on the power. The bill does not outline any appeals or other forms of due process for the target. The only stipulation is that the Secretary of State report the action to the Senate Committee on Foreign Relations and the House Committee on Foreign Affairs in either classified or unclassified form. Senate approval is required for the new bill to become law.


    The Bill represents another step for a government that increasingly seeks to control its citizens by arbitrary standards (see the No-Fly list). But the bill is evolutionary, not revolutionary.

    The Government of the United States has had for some time the ability to take away passports from American Citizens because “The Secretary of State determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.” That sliver of law means if the government feels it is against its interest for you to have a passport and thus the freedom to travel, to depart the United States if you wish to, it will just take it away. The law allows them to do this prospectively, the “or are likely to cause…” part of the law, meaning you don’t need to have done anything. The government just needs to decide that you might.

    The last public use of this law was in 2011, when prior to having him and his 16-year-old son away blown away via drone, Secretary of State Hillary Clinton secretly revoked the passport of Anwar al-Awlaki, al Qaeda propagandist and U.S. Citizen.


    I have been unable to track down other recent public examples where the U.S. Government revoked the passport of an American simply because his/her presence abroad bothered – or might bother – the Secretary of State. In fact, the only example I was able to locate was that of infamous ex-CIA officer Philip Agee, who in the 1970’s exposed CIA officers identities. It was Agee’s case that prompted a Supreme Court review of the Department of State’s ability to revoke passports simply because the government didn’t want you to travel abroad (the Supreme’s upheld the government’s ability to do so based on a 1926 law after lower courts said no.

    The Court stated “The right to hold a passport is subordinate to national security and foreign policy considerations.”



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    Wesley Clark Calls for Internment Camps for ‘Radicalized’ Americans

    July 23, 2015 // 8 Comments »

    General-Wesley-Clark

    Retired general and former Democratic presidential candidate Wesley Clark on Friday called for World War II-style internment camps to be revived for “disloyal Americans.”


    In an interview on MSNBC in the wake of the mass shooting in Chattanooga, Clark said that during World War II, “if someone supported Nazi Germany at the expense of the United States, we didn’t say that was freedom of speech, we put him in a camp, they were prisoners of war.”

    (During WWII, the United States detained over 11,000 ethnic Germans in the U.S. The government examined the cases under the Alien and Sedition Acts individually in a form of limited due process, and detained relatively few in internment camps. However, over 120,000 Japanese-Americans were sent off to camps without any form of due process. Most Americans consider these actions along the most shameful abuse of government power and civil rights since the abolition of slavery. The United States continues to pay reparations to those interned.)

    Clark called for a revival of internment camps to help combat Muslim extremism, saying, “If these people are radicalized and they don’t support the United States and they are disloyal to the United States as a matter of principle, fine. It’s their right and it’s our right and obligation to segregate them from the normal community for the duration of the conflict.”

    (It is unclear what “conflict” Clark is referring to, but we can assume it is the undeclared war on an idea, terrorism. Terrorism has existed roughly since the beginning of civilization, so the duration of any conflict against it seems open-ended.)

    Clark’s proposal appears to be based on the concept of targeting people for government scrutiny who are not “radicalized,” whatever that means, but who the government, or perhaps just Clark by himself, decides may become radicalized at some unspecified future date.

    “We have got to identify the people who are most likely to be radicalized. We’ve got to cut this off at the beginning,” Clark said. “I do think on a national policy level we need to look at what self-radicalization means because we are at war with this group of terrorists.”

    For those keeping score, Clark’s proposal would violate, at a minimum, the rights to free speech, due process and habeas corpus, and cruel and unusual punishment, all the while setting a precedent for “thought crime” in the United States.

    Here’s the interview. Please note how the MSNBC drone interviewer does not challenge Clark in any way:




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    Cops Slam Pregnant Black Woman to Ground, Let White Woman go Free

    May 30, 2015 // 10 Comments »

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    The cops admit there had been no crime committed. They arrived at the scene to discover two women, one white and one black, unhappy over some minor parking lot thing at their children’s elementary school.

    Everyone admitted no damage had been done to either car. The women had already separated themselves, and neither had committed or threatened any violence.

    There was nothing to see or do, and in fact no reason for the cops to even be there.

    Yet within minutes (the action begins around 4:40 into the video, below) the scene involved two cops throwing the pregnant black woman, Charlena Michelle Cooks, to the ground, cuffing her and arresting her for resisting arrest. All because she did not identify herself quick enough for the cops. FYI: the cops did not ask the white woman for ID in the video.

    Nonetheless, officials with the city of Barstow, California insisted officers had acted properly when they used force to arrest a pregnant woman who refused to show them her identification, even though the charges were later dismissed.

    “I actually do have the right to ask you for your name,” the officer replies.

    “Let me make sure,” Cooks says as she makes a phone call to someone.

    The officer says he will give Cooks two minutes to verify his right to ask for her identification. But less than 20 seconds later, the officer and a colleague are performing a painful wristlock takedown on Cooks. The pregnant woman screams as she is forced belly first into the ground.

    American Civil Liberties Union attorney Adrienna Wong pointed out that Cooks had a right to refuse to show her ID.

    “Even if an officer is conducting an investigation, in California, unlike some other states, he can’t just require a person to provide ID for no reason. Officers in California should not be using the obstruction law, Penal Code 148, to arrest someone for failing to provide ID, when they can’t find any other reason to arrest them,” Wong added.

    “Imagine getting wrestled to the ground and handcuffed in front of your child’s elementary school,” another ACLU attorney remarked. “Imagine interacting with other parents afterwards. Imagine what kids who saw the incident tell your child. And if you think the whole incident happened because of your race, how does that impact your view of police?”

    To make matters worse, Cooks was banned from her daughter’s school until the charges were dismissed.

    In a separate settlement with the ACLU prior to the Cooks incident, the City of Barstow had already agreed to provide training to its officers after two brothers were arrested for refusing to provide identification. Charges against the brothers were dropped and the city agreed to pay $30,000 in damages.






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    What to Do if You Think You’re on the No-Fly List

    April 25, 2015 // 10 Comments »

    It has come to this. There is a self-help guides from the ACLU on what to do if you think you are on the U.S. government’s no-fly list. Oh, and the TSA says 99 percent of the people who contact them about no-fly have been denied boarding only because their names are similar to a real bad guy. In most applications, a 99 percent failure rate is cause for alarm for an organization. In America, it is cause for alarm for us.

    Background

    On September 10, 2001, there wasn’t any formal no-fly list, though the FBI held a folder of 16 names of suspicious flyers. Among the many changes pressed on a scared population starting September 12 was the creation of two lists: the no-fly list and the selectee list. The latter was for person who would undergo additional scrutiny when they sought to fly. The former, like its name, meant if your name was on the list you simply could not board a flight inside the U.S., out of the U.S. or from some other country into the U.S.

    The flight ban can also extend far outside of America’s borders. The no-fly list is shared with 22 other countries.

    Names are nominated for no-fly or selectee by one of perhaps hundreds of thousands of government officials: an FBI agent, a CIA analyst, a State Department visa officer and so forth. Each nominating agency has its own criteria, standards and approval processes, some strict, some pretty sloppy. Your name may end up on the list based on scraps of online postings or as the result of a multi-year detailed investigation or because of a bureaucratic typo. The nominated name is sent to The Terrorist Screening Center (TSC), located in a classified location in suburban Northern Virginia. TSC is a multi-agency organization administered by the FBI, staffed by officials from the Department of Homeland Security, the Department of State, and all of the intel community.

    A key issue is that people are never notified they are on the no-fly list. The only way to even get a hint is to buy an airplane ticket and be prevented from boarding once you arrive at the airport after at check-in the airline receives a “no-fly” message. Through the interrogation process you may (or you may not) learn you might live in the list. You will never have any idea why you are on the list; maybe you share a similar name with some real or imagined bad guy. Still on the list? The only way to tell is to buy another ticket and see if you can board. Repeat.

    What Do You Do?

    For the most part, once denied boarding, you are on your own to get home. It is a long walk home from L.A. if you live in New York. But, in the topsy-turvy post-9/11 world, though the U.S. will not let you on an airplane (Twin Towers!) you can, for now, as a suspected terrorist, travel by ship, train, bus, rental car, horseback, donkey cart, unicycle or other means. Of course none of those conveyances have even rudimentary screening or security.

    One option if you find yourself denied boarding is to contact the Transportation Security Administration (TSA) via their TRIP Program and ask them to remove your name from the no-fly list. You might succeed just by asking nice; the TSA itself says that 99 percent of individuals who apply for redress are not on the terrorist watchlist, but are misidentified as people who are. To start, you simply use DHS’ online form. They strongly encourage an online submission, warning on their web site that “if documents are mailed, it may take 10-15 business days to receive your submission due to federal government mail screening requirements,” something left over from the very small and long ago anthrax powder letters mailed to a handful of people in 2001. Careful though– proving you are not a terrorist must be done in a 10 meg attachment or less or DHS will reject your request.

    If DHS agrees you are not a terrorist, you get a redress number which you can use when booking a ticket. There is never an explanation, and DHS is not allowed to tell you you are still on the no-fly list, or ever were, or why they did or did not issue you a redress number. If you never hear back from DHS and wonder if you are allowed to fly, the only way to tell is to buy another ticket and see if you can board. Repeat. Even with a redress number, DHS advises arriving at the airport extra early in anticipation of extra screening and questioning.

    What If You Stranded Overseas?

    One popular trick the government likes to occasionally use is to wait for someone to depart the U.S., then slap him/her on the no-fly. The traveler, stuck abroad, clearly has fewer resources to challenge anything or file internet forms and wait by the post box.

