Tuesday, July 30, 2013

Infrastructure of Tyranny--Secret Legal Decisions without Public Review

In the first part of this survey of what Conor Friedersdorf has called the "infrastructure of tyranny,"  we looked at the practice of extraordinary rendition, which is basically the art of making people disappear.  In the second part of this survey, we looked at black site prisons, or where people have been disappeared to.  In the third part of the series, we looked at secret detention, or simply not acknowledging that a person is in your hands.  In the fourth part, we looked at indefinite detention without trial.  In the fifth part, we looked at assassination without trial.  In the sixth installment, we looked at the goal of Total Information Awareness.  In this seventh installment, we'll examine the repeated enactment of legal decisions secretly without public knowledge or review, also known as "When the rules are secret, how do you know when you've done something wrong?"
An overview of the problem of a government enacting secret law.  Excerpts:
...President Obama is still not committing to full disclosure — which is especially disappointing since he released four detailed torture memos from the Bush years after he took office. Through his actions, or rather inaction, he is betraying a promise of his 2008 campaign as well as a fundamental element of American democracy: Openness between the government and the people it represents. Without that, there is no reliable basis for accountability.

Democracy works best when the government minimizes secrecy, including by recognizing that while the mechanics of national security operations must of course remain covert, there’s no reason not to openly explain the legal basis for these operations.

America re-learned this lesson six years ago, when the public realized that the Bush administration had secretly made law within the executive branch, allowing for the torture of prisoners taken in its war on terror.

Until then, as I’ve written about elsewhere in more detail, the Bush administration had acted in this area outside the bounds of democracy and accountability. When its legal memo about torture surfaced, it became clear that it expressed a political view, not a legally defensible one, and wide agreement developed among experts that the case for torture was unsupported by American or international law...
Here is a timeline of the Bush administration's series of secret legal memos and findings by which they justified the use of torture against their detainees. Some of the tactics described are firmly in the realm of the novel 1984. Excerpts:
The Justice Department on Thursday made public detailed memos describing brutal interrogation techniques used by the Central Intelligence Agency, as President Obama sought to reassure the agency that the C.I.A. operatives involved would not be prosecuted.

In dozens of pages of dispassionate legal prose, the methods approved by the Bush administration for extracting information from senior operatives of Al Qaeda are spelled out in careful detail — like keeping detainees awake for up to 11 straight days, placing them in a dark, cramped box or putting insects into the box to exploit their fears.

The interrogation methods were authorized beginning in 2002, and some were used as late as 2005 in the C.I.A.’s secret overseas prisons. The techniques were among the Bush administration’s most closely guarded secrets, and the documents released Thursday afternoon were the most comprehensive public accounting to date of the program...

The executive branch of the federal government has been justifying a number of their surveillance operations by secret interpretations of the Patriot Act.  Excerpts:
...On May 26, [2011] on the floor of the Senate, before the Patriot Act was extended, Sen. Ron Wyden said: “I want to deliver a warning this afternoon: When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.”

Backing Wyden was another committee member, Mark Udall, Democrat of Colorado: “Americans would be alarmed if they knew how this law is being carried out.” (New York Times, “Senators Say Patriot Act Is Being Misinterpreted,” May 27.)

Wyden, after he helped to file an amendment (which I will expand upon below), added this: “The fact is anyone can read the plain text of the Patriot Act, and yet many members of Congress have no idea how the law is being secretly interpreted by the executive branch, because that interpretation is classified.”

This patriotic amendment (and James Madison would agree with that description) requires Attorney General Eric Holder to “make public the U.S. government’s official interpretation of the Patriot Act.” The immediate focus as I’ll show is on Section 215 of the Patriot Act.

As he explained to me, and in other statements, Wyden (as a member of the Senate Intelligence Committee) does know some of this secret law, but cannot yet reveal it publicly because these hidden interpretations are classified.

Now dig this: Wyden’s amendment was never voted on during the debate before the Act’s extension. This tells us that what is being done to our constitutional liberties and rights has become yet another Obama administration “state secret.” As if We the People were the enemy...”
A more recent story on the same sorts of issues with many of the same players (links in the original). Excerpts:
Eight U.S. senators today seized on leaks from the National Security Agency to call for an end to a "secret law" that governs how intelligence agencies electronically spy on Americans.

Secret laws may seem like Kafkaesque jurisprudence borrowed from Soviet Russia, but last week's leak of a secret court order revealed the Obama administration has a secret interpretation of the Patriot Act that allows it to vacuum up logs of all domestic phone calls on a daily basis.

"It is impossible for the American people to have an informed public debate about laws that are interpreted, enforced, and adjudicated in complete secrecy," Sen. Ron Wyden, an Oregon Democrat and member of the Senate Intelligence committee, said in a statement. "When talking about the laws governing intelligence operations, the process has little to no transparency." Sen. Patrick Leahy, the head of the Judiciary committee, also signed on to today's request.

