One of my favorite constitutional lawyers is Bruce Fein. Although he is considered a conservative and was one of the authors of the articles of impeachment against President Bill Clinton, Fein advocated for the dual impeachment of Pres. George W. Bush and his vice president, Dick Cheney, during a discussion with then Washington correspondent for …
Jul 24 2018
Dec 23 2011
Twist as the president’s supporters might with the “look over here” tactic, the National Defense Authorization Bill (NDAA) does not change any existing law that Barack Obama has interpreted to mean he has the power to throw your sorry butt in prison anywhere in the world for as long as he chooses. Or he can just declare you a terrorist without providing evidence and have you executed without due process. Ignoring the Authorization to Use Military Force (AUMF) that was recently renewed giving the president the authority to send in the military to fight that ubiquitous enemy “terror”, the Obama loyalists, keep pointing to section 1022 of the NDAA, the section that makes military detention presumptive for non-citizens but doesn’t foreclose military detention of US citizens, while completely ignoring section 1021, the section that affirms the President’s authority to indefinitely detain people generally. As Marcy Wheeler at emptywheel points out while the NDAA does not authorize indefinite detention for American citizens, it does not foreclose the possibility either:
The NDAA doesn’t do anything to exempt Americans from indefinite detention. And the reason it doesn’t-at least according to the unrebutted claims of Carl Levin that I reported on over a month ago-is because the Administration asked the Senate Armed Services Committee to take out language that would have specifically exempted Americans from indefinite detention.
The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.” The Administration asked that this language be removed from the bill. [my emphasis]
So the effect is that (as Lawfare describes in detail) the bill remains unclear about whether Americans can be detained indefinitely and so we’re left arguing about what the law is until such time as a plaintiff gets beyond the Executive Branch’s state secrets invocations to actually decide the issue in court.
Nor did the amendment from Sen. Diane Feinstein clarify that point either, in fact, she may have codified it. So the only recourse is for some poor fool to have his civil liberties abrogated and try to fight in court without being allowed access to lawyers or courts. Those are some hurdles. Scott Horton, contributing editor at Harper’s magazine and New York attorney known for his work in human rights law and the law of armed conflict, discussed this with Keith Olbermann:
Constitutional expert and George Washington University law professor, Jonathan Turley, appeared on C-Span with his take on this discussion. He made it very clear that Obama says that he can assassinate American citizens living on U.S. soil:
(starting at 15:50):
President Obama has just stated a policy that he can have any American citizen killed without any charge, without any review, except his own. If he’s satisfied that you are a terrorist, he says that he can kill you anywhere in the world including in the United States.
Two of his aides just … reaffirmed they believe that American citizens can be killed on the order of the President anywhere including the United States.
You’ve now got a president who says that he can kill you on his own discretion. He can jail you indefinitely on his own discretion [..]
I don’t think the the Framers ever anticipated that [the American people would be so apathetic]. They assumed that people would hold their liberties close, and that they wouldn’t relax …
How quickly the president’s defenders forget Anwar al-Awlaki. Marcy points to the contortions of the law that Obama used to justify his assassination and then issued a “secret memorandum” which was conveniently “leaked” to New York Times reporter Charles Savage:
And, as Charlie Savage has reported, the legal justification the Administration invented for killing an American citizen in a premeditated drone strike consists of largely the same legal justification at issue in the NDAA detainee provisions.
The 2001 AUMF, which purportedly defined who our enemies are (though the NDAA more logically includes AQAP in its scope than the 2001 AUMF)
Hamdi, which held the President could hold an American citizen in military detention under the 2001 AUMF
Ex Parte Quirin, which held that an American citizen who had joined the enemy’s forces could be tried in a military commission
Scott v. Harris (and Tennesee v. Garner), which held that authorities could use deadly force in the course of attempting to detain American citizens if that person posed an imminent threat of injury or death to others
In other words, Obama relied on substantially the same legal argument supporters of the NDAA detainee provisions made to argue that indefinite detention of American citizens was legal, with the addition of Scott v. Harris to turn the use of deadly force into an unfortunate side-effect of attempted detention.
There is no question that the Obama administration, by signing the NDAA, believes that it has the broad power to indefinitely detain and assassinate American citizens and guarantees that the next president will too.
The late George Carlin said it several years ago, “this country is circling the drain“.
May 26 2011
This country stands on the edge of no longer existing as the Founding Father’s envisioned in the Constitution. Congress is about to infer on the Executive branch unprecedented power to wage war anywhere, detain or assassinate anyone, anywhere without due process and continue the expansion of the national security and surveillance state. The renewal of the reviled Patriot Act, is slated to be passed by congress with bipartisan approval today. As Jon Walker so astutely observes:
The often praised “bipartisanship” is rarely ever the product of both parties coming together around what the people want, and almost always about using each other as cover to avoid electoral consequences for voting in opposition to the will of the electorate.
The controversial Patriot Act, a bill once despised by almost every Democrat, passed cloture in the Senate on Monday night by 74 to 8. As Glen Greenwald noted only bills in support of Israel get this kind of near unanimous support. Eight Senators voting against cloture were Independent Sen. Bernie Sanders, Democrats Jeff Merkley, Mark Begich, Max Baucus, and John Tester, and GOP Senators Lisa Murkowski, Rand Paul, and Dean Heller. Tester and Paul spoke out specifically, objecting to the most egregious parts of the bill and the need for reform.
Sep 27 2007
A misunderstanding is leading to a good argument, that the Lieberman-Kyl Amendment sucks, being argued with bad facts. In essence, the argument goes that this language:
that the United States should designate Iran’s Islamic Revolutionary Guards Corps as a foreign terrorist organization under section 219 of the Immigration and Nationality Act and place the Islamic Revolutionary Guards Corps on the list of Specially Designated Global Terrorists…
triggers the September 18, 2001 AUMF. It does not. Let’s check the text:
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Nowhere is there a finding that Iran was involved in the 9/11 attacks. No one can credibly argue that they were (after all, Saddam was behind 9/11 . . .)
Nothing in the Iran Amendment passed today authorizes the use of force (nor would it even if it was NOT a nonbinding “sense of the Senate” resolution.)
But what are the effects of having the IRG declared “Specially Designated Global Terrorists?” Let’s consider that question on the flip.