    A nice scheme, but since U.S. citizens have a right under the Fourteenth Amendment of the Constitution to return to U.S. territory after traveling abroad, and lawful permanent residents (“green-card holders”) have a similar right to return under the Immigration and Nationality Act, in fact such a move by DHS is essentially unconstitutional and/or illegal.

    So, as one part of the government says you are a terrorist and cannot fly to America, another part of the government is constitutionally obligated to get you back to America. Denied boarding overseas due to the no-fly? Someone in the U.S. (can be a lawyer) must call the State Department and ask that they help you. The ACLU has a handy cheat-sheet with all the details. At some point you will visit the American Embassy in your country of no-fly exile, and, after an average two week delay, re-book your ticket to return to the United States. The cost of all this is on you, and you can expect a detailed welcome from the FBI and others when you touch down in the Homeland. Coming “home” may then mean your mom’s place in Cleveland, or it can mean a jail cell near the airport in Cleveland.

    Bad Guys?

    We’ll admit that there probably are some really bad people out there who’d we would just prefer not sitting next to us on a flight. But who ends up on the no-fly instead?

    The Associated Press reported in 2012 that the federal no-fly list had “more than doubled in the past year” and had grown to about 21,000 people, including some 500 Americans. CBS’ news show, 60 Minutes, states the no-fly list actually has 44,000 names on it. A CBS reporter claims to have seen a portion of the names on no-fly in 2007, and noted Saddam Hussein was on the list, as well as 14 of the 19 September 11th hijackers, all of whom were very dead at the time. Osama bin Laden was also on the list on the off-chance he would have decided to fly to the U.S. under his real name for some reason.

    Represented by the American Civil Liberties Union, a group of thirteen Americans who were barred from boarding domestic flights or planes leaving or bound for the U.S. between June 2009 and November 2012 is suing. One of the plaintiffs in that case is Army veteran Raymond Earl Knaeble, who found himself unable to fly coincidentally after converting to Islam. Four others in the no-fly lawsuit are also military veterans. One was forced to return to the U.S. from Columbia by bus, a long and dangerous trip. Another plaintiff was placed on the list only after he flew from California to the U.S. Virgin Islands. He was forced to take a five-day boat trip and a four-day train ride home.

    How Can This Be Legal?

    Like much of the (known) legislation passed after 9/11, it has been very hard to challenge the no-fly in courts. One significant issue is standing, the right to sue. Persons typically never know for certain they are on the no-fly list, the government will never confirm or deny someone is on the list, and so, absent proof, one may not be able to sue the government. The government has and likely will also continue to cite national security and classified information to block cases from even entering the court system.

    In the lawsuit noted above, the ACLU is arguing that the no-fly list is a violation of the due process clause of the Fifth Amendment. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The meaning is that all levels of American government must operate within the law and provide fair procedures. For example, you cannot be arrested and tried without having legal counsel, being informed of the charges, having the chance to review the evidence against you and so forth. Creating a secret list without any clear means of challenging placement on that list, is, the ACLU contends, unconstitutional.

    The government argues in return that national security prevents a more open system– we can’t tip off the terrorists– and that limited judicial review covers any due process requirement. No-fly list appeals may ultimately go to a federal appellate court, but that court makes decisions based only on government input. The person affected is not even present and will never know what evidence the government presented against him in this secret court.

    The ACLU’s case against the no-fly list is currently being heard in U.S. District Court, in front of a judge who at least appears to be asking serious questions of the government, and who has stated she holds not being able to fly is indeed a case of the government depriving someone of their “liberty,” as stated in the Fifth Amendment. The outcome of the case is of course uncertain, and will no doubt be appealed as far as it can go.

    Until then Americans, happy travels!



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    Family Settles Suit with City for $3.9m After Cop Walks Free in Shooting

    February 21, 2015 // 5 Comments »

    kid


    In case you’re in a hurry, here’s the express version of this story:

    — African-American teen killed by a white cop;
    — Grand jury won’t indict, cop walks free;
    — Family wins wrongful death lawsuit;
    — Taxpayers lay out $3.9 million to pay for their killer cops on the loose.

    Read, repeat.


    And now, the details.

    The family of slain Bronx teen Ramarley Graham accepted $3.9 million in taxpayer money from the city to settle their wrongful death lawsuit.

    Police had claimed that Graham was suspected of purchasing an amount of marijuana small enough that its possession is now decriminalized in New York.

    Cops chased him into his home without a warrant. The cop who shot the teen, Officer Richard Haste, claimed that he had heard over the police radio that Graham was armed. No gun was found.

    After Graham was gunned down in his own bathroom, the cops threatened to shoot his grieving grandmother, according to the suit.

    “Why did you shoot him? Why you killed him?” the grandmother allegedly asked the officer who had just fired a fatal bullet into her grandson’s chest.

    “Get the f*ck away before I have to shoot you, too,” the suit said Haste shouted after pushing the 58-year-old grandmother backward.

    The elderly woman was detained at the local precinct for seven hours and forced to give a statement against her will.

    Officer Richard Haste, who fired the fatal shot, was initially indicted for manslaughter, but a judge threw out the case on a legal technicality.

    A second grand jury declined to indict the cop.

    “This was a tragic case,” said a spokesman for New York City.

    An ongoing federal investigation into possible civil rights violations by the NYPD moves into the third year since the killing. The lawsuit itself took two years after the teen’s death to reach settlement.


    As best I can tell Officer Haste, below, is still patrolling the streets as I write this.




    Read, repeat.

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    Seattle Police Jail Elderly Military Veteran for Walking with a Golf Club

    February 16, 2015 // 6 Comments »

    seattle

    Examples of police abuse of power are not hard to locate, typically involving deadly force where none is needed.

    Many of these examples appear to involve racism, white cops misusing their authority over African-Americans. Examples are often dismissed by police supporters over some ambiguity or another. What makes the following example so compelling is not the extremes of violence (none take place) but the clarity of the power dynamic, and the clarity of how easy it is for cops to misuse the power granted to them.



    Arrested for Having a Golf Club

    We learn that 70-year-old Air Force veteran (twenty years of service) and retired Seattle bus driver William Wingate had a daily habit of walking and using a golf club like a cane. He typically took a walk to pick a newspaper. Wingate was not unknown in the neighborhood. He had no arrest record. He was not using drugs. He wasn’t even wearing a hoodie. The day was sunny and clear, the video in focus and the audio clear.

    But Seattle Police Department (SPD) officer Cynthia Whitlatch pulled over her patrol car, got out, and yelled at Wingate to drop his golf club. The incident was caught on her vehicle’s dash-cam video recording system. Unlike some recorded incidents, where what happened before the encounter was not recorded, in this case we have a full 1:40 on tape of nothing happening.

    Officer Whitlatch insists that the recording instead would show Wingate swinging his golf club at her and hitting a stop sign with it. According to the Seattle Police Department, there exists no video to back up this claim.

    Nonetheless, Whitlatch, standing behind her car, shouts at Wingate to drop his golf club 17 times, and claims that “it is a weapon.”

    “You just swung that golf club at me,” Whitlatch yells.

    “No, I did not!” exclaims Wingate.

    “Right back there,” Whitlatch says back. “It was on audio and video tape.”


    The Video

    (The action begins at 1:40 on the video, but the fact that nothing happens prior to that is important to understanding how wrong this all is)

    If you don’t see the embedded video, it is also online here.



    Welcome to the Judicial System

    Eventually, she tells him he’s going to be arrested and charged with obstruction. She calls for backup. A second officer arrives and Wingate promptly hands over the golf club. Nonetheless, the officers went on to handcuff him. Police walked him down the street to the East Precinct, where the desk sergeant approved the decision to book Wingate into jail on harassment and obstruction charges.

    While still handcuffed, Wingate had difficulty stepping up and into the back of the paddy wagon. On video, an officer can be seen sliding a stool toward the back of the vehicle, using his foot. Wingate spent the night in jail.

    The next day, city prosecutors filed misdemeanor charges of unlawful use of a weapon against Wingate based solely on the arresting officer’s incident report. In that report, the officer stated she was “fearful of being assaulted by him.”

    Wingate agreed to a plea agreement after being told by a public defender “If you sign this stipulated order of continuance, it will all be over, basically.”

    Finally, a rational head entered the story. Two months after the arrest a municipal judge dismissed the case following public outcry that attracted both social media and a private lawyer.

    Maybe It Was All Just a Mistake?

    So maybe Officer Whitlatch just made a mistake. You know, pressure of the moment. Maybe on a bright sunny day she thought she saw an elderly African-American man swing a golf club at her, when no such thing happened. Maybe. But, as prosecutors say when they bring up a suspect’s past history in court, let’s look at the record.

    Officer Whitlatch was one of 126 police officers who sued the government last year, at both the federal and city level, to block the Department of Justice–ordered use of force policies. The SPD is under a federal consent decree and is being forced to address the DOJ’s concerns over racial bias and its finding that Seattle police routinely and unconstitutionally use excessive force. Officer Whitlatch and the others claimed in their suit that the new policy will result in citizens and officers being “killed.” They said the regulations require cops to “under-react to threats of harm until we have no choice but to overreact.”

    Whitlatch’s ex-girlfriend, who claims she spoke up because both she and her father were police officers, claims Whitlatch made racist comments about black people she’d encountered while on patrol and, in the spring of 2005, stole marijuana from police evidence that the couple then smoked together.

    About one month after she arrested Wingate for his golf club, Officer Whitlatch took to Facebook to share some thoughts. While protests raged in Ferguson, Missouri over the police shooting death of African-American Michael Brown, Whitlatch wrote she was tired of “black peoples paranoia” and wrote of “chronic black racism that far exceeds any white racism in this country.”

    The Next Steps

    The next part is as predictable as day following night.

    — Officer Whitlatch remains employed by the police department, albeit on desk duty. Whitlatch was not disciplined. She received counseling from her supervisor, a course of action that the department believes to be “an appropriate resolution.”

    — The Seattle Police Department insists racial bias played no role in the incident.

    — Wingate is suing the city for $750,000 claiming violations of his civil rights. Should he prevail, the taxpayers will foot the bill for the settlement.




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    Man Held 20 Hours for Asking to File TSA Complaint

    February 13, 2015 // 10 Comments »

    vanderklok_600


    Here’s a flash in the dark peek at justice in America, all in the name of keeping us safe from terrorism by using the tools of law enforcement to terrorize us.

    If that’s not the case, then why is Charles Kieser still employed by the TSA?



    The Terrorist

    Random American Citizen Roger Vanderklok (aka “Josef K.“) had the misfortune of going through TSA Supervisor Charles Kieser’s security-screening area. Vanderklok, 57, pictured with his wife, is a Philadelphia architect who runs half-marathons. He flies around the country for weekend races.

    The TSA said it was concerned about the gear in his carry-on bag, and pulled him out of line. The items of concern turned out to be only a running watch and some Power Bars, wrapped in a small PVC pipe for protection against crushing. Nonetheless, for the next 30 minutes, screeners checked and rechecked the bag. They found nothing dangerous. Vanderklok protested that he was no threat, and that the items were of no danger to anyone, and insisted on making a complaint.

    Electronics and “organic mass” can be used to make bombs, TSA Supervisor Charles Kieser said in response to Vanderlok’s complaint. “The passenger made a bomb threat to me,” Kieser testified later according to a court transcript. “He said ‘I’ll bring a bomb through here any day that I want… and you’ll never find it.'”

    The Stormtroopers

    Kieser did not evacuate the area or follow TSA protocol to contact the FBI, as required in the face of a bomb threat. Instead, he just summoned the Philadelphia Police. Vanderklok was taken to an airport holding cell, and his personal belongings, including his phone, were confiscated while police “investigated” him. Vanderklok was detained for three hours in the holding cell, missing his plane. He was not questioned. Instead, after waiting the three hours, he was handcuffed, taken to a downtown police station and placed in another cell. He says that no one, not the police officers at the airport nor the detectives downtown, told him why he was there. He didn’t find out until he was arraigned at 2 a.m. that he was being charged with “threatening the placement of a bomb” and making “terroristic threats.” Despite all that threat stuff, he was released on bail. His wife, worried about not hearing from her husband, was never notified of his arrest until Vanderklok was allowed to phone her for bail money.

    The Trial

    When Vanderklok finally had his case brought to court, the charges were quickly dismissed. A review of airport surveillance videos showed that TSA Supervisor Kieser simply made everything up. Vanderklok made no threats. The security video shows him standing calmly with his arms in front of him holding a laptop. Prosecutors called no witnesses against Vanderklok except TSA Supervisor Kieser.

    As you may have guessed, Vanderklok has now filed a civil suit against the TSA, the Philadelphia Police Department and the Department of Homeland Security, alleging that he was willfully deprived of his liberty, and his Fifth Amendment rights were violated, by the false statements made against him. Kieser remains employed by the TSA. No charges have been filed against him for what appears to have been outright perjury in his court testimony.

    Homeland Security has made no public comment, citing the pending lawsuit. Taxpayers will of course be on the hook for any settlement coming out of the lawsuit.

    BONUS: Taxpayers, on behalf of Philadelphia Airport TSA, recently paid out a $25,000 settlement over detaining a college student for possessing Arabic language flashcards.




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    Questions from Ferguson

    November 25, 2014 // 8 Comments »

    photos_of_Darren_Wilson



    I woke up this morning with the worst kind of hangover: anger, confusion, wondering what happened last night. Without a drop of alcohol to explain how I felt. So here are some of the questions I have about Michael Brown, Darren Wilson and Ferguson.


    Why was the Announcement Made as it Was?

    The grand jury made its decision no later than early afternoon on Monday. Why was the announcement held until 9pm EST? That put the announcement at the end of hours of tension allowed to build, after dark, and suspiciously smack in TV prime time. There was nothing more to “get ready” on the streets except to allow crowds to gather and frustration to ramp up. Why not make the announcement as soon as a decision was rendered? Why not hold it until say 7am Tuesday morning when people were asleep and not yet gathered? In daytime? Wouldn’t those actions have reduced somewhat the potential for violence?


    Why was the prosecutor, Robert McCulloch, Seemingly Smirking?

    Why was the prosecutor, Robert McCulloch, whose very title implies his task before a grand jury, seemingly so pleased with the result? Throughout his press conference, he went out of his way to chastise the media and mock discrepancies among the witnesses to Brown’s shooting. This was unprofessional at the very minimum, and did nothing to calm tensions or create the impression of a fair process.

    Every attorney knows that in any situation witnesses will disagree with one another. The shooting occurred within seconds, and each witness saw it from a different location, so of course statements will vary. And indeed it is possible in any criminal situation that some witnesses may lie. McCulloch essentially treated this as some sort of unique facet of the Brown case. He kept referring to the significant gaps between the physical evidence and witness statements, yet the key thing, what initially happened between Michael Brown and Darren Wilson at the window of the police car, was by its nature not able to be supported or refuted by any physical evidence (What was said? Who acted first? At what point did Wilson shoot?)


    Why was the Physical Evidence of Wilson’s Injury Not Seen as More Significant?

    A key element of showing Darren Wilson was justified in his use of deadly force was the claim that Michael Brown punched/attacked him in his police cruiser, causing Wilson to fear for his life and fire his weapon. The law governing this states “An officer may use lethal force only when the officer reasonably believes that the action is in defense of human life, including the officer’s own life.” To a casual observer, the injuries Wilson sustained, which appear to be minor bruises, do not support the criteria necessary to have fired the first shots or Wilson’s statements that his life was in danger. It was the action at the door of the police car precipitated everything that followed.

    Wilson’s injuries were testified to on page 25 of the transcript. The questions appear only to describe for the record what was evident in the hospital photos, nothing more.


    Given McCulloch’s Personal History, Which Creates the Appearance of Bias, Why did He Handle the Case?

    Everyone knew the Brown killing was among the most controversial and sensitive cases Missouri had seen for a long time. Given the racial tensions and violence that both happened and were worried to happen, avoiding even the appearance of bias seemed a key element in helping tamp down concerns that the issue was treated unjustly. So why was McCulloch allowed to shepherd the case?

    McCulloch has a tragic, close, familial connection to violence. In 1964 his father, a police officer, was shot and killed by an African-American man in a public housing complex. In 2000 McCulloch controversially declined to bring charges against two detectives accused of excessive force in the killing of two unarmed black men, who died after 20 shots were fired into their car by police.

    McCulloch made questionable statements in August as protests unfolded in Ferguson. He criticized Missouri Governor Nixon for replacing St. Louis County police control of the Ferguson protests with officers and leadership from the Missouri State Highway Patrol. “It’s shameful what he did today, he had no legal authority to do that,” McCulloch said at the time. “To denigrate the men and women of the county police department is shameful.” He also praised police: “The abuse that they took on that line was incredible,” he said, in reference to the SWAT and riot teams on call in Ferguson in the early days of the protests. “The use of force, while they were doing it under the circumstances, I don’t think was excessive,” he said.

    A formal accusation of bias towards the police on the part of McCulloch is impossible to demonstrate. The appearance of bias is impossible to ignore. Given the controversy and sensitivity of the Brown killing, was there not anyone else in the state of Missouri who could have prosecuted the case? Why didn’t the governor appoint a special prosecutor as he was able to do?


    Why Did the Grand Jury Take it Upon Themselves to Sort Out the Witnesses Conclusively?

    The point of a grand jury is only to determine if probable cause of a crime, a very low legal hurdle, exists. If it does, they return an indictment and the case goes to trial for resolution. There, in open court with all sides publicly testifying, a jury selected for the specific case goes through all the evidence, and decides which witnesses to believe and which to discard. Cross-examination occurs, particularly of critical witnesses such as Darren Wilson.

    The most significant elements of the case could only be accounted for by Wilson, or Brown. One is dead, and one is fighting for his life. The latter point is often a critical one in a criminal trial and a defendant’s statements exonerating themselves are often looked at very closely. One of the key points of even having a trial is for the trial jury to sort out conflicting evidence; absent a confession, every criminal case has some sort of conflicting evidence.

    It appears that the grand jury took it upon itself not just to decide if probable cause existed, but to try Darren Wilson in secret, without the checks and balances of an open trial.


    What was Said by Prosecutors in Front of the Grand Jury?

    Did prosecutors actually ask for the grand jury to indict? If they did not believe the evidence supported an indictment, why did they take the case to the grand jury instead of dismissing the charges themselves as if normal procedure? It is clear that prosecutors went to great efforts to challenge the credibility of outside witnesses, going as far as labeling some as making up their stories to match publicly-available details.

    Were the same standards applied to the ultimate witness, Darren Wilson? Were his conclusive statements, which some could consider to be self-serving, aggressively challenged? If they were, exposing that would help to calm tensions.

    Wilson’s grand jury testimony is here; it does not appear to contain challenging questioning, but have a look yourself.

    The key element in determining whether Wilson was justified in shooting was the the question of whether Wilson thought his own life was in mortal danger. Wilson made the following statements to the grand jury; were they seen by the jury as unbiased or self-serving, or simply truthful?

    Brown had the “crazy” look of a “demon… It looked like he was almost bulking up to run through the shots, like it was making him mad that I’m shooting at him,” Wilson told the grand jury

    Wilson described Brown as “very aggressive” and was convinced the teen was “gonna kill me.” “It was just like intense,” the officer said. “I’ve never seen anybody look that, for lack of a better word, crazy.”

    Wilson also stated: “He turned, looked at me, made like a grunting noise and had the most intense aggressive face I’ve ever seen on a person.”

    Wilson was a veteran cop. Did anyone challenge his assertion, after years on the streets, that 18-year-old Michael Brown did indeed display the “most intense aggressive face I’ve ever seen on a person.”

    By the way, Brown, according to Wilson on page 225 of the transcript, only made that aggressive face after Wilson shot him the first time.


    So is This Over?

    This one we pretty much know the answer to. With the grand jury’s decision, Darren Wilson will not be criminally charged for killing Michael Brown by the state of Missouri.

    The Federal Department of Justice can charge Wilson with violating Brown’s civil rights, under the Fifth Amendment of the Bill of Rights, for “depriving him of his life.” Civil rights investigations can drag on for years. The Justice Department’s civil rights investigation into George Zimmerman, the neighborhood watch volunteer who fatally shot unarmed 17-year-old Trayvon Martin in Sanford, Florida, is still active after two years with no results expected, well, for a long time.



    More to Come

    I am not a lawyer, and in the short time since the grand jury’s announcement have obviously not yet waded through all 70 hours of testimony and thousands of pages of written documentation, so it is possible that answers to some of these questions may already exist. I hope so, but I worry they don’t.

    What happened in Ferguson matters to us all as Americans. Are we doomed to remain a nation hopelessly, violently adrift in a swamp of racism? Do we have a justice system that is indeed just? Can everyone expect to receive fair treatment in our system, from the moment police confront an alleged criminal to the moment some sort of final decision is reached? Do our police forces exist to “protect and serve,” or does that only apply to some groups of Americans, while for others the police are deadly enemies?

    Without any disrespect, Michael Browns’ come and go. There have been young black men killed under dubious circumstances by the police before Brown, and God help us, there will be more killed under dubious circumstances by the police after Brown.

    Until the real questions of Ferguson are answered, we will do this over and over and over again.



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    Is Forced Quarantine for Ebola Legal?

    October 27, 2014 // 1 Comment »




    New York and New Jersey this week instituted mandatory confinement for certain people exposed to ebola. Illinois announced its own mandatory quarantine, and Florida has instituted a home-quarantine version.

    Is it legal for a state (or the federal) government to detain and quarantine you against your will for health reasons? Yes. Has this sort of thing been done before? Yes. Will it be effective? No. Is it just a political ploy to garner votes from a panicked public? Oh my yes.



    Is it legal for a state (or the federal) government to detain and quarantine you against your will for health reasons?

    Yes. The federal government derives its authority for isolation and quarantine from the Commerce Clause of the Constitution. Under the Public Health Service Act, the Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases.

    The authority for carrying out these measures is been delegated to the Centers for Disease Control and Prevention (CDC). Under 42 Code of Federal Regulations parts 70 and 71, CDC is authorized to apprehend, detain, and examine people arriving to the United States and traveling between states who are suspected of carrying communicable diseases.

    Though the paranoid-a-sphere rediscovers these provisions on a regular basis and makes much of them, the basic idea of the government forcibly quarantining people for the sake of public health goes back into the 19th century.

    That said, the power to detain and quarantine often is left to the states, and both New York and New Jersey law provide for it. New York allows the decision to be challenged in a magistrate court; New Jersey does not have a similar law, though technically any form of detention can be broadly challenged under habeas corpus. But good luck with that– the Florida Supreme Court laid down the precedent in saying “The constitutional guarantees of life, liberty and property, of which a person cannot be deprived without due process of law, do not limit the exercise of the police power of the State to preserve the public health so long as that power is reasonably and fairly exercised and not abused.”



    Has this sort of thing been done before?

    Yes. The Florida precedent case cited above dealt with forced quarantine of a tuberculous patient in 1952.

    Just recently in Dallas, Texas, after her boyfriend was diagnosed as the first ebola case in the United States, Louise Troh and her family were asked not to leave their home. When Troh tried to leave anyway, a Dallas judge issued a confinement order, forcing a quarantine on Troh and her family. Police stationed outside of the family’s home enforced the order.

    In 2007, a 27-year-old man was forcibly placed in a Phoenix hospital ward reserved for sick prisoners. The man suffered from a deadly strain of tuberculosis known as XDR-TB. Doctors say he is virtually untreatable. He has been forced to live in a hospital cell in complete isolation.

    Though never implemented, in 1985 at the height of the HIV/AIDS epidemic, a majority of Americans favored quarantine of patients, with 48 percent approving of identity cards for those who tested HIV-positive, and 15 percent of Americans even supporting tattooing those with AIDS to mark them as “dangerous.”

    Further back in America’s history are multiple examples of forced quarantine, including Hawaiian leper colonies, and the isolated TB wards and Ellis Island medical isolations of the 19th century.

    The record is not pretty, but the record exists.



    Will it be effective for ebola?

    No. The New York and New Jersey quarantine laws at present only apply to a) health care workers b) returning from African “hot zone” countries through c) only two airports, JFK and Newark who d) had contact with ebola. That’s a very select group, chosen largely because New York’s sole ebola patient fit that exact profile. Persons such as regular travelers who fit the same profile,or persons who just flew internationally with the profiled individuals, are not included.

    In addition, the New York and New Jersey plans seem to rely 100 percent on individuals who fit the profile self-identifying themselves for the mandatory quarantine. Anyone who wished to avoid it, especially a health professional who knew s/he was not an active carrier based on clearly identifiable and well-known symptoms such as a high fever, could just dummy up at the airport. Alternately, s/he could route flights to land somewhere else and take the bus home to Manhattan.

    What does happen when a healthcare worker enters this quarantine system? There is only one example in New Jersey so far, and it is not a pretty one. Kaci Hickox, returning from volunteer work in Sierra Leone, was detained against her will for seven hours at Newark Liberty International Airport on Friday before being forcibly transferred to a local hospital, escorted by eight police cars, where she will be held for an unspecified period of time. Hickox did not have a fever when brought to the hospital and has tested negative for ebola, yet is inside the system now and those things do not appear to matter.

    Quarantining actually infectious people, who may indeed be a danger to public health is one thing. But like taking off our shoes and other security theatre that followed 9/11, the quarantine plan seems designed more for show than any hint of practicality.



    Is it just a political ploy to garner votes from a panicked public?

    Oh my yes. All of the state governors who pushed the plan through without the endorsement of the CDC or New York’s mayor are in election battles. The governors of New York, Illinois and Florida are up for reelection in about a week, and New Jersey governor Chris Christie is famously testing the waters for a possible 2016 presidential run. New York’s mayor is not up for reelection for years.

    Fear-mongering works; ask any politician who has beaten the drum of “9/11, 9/11, 9/11” since, well, 9/11. People are scared, mostly based on ignorance fanned by media who themselves seek to profit from fear.

    That sort of disease seems more dangerous in the long run than a handful of ebola patients.




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    Dead Is Dead: Drone-Killing the Fifth Amendment

    July 25, 2014 // 7 Comments »



    You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be… deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redacted — about one-third of the text is missing — Justice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury, and executioner.

    Due Process in Constitutional America

    Looking back on the violations of justice that characterized British rule in pre-Constitutional America, it is easy to see the Founders’ intent in creating the Fifth Amendment. A government’s ability to inflict harm on its people, whether by taking their lives, imprisoning them, or confiscating their property, was to be checked by due process.

    Due process is the only requirement of government that is stated twice in the Constitution, signaling its importance. The Fifth Amendment imposed the due process requirement on the federal government, while the Fourteenth Amendment did the same for the states. Both offer a crucial promise to the people that fair procedures will remain available to challenge government actions. The broader concept of due process goes all the way back to the thirteenth-century Magna Carta.

    Due process, as refined over the years by the Supreme Court, came to take two forms in Constitutional America. The first was procedural due process: people threatened by government actions that might potentially take away life, liberty, or possessions would have the right to defend themselves from a power that sought, whether for good reasons or bad, to deprive them of something important. American citizens were guaranteed their proverbial “day in court.”

    The second type, substantive due process, was codified in 1938 to protect those rights so fundamental that they are implicit in liberty itself, even when not spelled out explicitly in the Constitution. Had the concept been in place at the time, a ready example would have been slavery. Though not specifically prohibited by the Constitution, it was on its face an affront to democracy. No court process could possibly have made slavery fair. The same held, for instance, for the “right” to an education, to have children, and so forth. Substantive due process is often invoked by supporters of same-sex unions, who assert that there is a fundamental right to marry. The meaning is crystal clear: there is an inherent, moral sense of “due process” applicable to government actions against any citizen and it cannot be done away with legally. Any law that attempts to interfere with such rights is inherently unconstitutional.

    Al-Awlaki’s Death

    On September 30, 2011, on the order of the president, a U.S. drone fired a missile in Yemen and killed Anwar al-Awlaki. A Northern Virginia Islamic cleric, in the aftermath of 9/11 he had been invited to lunch at the Pentagon as part of a program to create ties to Muslim moderates. After he moved to Yemen a few years later, the U.S. accused him of working with al-Qaeda as a propagandist who may have played an online role in persuading others to join the cause. (He was allegedly linked to the “Underwear Bomber” and the Fort Hood shooter.) However, no one has ever accused him of pulling a trigger or setting off a bomb, deeds that might, in court, rise to the level of a capital crime. Al-Awlaki held a set of beliefs and talked about them. For that he was executed without trial.

    In March 2012, Attorney General Eric Holder made quite a remarkable statement about the al-Awlaki killing. He claimed “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” In other words, according to the top legal authority in the nation, a White House review was due process enough when it came to an American citizen with al-Qaeda sympathies. In this, though it was unknown at the time, Holder was essentially quoting a secret white paper on that killing produced by the Office of Legal Counsel, located in the department he headed.

    In June 2014, after a long court battle to shield the underlying legal basis for the killing, the Obama administration finally released a redacted version of that classified 2010 white paper. In the end, it did so only because without its release key senators were reluctant to confirm the memo’s author, David Barron, who had been nominated by President Obama to serve on the First Circuit Court of Appeals. (Once it was made public, Barron was indeed confirmed.)

    The importance of the white paper to understanding Post-Constitutional America cannot be understated. Despite all the unconstitutional actions taken by the government since 9/11 — including striking violations of the Fourth Amendment — this paper is to date the only glimpse we have of the kind of thinking that has gone into Washington’s violations of the Bill of Rights.

    Here’s the terrifying part: ostensibly the result of some of the best legal thinking available to the White House on a issue that couldn’t be more basic to the American system, it wouldn’t get a first-year law student a C-. The arguments are almost bizarrely puerile in a document that is a visibly shaky attempt to provide cover for a pre-determined premise. No wonder the administration fought its release for so long. Its officials were, undoubtedly, ashamed of it. Let’s drill down.

    Death by Pen

    For the killing of an American citizen to be legal, the document claims, you need one essential thing: “an informed, high-level official of the U.S. government [who] has determined that the targeted individual poses an imminent threat of violent attack against the United States.” In addition, capture must be found to be unfeasible and the act of killing must follow the existing laws of war, which means drones are okay but poison gas is a no-no.

    The rest of the justification in the white paper flows from that premise in a perverse chain of ankle-bone-connected-to-the-leg-bone logic: the president has the obligation to protect America; al-Qaeda is a threat; Congress authorized war against it; and being in al-Qaeda is more relevant than citizenship (or as the document crudely puts it, “citizenship does not immunize the target”). International borders and the sovereignty of other nations are not issues if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.” Basically, it’s all an extension of the idea of self-defense, with more than a dash of convenience shaken in.

    When the white paper addresses the Fifth Amendment’s right to due process, and to a lesser extent, the Fourth Amendment’s right against unwarranted seizure (that is, the taking of a life), it dismisses them via the “balancing test.” Not exactly bedrock constitutional material, it works this way: in situations where the government’s interest overshadows an individual’s interest, and the individual’s interest isn’t that big a deal to begin with, and a mistake by the government can later be undone, the full due process clause of the Fifth Amendment need not come into play.

    The three-point balancing test cited by the white paper as conclusive enough to justify the extrajudicial killing of an American comes from a 1976 Supreme Court case, Mathews v. Eldridge. There, the court held that an individual denied Social Security benefits had a right to some form of due process, but not necessarily full-blown hearings. In Anwar al-Awlaki’s case, this translates into some truly dubious logic: the government’s interest in protecting Americans overshadows one citizen’s interest in staying alive. Somehow, the desire to stay alive doesn’t count for much because al-Awlaki belonged to al-Qaeda and was in the backlands of Yemen, which meant that he was not conveniently available by capture for a trial date. Admittedly, there’s no undoing death in a drone killing, but so what.

    The white paper also draws heavily on the use of the balancing test in the case of Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan Yaser Hamdi, a Saudi-American citizen, and sought to detain him indefinitely without trial. After a long legal battle that went to the Supreme Court, the balance test was applied to limit — but not fully do away with — due process. Despite limiting Hamdi’s rights in service to the war on terror, the court was clear: Yaser Hamdi should have a meaningful opportunity to challenge his status. Fearing that giving him his moment in court would expose the brutal reality of his capture, interrogation, and detention, the U.S. government instead released him to Saudi Arabia.

    Hamdi’s case dealt with procedural questions, such as whether he should be allowed a trial and if so, under what conditions. As with Mathews v. Eldridge, Hamdi never focused on issues of life and death. Cases can be (re)tried, prisoners released, property returned. Dead is dead — in the case of al-Awlaki that applies to the drone’s target, the balance test, and the Fifth Amendment itself.

    What Do Words Mean in Post-Constitutional America?

    Having dispensed with significant constitutional issues thanks to some exceedingly dubious logic, the white paper returns to its basic premise: that a kill is legal when that “informed, high-level official” determines that an “imminent threat” to the country is involved. In other words, if the president is convinced, based on whatever proof is provided, he can order an American citizen killed. The white paper doesn’t commit itself on how far down the chain of “high-level officials” kill authority can be delegated. Could the Secretary of the Interior, for instance, issue such an order? He or she is, after all, eighth in the line of succession should the president die in office.

    The white paper does, however, spend a fair amount of time explaining how the dictionary definitions of “imminent” and “immediate” do not apply. For kill purposes, it says, the U.S. must have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” However, the paper goes on to explain that “immediate” can include a situation like al-Awlaki’s in which a person may or may not have been engaged in planning actual attacks that might not be launched for years, or perhaps ever. The paper claims that, since al-Qaeda would prefer to attack the U.S. on a continual basis, any planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack that requires sending in the drones.

    And if, as perhaps the author of the paper suspected, that isn’t really enough when faced with the bluntness of the Constitution on the issue, the white paper haphazardly draws on the public authority justification. According to this legal concept, public authorities can, in rare circumstances, violate the law  — a cop can justifiably kill a bad guy under certain conditions. By extension, the white paper argues, the government of the United States can drone-kill a citizen who is allegedly a member of al-Qaeda. The white paper conveniently doesn’t mention that police shootings are subject to judicial review, and those who commit such unlawful acts can face punishment. The laws behind such a review are unclassified and public, not the rationed fodder of a redacted white paper.

    For the final nail in the coffin of some American citizen, the white paper concludes that, Fifth Amendment violation or not, its arguments cannot be challenged in court. In cases of “foreign policy,” courts have traditionally almost always refused to intervene, holding that they are in the realm of the executive branch in consultation, as required, with Congress. Killing an American abroad, the white paper insists, is a foreign policy act and so none of any courts’ business.

    Principles

    Substantive due process legally applies only to legislation, and it is highly unlikely that the Obama administration will seek legislative sanction for its kill process. So it is in one sense not surprising that the white paper makes no mention of it. However, looking at what we can read of that redacted document through the broader lens of substantive due process does tell us a lot about Post-Constitutional America. In Constitutional America, the idea was that a citizen’s right to life and the due process that went with it was essentially an ultimate principle that trumped all others, no matter how bad or evil that person might be. What is important in the white paper is not so much what is there, but what is missing: a fundamental sense of justness.

    As medieval kings invoked church sanction to justify evil deeds, so in our modern world lawyers are mobilized to transform government actions that spit in the face of substantive due process — torture, indefinite detention without charge, murder — into something “legal.” Torture morphs into acceptable enhanced interrogation techniques, indefinite detention acquires a quasi-legal stance with the faux-justice of military tribunals, and the convenient murder of a citizen is turned into an act of “self-defense.” However unpalatable Anwar al-Awlaki’s words passed on via the Internet may have been, they would be unlikely to constitute a capital crime in a U.S. court. His killing violated the Fifth Amendment both procedurally and substantively.

    Despite its gravity, once the white paper was pried loose from the White House few seemed to care what it said. Even the New York Times, which had fought in court alongside the ACLU to have it released, could only bring itself to editorialize mildly that the document offered “little confidence that the lethal action was taken with real care” and suggest that the rubber-stamp secret Foreign Intelligence Surveillance Court be involved in future kill orders. The ACLU’s comments focused mostly on the need for more documentation on the kills. Meanwhile, a majority of Americans, 52%, approve of drone strikes, likely including the one on Anwar al-Awlaki.

    The Kind of Country We Live In

    We have fallen from a high place. Dark things have been done. Imagine, pre-9/11, the uproar if we had learned that the first President Bush had directed the NSA to sweep up all America’s communications without warrant, or if Bill Clinton had created a secret framework to kill American citizens without trial. Yet such actions over the course of two administrations are now accepted as almost routine, and entangled in platitudes falsely framing the debate as one between “security” and “freedom.” I suspect that, if they could bring themselves to a moment of genuine honesty, the government officials involved in creating Post-Constitutional America would say that they really never imagined it would be so easy.

    In one sense, America the Homeland has become the most significant battleground in the war on terror. No, not in the numbers of those killed or maimed, but in the broad totality of what has been lost to us for no gain. It is worth remembering that, in pre-Constitutional America, a powerful executive — the king — ruled with indifference to the people. With the Constitution, we became a nation, in spirit if not always in practice, based on a common set of values, our Bill of Rights. When you take that away, we here in Post-Constitutional America are just a trailer park of strangers.




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    Here’s How it is Legal for the Government to Kill an American Citizen

    July 7, 2014 // 12 Comments »




    When you are saying something true, pure, clean and right, you often do not need many words. Like most of the Bill of Rights, the Fifth Amendment to the Constitution is beautiful in its brevity. Americans may not “…be deprived of life, liberty, or property, without due process of law.”

    There are no footnotes in the Fifth Amendment, no secret memos, no exceptions. Those things were unnecessary, because in what Lincoln offered to his audience as “a government of the people, by the people, for the people,” the government was made up of us, the purpose of government was to serve us, and the government was beholden to us. Such a government should be incapable of killing its own citizens without an open, public trial allowing the accused to defend him/herself.

    Oh how times have changed.

    Killing an American

    On September 30, 2011 a U.S. drone fired a missile in Yemen and killed American Citizen Anwar al Awlaki, born in the United States. A few days later the U.S. also killed al Awlaki’s 16 year old American Citizen son. Al Awlaki had once been a friend of the American military, invited in the aftermath of 9/11 to speak and lunch at the Pentagon. A few years later, al Awlaki was connected by the same U.S. government to al Qaeda, apparently mostly as a propagandist who may or may not have taken on an online role in persuading other Westerners to join the cause.

    In 2012 Attorney General Holder said of the al Awlaki killing and the Fifth Amendment “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” It was unknown at the time, but Holder was referring to a secret white paper prepared by the Office of the Legal Counsel laying out the legal justification for the U.S. government to kill one of its own citizens extrajudicially, in apparent violation of the Fifth Amendment.

    Orwellian Legality

    A hallmark of Post-Constitutional America, of which the U.S. government killing its own citizens without due process by drone surely is a part, is the manipulation of existing rights and laws without just doing away with them. Unlike national security states and tyrannies of the past, which overtly declared constitutions and laws obsolete and crumpled up the parchment, America’s new state twists the old into something new, and sinister.

    After a long legal battle to keep secret the underlying “legal” basis for its killing of al Awlaki (and others in the past, or to come?), the Obama administration released in June 2014 a redacted text of the Office of Legal Counsel’s white paper drawn up to justify the action. With some irony, the release of the 2010 document was facilitated by the Obama administration’s desire to placate senators reluctant to approve the memo’s author, David Barron, to serve on the First Circuit Court of Appeals (Barron was indeed approved.)

    Reading the Kill Justification Paper: Death, With a Stroke of a Pen

    Here’s what the kill white paper says in order to make legal the killing of an American Citizen by his/her government without trial (the full memo is here.)

    The essential element for the kill to be legal, the document says, is “an informed, high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.” (Also, capture must be found to be unfeasible, and the kill must follow the existing laws of war.)

    The rest of the justification simply flows from there in a perverse chain of logic: the president has the obligation to protect America, al Qaeda or its like are a threat, Congress has authorized war against al Qaeda, and being in al Qaeda is more relevant than whatever citizenship the target may hold or where s/he is located (“citizenship does not immunize the target.”) Basically, it is all simply an extension of the idea of self-defense. International borders and other nations’ sovereignty are not an issue if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.”

    The Balancing Test

    The Fifth Amendment right to due process, and perhaps to a lesser extent, the Fourth Amendment right against unwarranted seizure (i.e., a life) are dismissed casually in the white paper by a claim that the U.S.’ interest in “forestalling the threat of violence and death to other Americans that arises” trumps any constitutional rights for the individual. This is described as part of the traditional Fifth Amendment “balancing process.”

    The balancing process cited as conclusive enough to justify the extrajudicial killing of an American comes, according to the kill white paper, stems from a 1976 Supreme Court case, Mathews v. Eldridge, 424 U.S. 319 (1976), where the Court held that individuals have a statutorily granted property right in Social Security benefits, that the termination of those benefits implicates due process, but that the termination of those benefits does not require a pre-termination hearing. Stick with me on this.

    The balance test for the Fifth Amendment to apply as laid out in that case has three components [notes added]:

    (1) The importance of the private interest affected. [In a kill case, the private interest is the life of an American citizen]

    (2) The risk of erroneous deprivation through the procedures used, and the probable value of any additional or substitute procedural safeguards. [In a kill case, since the American will be dead, the impossibility of ever “correcting” the mistake. The Court held that “If the risk of error is minimal, then the need for additional procedures declines. If the risk is high then additional procedures would be merited.” So, with the potential of a recoverable error, less process is needed. The more serious a mistake might be if committed, the more process needed.]

    (3) The importance of the state interest involved and the burdens which any additional or substitute procedural safeguards would impose on the state. [According to the kill white paper, the idea that killing the American saves potentially thousands of other Americans lies is the state’s interest. The burden of the U.S. government to follow any procedural safeguards, such as a trial in absentia where the target could have his/her side presented by a lawyer, is not addressed in the kill white paper]

    In short, the balancing test says that in some situations, where the government’s interest overshadows an individual’s interest, and the individual interest isn’t that big of a deal, and where a mistake by the government can be fixed, the full due process clause of the Fifth Amendment may not have to apply.


    An Imbalance

    The kill white paper draws heavily on the case Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan an American citizen and sought to detain him indefinitely without trial as an enemy combatant.

    After a long legal battle that went to the Supreme Court, the three-part balance test of Mathews v. Eldridge was decided to apply to the case and allow the U.S. to limit– but not fully do away with as in the drone killings– the due process to be received. The most important point here is that despite limiting his rights, the Court was clear that the prisoner Hamdi should have a meaningful opportunity to challenge his enemy combatant status.

    Interestingly, likely to avoid a court challenge to the conditions of this detention and the exposure of whatever details of his capture and possible torture might come out, the U.S. government released Hamdi without charge and forcibly sent him, an American citizen, to Saudi Arabia, and required him then to “voluntarily” renounce his U.S. citizenship. Of course the deportation and renunciation are themselves of dubious constitutionality; U.S. citizens have a right under the Fourteenth Amendment of the Constitution to return to U.S. territory after traveling abroad.

    That the kill white paper makes much of the Hamdi case suggests the lack of sound legal argument. Claiming killing an American by his/her own government without trial is allowed by the balance test, the white paper ignores the fact that Hamdi was not killed. A mistake in his case can be largely corrected, possibly in the future as a result of a court appeal, simply by reinstating his U.S. citizenship and allowing him to return to the U.S.

    A broader critical issue not addressed in the kill white paper is that Hamdi’s case deals with (albeit serious) administrative questions, such as should he be allowed a trial and if so under what conditions. The government never proposed a death sentence for Hamdi. The underlying case the kill white paper bases its whole argument on, Mathews v. Eldridge, deals with relatively routine administrative government procedures, and certainly not ones of life and death of a citizen. The case was of course about denied Social Security benefits.

    What Do Words Even Mean Anymore?

    With significant constitutional issues dispensed with via some dubious logic and creaky legal citations, the kill white paper returns to its base premise, that a kill is legal when “an informed, high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.”

    The white paper does not identify what level of proof is needed to meet the test of “informed” and it does not explain who is and is not a “high level official of the U.S. government” for the purposes of killing an American.

    The paper does spend a fair amount of time explaining how the standard dictionary definition of “imminent” does not apply here. The paper says for kill purposes the U.S. need not actually have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” Instead, imminent can mean a person such as al Awlaki is generally engaged in planning attacks that may or may not possibly be launched until years from now, or that may or may not happen at all. The paper says that since al Qaeda would prefer to continually attack the U.S., essentially any action, planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack and allows for a legal kill of an American citizen by the government.

    And if somehow all that is not enough, the white paper also invokes the “public authority justification.” This concept says that public authorities can sometimes violate the law– a cop can justifiably shoot and kill an armed bad guy in some circumstances, and it’s a lawful kill. By extension, the government of the United States can drone down a citizen because s/he is allegedly a member of al Qaeda. The white paper does not address the fact that police shootings in the U.S. are subject to investigation and judicial review, and cops who commit an unlawful kill can face punishment.

    None of this Can be Challenged in Court

    The white paper also makes clear its conclusions cannot be challenged in any court. Courts have almost always refused to intervene in cases of “foreign policy,” holding constitutionally that is the realm of the Executive in consultation as required with Congress. Killing Americans, the white paper says, is a foreign policy act and thus none of any courts’ business. The issue of the white paper citing several court decisions to justify the killings while claiming the killings are not a court matter is not addressed.

    Comment

    It should be obvious that the kill white paper, ostensibly the result of some of the best legal thinking available to the White House, wouldn’t get a C- for a first year law student. The arguments are weak at best, the legal cites and logic rarely directly support the rationale, and the entire document seems a shaky attempt to justify however it can a pre-determined premise. The vagueness of word usage, the key terms left undefined, the odd definitions of common words like “imminent” employed, all strain against reality.

    Yet despite all this (and keep in mind portions of the paper were redacted, there may be more legal falsities not yet seen), the sixteen pages described above were considered enough in Post-Constitutional America for president Obama to justify pushing aside the Fifth Amendment, ignoring due process, and ordering the death of an American citizen.

    Oh how times have changed.



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    Military Court Ruling to Have Impact on Bradley Manning?

    July 5, 2013 // 9 Comments »




    A decision by the Court of Appeals for the Armed Forces, the military’s highest court, overturning a Marine’s murder conviction based on violations of the Fifth Amendment, may have positive implications for Bradley Manning. The Court held that the Marine’s being held in solitary confinement for seven days without access to a lawyer, after refusing to incriminate himself, made his subsequent statements invalid as his Fifth Amendment rights were violated. The technicalities differ, but the similarity between that Marine’s situation and Manning’s may prove significant.

    The facts in Marine Lawrence Hutchins’ case are clear. On patrol in Iraq in 2006, Hutchins ordered his squad to kidnap and execute in cold blood an Iraqi civilian, and then make it look like they had ambushed a high-value insurgent in a “good shoot.” The squad would be praised for its work in the war on terror. The truth came out, and Hutchins was arrested in Iraq. After he refused to talk to investigators and asked for a lawyer, Hutchins was instead locked into a shipping container for seven days and nights, denied the chance to contact a lawyer, and held under mind-numbing solitary conditions. After seven days of this, and still without a lawyer, Hutchins was asked to consent to a search of his belongings, and started to incriminate himself.


    The Court of Appeals ruled that Hutchin’s Fifth Amendment rights were stomped upon when the investigators, after a seven day solitary confinement softening up, spoke to him again with a lawyer.


    Former Navy officer David Glazier, now a professor at Loyola Law School in Los Angeles, said “Here this guy’s conviction is overturned on the basis that he was mistreated by the government during his initial apprehension, and yet he’s already served five years in prison. If the conviction was unjust in the first place, it’s kind of appalling it’s taken the military justice system five years to resolve it.”

    That leaves us with the question of Private Manning. The military held him for three years, much of the time without a lawyer, much of the time under overtly inhumane conditions. While we don’t know what statements Manning did or did not make prior to seeing a lawyer, or at what point if any he invoked his Fifth Amendment rights, one would think his current attorney would be reading the Hutchins’ decision word-by-word today.

    And hey, Bradley Manning did not murder anyone.

    BONUS: Whistleblower Jesslyn Radack’s firing from the Department of Justice was based in large part on her assertions that the so-called American Taliban, John Walker Lindh, was held under inhuman conditions, interrogated without a lawyer even after he requested one, and thus denied his Fifth Amendment rights. DOJ fired her, and threw Lindh and most of the Constitution into prison.



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    We Take Care of Our Own: Eric Holder and the End of Rights

    March 6, 2012 // 6 Comments »

    (This post also appeared on the Huffington Post on March 6, 2012)

    Historians of the future, if they are not imprisoned for saying so, will trace the end of America’s democratic experiment to the fearful days immediately after 9/11, what Bruce Springsteen called the days of the empty sky, when frightened, small men named Bush and Cheney made the first decisions to abandon the Constitution in the name of freedom and created a new version of the security state with the Patriot Act, Guantanamo, secret prisons and sanctioned torture by the US government. They proceeded carefully, making sure that lawyers in their employ sanctioned each dark act, much as kings in old Europe used the church to justify their own actions.

    Those same historians will remark from exile on the irony that such horrendous policies were not only upheld by Obama, a Nobel Peace Prize winner and professor of Constitutional law, but added to until we came to the place we sadly occupy today: the Attorney General of the United States, Eric Holder, publicly stating that the American Government may murder one of its own citizens when it wishes to do so, and that the requirements of due process enshrined in the Constitution’s Fifth Amendment, itself drawn from the Magna Carta that was the first reflowering of basic human rights since the Greeks, can be satisfied simply by a decision by that same President.

    Today will thus be remembered as the day we gave up. No more clever wordplay (enhanced interrogations, “patriot” act, targeted killing, kinetic operations) but a simple declaration that the US Government will kill its own citizens when it wishes to, via a secret process we, and our victims, are not allowed to know or contest.

    Brevity in Our Freedom

    Like most of the Bill of Rights, the Fifth Amendment to the Constitution is beautiful in its brevity and clarity. When you are saying something true, pure, clean and right, you often do not need many words: “…nor be deprived of life, liberty, or property, without due process of law.”

    There are no footnotes in the Fifth Amendment, no caveats, no secret memos, no exceptions for war, terrorism, mass rape, creation of concentration camps, acts of genocide, child torture or any evil. Those things are unnecessary, because in the beauty of what Lincoln offered to his audience as “a government of the people, by the people, for the people,” the government would be made up of us, the purpose of government was to serve us, and the government would be beholden to us. Such a government would be incapable of killing its own citizens without care and debate and open trial.

    With the excuse all tyrants proclaim, protecting the nation, on or about September 30, 2011 a US drone fired a missile in Yemen and killed American Citizen Anwar al Awlaki, born in the United States and tragically devoted to al Qaeda. A few days later the US also killed al Zawaki’s 16 year old American Citizen son. The US had shot at the elder al Awlaki before, on May 7, 2011 under Obama’s orders, and under the Bush administration. Before the US government killed his son, attorneys for al Awlaki’s father tried to persuade a US District Court to issue an injunction preventing the government killing of al Awlaki. A judge dismissed the case, ruling the father did not have standing to sue. This was the first time in our nation’s history that a father sought to sue to prevent the government from extra-legally killing his son. The judge in the case surrendered to his post-9/11 fear and wrote that it was up to the elected branches of government, not the courts, to determine whether the United States has the authority to murder its own citizens by decree.

    Fear Shaped by Lies to Compel Compliance

    In his speech, Attorney General Holder said things no honest man would ever believe would be said by the highest law officer in the United States.

    Holder said “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’”

    Holder thus also declaimed that the victim also has no right to a defense, no right to speak on his behalf, no right to examine and refute the evidence against him and no right even to know his life will be taken under the decision of a few men in Washington. Indeed, Holder made clear that the government’s decision to kill overshadowed the right to self-defense in saying “An individual’s interest in making sure that the government does not target him erroneously could not be more significant. Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.”

    Holder said he rejected any attempt to label such operations assassinations, invoking the same airbrush of lawfulness that fueled the Inquisition, the Salem Witch Trials and the Holocaust. “Assassinations are unlawful killings. The US government’s use of lethal force in self-defense against a leader of al-Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful.”

    Sluts All

    So while the popular media remembers today as the day Rush apologized for calling someone a slut and Republican candidates ignored the wave of history to carp about birth control, historians will look back on March 5, 2012 as the day America gave up on its experiment with unalienable rights, rights that are natural, not given, rights independent of governments, what our Declaration explained to an unsure forming nation as “Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

    America was different. We became a country not based on a common language, or religion or anything else except adherence to a common set of beliefs, our Bill of Rights. When you take that away, there is nothing left in common, and goddammit Eric Holder and Barack Obama know that.

    The saddest part of a very sad day: the majority of Americans– the consent of the governed– seemingly do not care what Holder said, and are even now bleating on internet forums and likely in comments below to this article about the need to kill more, adding terrified, empty justifications to Holder’s clever statements. We did not have our freedom taken from us, we gave it away.



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    America the Battlefield: The End of the Rule of Law

    December 8, 2011 // Comments Off on America the Battlefield: The End of the Rule of Law

    A guest blog post by John W. Whitehead of the Rutherford Institute.


    America’s so-called war on terror has forever altered the political and legal landscape of our country. It has chipped away at our freedoms and is unraveling our Constitution. Even now, with Osama bin Laden having been killed and Al-Qaeda dismantled by a series of high-profile assassinations, the war hawks continue to rattle their sabers. Yet while more and more Americans join the call for a de-escalation of military actions abroad, those clamoring for war have turned their focus inwards. As Senator Lindsay Graham recently remarked as an explanation for his support of legislation allowing for the indefinite detention of Americans, “Is the homeland the battlefield? You better believe it is the battlefield.”

    America has indeed become the new battleground in the war on terror. In light of this, you can rest assured that there will be no restoration of the civil liberties jeopardized by the USA Patriot Act and other equally subversive legislation. Instead, those in power will continue to sanction ongoing violations of our rights, relying on bureaucratic legalese to sidestep any concerns that might be raised. The National Defense Authorization Act of 2012, which was passed by the Senate with a vote of 93 – 7, is a perfect example of this. Contained within this massive defense bill is a provision crafted by Democrat Charles Levin and Republican John McCain which mandates that anyone suspected of terrorism against the United States be held in military custody indefinitely. This provision extends to American citizens on American territory. The bill also renews the Authorization to Use Military Force (AUMF) which was passed in 2001, shortly after the 9/11 attacks. In addition to renewing the AUMF, it extends its provisions to include military action against those who “substantially support” Al Qaeda, the Taliban, or “associated forces.” And to cap it off, the bill enhances restrictions against transferring detainees being held in Guantanamo Bay to the continental United States.

    Taken collectively, these provisions re-orient our legal landscape in such a way as to ensure that martial law, rather than the rule of law—our U.S. Constitution, becomes the map by which we navigate life in the United States. In short, this defense bill not only decimates the due process of law and habeas corpus for anyone perceived to be an enemy of the United States, but it radically expands the definition of who may be considered the legitimate target of military action. If signed into law by President Obama, this bill will not only ensure that we remain in a perpetual state of war—with this being a war against the American people—but it will also institute de facto martial law in the United States.

    The fact that our elected representatives—public servants entrusted with acting in our best interests—are putting forth legislation which endangers the right to due process, a founding principle of this nation, is alarming, but perhaps not all that surprising. We have witnessed the pieces being put into place for years now with little outcry from the American people. The perpetual war on terror has provided those in power with the perfect means by which to ratchet up the fear, all the while slowly eroding our freedoms.

    I have yet to see any credible rationale for the presence of these martial law provisions in the defense bill. After all, existing laws and government procedures already address all contingencies for handling any actual enemies of the United States. Even the courts have helped to reinforce these ongoing breaches, ruling that it’s a prerogative of the president, not the judiciary, to determine how enemies of the United States will be treated in custody and what type of trial they will receive, if any. Moreover, we have not seen a terrorist attack on American soil since 9/11. Yet with America pulling out of Iraq at the end of the year, and slowly ratcheting down its commitment to Afghanistan, the military industrial complex that feeds off of war is increasingly making its presence felt on American soil.

    Is there any hope of thwarting this legislation? In light of the fact that the defense bill, which has passed the Senate, must still be reconciled with the House of Representatives’ version, it is possible that the offending provisions could be deleted. The Obama administration has also suggested that the president might veto the bill in its entirety. Yet Obama’s veto threat doesn’t actually stem from a concern for the rule of law so much as it has to do with his attempt to amass greater presidential powers.

    The situation presents us with something of a Catch-22. If the bill is signed into law as it currently exists, anyone (including Americans) in any part of the world (including the United States) who is “suspected” of terrorism may be detained indefinitely and without trial by the United States military. If the bill is altered so as to remove these provisions, this will still probably occur, as the executive branch has, in the years since 9/11, carved out broad, overreaching, and unconstitutional powers for itself when it comes to pursuing military and police actions against perceived enemies.

    Thus, while the passage of this defense bill would be the final nail in the coffin for the rule of law in America, for all intents and purposes, the rule of law is already on life support. Of all of the egregious actions of the United States government in the past decade, this may be the most outrageous. That our lawmakers, sworn to uphold the Constitution, would even consider voting on a provision that completely eviscerates the rule of law is appalling. Unfortunately, this is the state of our government, a government that has been allowed to run wild since 9/11.

    As we ratchet down the wars abroad, we must call upon our leaders to shore up the rule of law and civil liberties at home. There is absolutely no excuse for the continued abuse of power that we as a nation have endured for so long.



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    US Executes an American Citizen without Trial

    October 1, 2011 // 24 Comments »

    al Awlaki Q: If a foreign organization kills an American overseas for political reasons, it is called…

    A: Terrorism.

    Q: If the United States kills an American overseas for political reasons, it is called…

    A: Justice?

    The Government of the United States, currently under the management of a former professor of Constitutional law, executed one of its own citizens abroad without any form of due process. This is generally seen as a no-no as far as the Bill of Rights, the Magna Carta and playground rules goes. The silly old Fifth Amendment to the Constitution guarantees “no person shall be deprived of life without due process of law” and include no exceptions for war, terrorism, or being a really shitty human being.

    Anwar al-Awlaki, an American Citizen, was killed in Yemen on or about September 30. While no one has claimed actual responsibility, the choices for trigger puller are either the inept Yemen military or the United States, with its Skynet-like web of drones, satellites and intelligence tools.

    America has been trying to kill al-Awlaki for some time. On or about May 7 a US military drone fired a missile in Yemen (which is another country that is not our country) aimed at American Citizen Anwar al Awlaki, then a real-live al Qaeda guy. The missile instead blew up a car with two other people in it, quickly dubbed “al Qaeda operatives” since we killed them. The US has shot at al Awlaki even before that, including under the Bush administration.

    In justifying the assassination attempts previously, Obama’s counterterrorism chief Michael Leiter said al Awlaki posed a bigger threat to the U.S. homeland than bin Laden did, albeit without a whole lot of explanation as to why this was. But, let’s be charitable and agree al Awaki is a bad guy; indeed, Yemen sentenced him to ten years in jail (which is not execution, fyi) for “inciting to kill foreigners” and “forming an armed gang.”

    The key factor in thinking this through is that no one has accused al-Awlaki of actual killing anyone. He is accused of talking to people, albeit about jihad and killing, and exchanging emails with evil people like the shoe bomber or the underwear bomber, I forget which, and the Fort Hood killer. None of these are nice people and I doubt any of the conversations were about nice things. Still, the true is uglier: the US executed an American Citizen because of what he said and what he thought.

    Attorneys for al Awlaki’s father previously tried to persuade a US District Court to issue an injunction last year preventing the government from the targeted killing of al Awlaki in Yemen, though a judge dismissed the case, ruling the father did not have standing to sue. My research has so far been unable to disclose whether or not this is the first time a father has sought to sue the US government to prevent the government from killing his son but I’ll keep looking. The judge did call the suit “unique and extraordinary” so I am going to go for now with the idea that no one has previously sued the USG to prevent them from murdering a citizen without trial or due process. The judge wimped out and wrote that it was up to the elected branches of government, not the courts, to determine whether the United States has the authority to murder its own citizens abroad.

    Just to get ahead of the curve, and even though my own kids are non-terrorists and still in school, I have written to the president asking in advance that he not order them killed. Who knows what they might do? One kid has violated curfew a couple of times, and another stays up late some nights on Facebook, and we all know where that can lead.

    The reason I bring up this worrisome turn from regular person to wanted terrorist is because al Awlaki used to be on better terms with the US government himself. In fact, after 9/11, the Pentagon invited him to a luncheon as part of the military’s outreach to the Muslim community. Al Awlaki “was considered to be an ‘up and coming’ member of the Islamic community” by the Army. He attended a luncheon at the Pentagon in the Secretary of the Army’s Office of Government Counsel. Al Awlaki was living in the DC area at that same, the SAME AREA MY KIDS LIVE, serving as Muslim chaplain at George Washington University, the SAME UNIVERSITY MY KIDS might walk past one day.

    Even though Constitutional law professor Obama appears to have skipped reading about the Fifth Amendment (release the transcripts! Maybe he skipped class that day!), courts in Canada have not.

    A Toronto judge was justified in freeing an alleged al Qaeda collaborator given the gravity of human rights abuses committed by the United States in connection with his capture in Pakistan, the Ontario Court of Appeal ruled. Judges are not expected to remain passive when countries such as the US violate the rights of alleged terrorists, the court said.

    “We must adhere to our democratic and legal values, even if that adherence serves in the short term to benefit those who oppose and seek to destroy those values,” said the Canadian court.

    Golly, this means that because the US gave up its own principles in detaining and torturing this guy, the Canadians are not going to extradite him to the US. That means that the US actions were… counterproductive… to our fight against terrorism. The Bill of Rights was put in place for the tough cases, not the easy ones. Sticking with it as the guiding principle has worked well for the US for about 230 years, so why abandon all that now?

    Meanwhile, I’ll encourage my kids to stay inside when they hear drones overhead.



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    Let’s Kill an American

    May 17, 2011 // 3 Comments »

    al Awlaki Q: If a foreign organization kills an American overseas for political reasons, it is called…
    A: Terrorism.

    Q: If the United States kills an American overseas for political reasons, it is called…
    A: Justice.

    The Government of the United States, currently under the management of a former professor of Constitutional law, is actively trying to kill one of its own citizens abroad without any form of due process. This is generally seen as a no-no as far as the Bill of Rights, the Magna Carta and playground rules goes. The silly old Fifth Amendment to the Constitution guarantees “no person shall be deprived of life without due process of law” and include no exceptions for war, terrorism, or being a really shitty human being.

    On or about May 7 a US military drone fired a missile in Yemen (which is another country that is not our country) aimed at American Citizen Anwar al Awlaki, a real-live al Qaeda guy. The missile instead blew up a car with two other people in it, quickly dubbed “al Qaeda operatives” since we killed them. The US has shot at al Awlaki before, including under the Bush administration. In justifying the assassination attempt, Obama’s counterterrorism chief Michael Leiter said al Awlaki posed a bigger threat to the U.S. homeland than bin Laden did, albeit without a whole lot of explanation as to why this was. But, let’s be charitable and agree al Awaki is a bad guy; indeed, Yemen sentenced him to ten years in jail (which is not execution, fyi) for “inciting to kill foreigners” and “forming an armed gang.”

    Attorneys for al Awlaki’s father tried to persuade a US. District Court to issue an injunction last year preventing the government from the targeted killing of al Awlaki in Yemen, though a judge dismissed the case, ruling the father did not have standing to sue. My research has so far been unable to disclose whether or not this is the first time a father has sought to sue the US government to prevent the government from killing his son but I’ll keep looking. The judge did call the suit “unique and extraordinary” so I am going to go for now with the idea that no one has previously sued the USG to prevent them from murdering a citizen without trial or due process. The judge wimped out and wrote that it was up to the elected branches of government, not the courts, to determine whether the United States has the authority to murder its own citizens abroad.

    Just to get ahead of the curve, and even though my own kids are non-terrorists and still in school, I have written to the president asking in advance that he not order them killed. Who knows what they might do? One kid has violated curfew a couple of times, and another stays up late some nights on Facebook, and we all know where that can lead.

    The reason I bring up this worrisome turn from regular person to wanted terrorist is because al Awlaki used to be on better terms with the US government himself. In fact, after 9/11, the Pentagon invited him to a luncheon as part of the military’s outreach to the Muslim community. Al Awlaki “was considered to be an ‘up and coming’ member of the Islamic community” by the Army. He attended a luncheon at the Pentagon in the Secretary of the Army’s Office of Government Counsel. Al Awlaki was living in the DC area at that same, the SAME AREA MY KIDS LIVE, serving as Muslim chaplain at George Washington University, the SAME UNIVERSITY MY KIDS might walk past one day.

    Even though Constitutional law professor Obama appears to have skipped reading about the Fifth Amendment (release the transcripts! Maybe he skipped class that day!), courts in Canada have not.

    A Toronto judge was justified in freeing an alleged al Qaeda collaborator given the gravity of human rights abuses committed by the United States in connection with his capture in Pakistan, the Ontario Court of Appeal ruled. Judges are not expected to remain passive when countries such as the US violate the rights of alleged terrorists, the court said Friday.

    “We must adhere to our democratic and legal values, even if that adherence serves in the short term to benefit those who oppose and seek to destroy those values,” said the Canadian court.

    Golly, this means that because the US gave up its own principles in detaining and torturing this guy, the Canadians are not going to extradite him to the US. That means that the US actions were… counterproductive… to our fight against terrorism. The Bill of Rights was put in place for the tough cases, not the easy ones. Sticking with it as the guiding principle has worked well for the US for about 230 years, so why abandon all that now?

    Meanwhile, I’ll encourage my kids to stay inside when they hear drones overhead.



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