Wyden, along with senators Mark Udall (D-Colo.) and Rand Paul (R-Ky.), have warned for years of the problems with secret interpretations of the Patriot Act. A CNET article from 2011 quoted him as saying at the time: "I believe that the American people would be absolutely stunned" if they knew what was actually going on...
From The Guardian. Excerpts:
The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America's largest telecoms providers, under a top secret court order issued in April.

The order, a copy of which has been obtained by the Guardian, requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

The secret Foreign Intelligence Surveillance Court (Fisa) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.

Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.

The disclosure is likely to reignite longstanding debates in the US over the proper extent of the government's domestic spying powers...

The court order expressly bars Verizon from disclosing to the public either the existence of the FBI's request for its customers' records, or the court order itself...

It is not known whether Verizon is the only cell-phone provider to be targeted with such an order, although previous reporting has suggested the NSA has collected cell records from all major mobile networks. It is also unclear from the leaked document whether the three-month order was a one-off, or the latest in a series of similar orders.

The court order appears to explain the numerous cryptic public warnings by two US senators, Ron Wyden and Mark Udall, about the scope of the Obama administration's surveillance activities.

For roughly two years, the two Democrats have been stridently advising the public that the US government is relying on "secret legal interpretations" to claim surveillance powers so broad that the American public would be "stunned" to learn of the kind of domestic spying being conducted.

Because those activities are classified, the senators, both members of the Senate intelligence committee, have been prevented from specifying which domestic surveillance programs they find so alarming. But the information they have been able to disclose in their public warnings perfectly tracks both the specific law cited by the April 25 court order as well as the vast scope of record-gathering it authorized...
Among the most dramatic secret enactments are the presidential kill or capture orders. Excerpts:
...Mr. Obama has placed himself at the helm of a top secret “nominations” process to designate terrorists for kill or capture, of which the capture part has become largely theoretical. He had vowed to align the fight against Al Qaeda with American values; the chart, introducing people whose deaths he might soon be asked to order, underscored just what a moral and legal conundrum this could be.

Mr. Obama is the liberal law professor who campaigned against the Iraq war and torture, and then insisted on approving every new name on an expanding “kill list,” poring over terrorist suspects’ biographies on what one official calls the macabre “baseball cards” of an unconventional war. When a rare opportunity for a drone strike at a top terrorist arises — but his family is with him — it is the president who has reserved to himself the final moral calculation.

“He is determined that he will make these decisions about how far and wide these operations will go,” said Thomas E. Donilon, his national security adviser. “His view is that he’s responsible for the position of the United States in the world.” He added, “He’s determined to keep the tether pretty short.”

Nothing else in Mr. Obama’s first term has baffled liberal supporters and confounded conservative critics alike as his aggressive counterterrorism record. His actions have often remained inscrutable, obscured by awkward secrecy rules, polarized political commentary and the president’s own deep reserve...

When he applies his lawyering skills to counterterrorism, it is usually to enable, not constrain, his ferocious campaign against Al Qaeda — even when it comes to killing an American cleric in Yemen, a decision that Mr. Obama told colleagues was “an easy one.”

His first term has seen private warnings from top officials about a “Whac-A-Mole” approach to counterterrorism; the invention of a new category of aerial attack following complaints of careless targeting; and presidential acquiescence in a formula for counting civilian deaths that some officials think is skewed to produce low numbers...
The targeted killing of American citizens is covered more thoroughly in a previous post in this series. The Washington Post discusses. Excerpts:
...The problem isn’t the leaks, it’s the policy. It’s the assertion of a presidential prerogative that the administration can target for death people it decides are terrorists — even American citizens — anywhere in the world, at any time, on secret evidence with no review...Over the last three years, the Obama administration has carried out at least 239 covert drone strikes, more than five times the 44 approved under George W. Bush...The administration is at pains to suggest that no one is targeted for death until after extensive review, internal checks and balances and administrative “due process” of a sort. But this rationale is refuted by what we know from the administration’s own limited releases of information. Officials distinguish between “personality strikes” — which are targeted at named operatives — and “signature strikes” — which are triggered by evidence of allegedly threatening activity by unidentified persons. Not surprisingly, the latter have been notorious for the “collateral damage” — innocent civilians — who have been casualties...

Most Americans support the drones — after all they’re going after terrorists. But the administration is claiming the right to charge, try and execute an American citizen without a hearing or a trial and conviction. The Constitution, Attorney General Holder argues, “guarantees due process, not judicial process.” But once more, this tramples the entire framework of the Bill of Rights, which was devised to limit the power of the state to lock up political dissenters without an independent tribunal.

It is vital that Congress reassert its constitutional authority. In the 1952 Steel Seizure case, Justice Felix Frankfurter argued that “a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned . . . may be treated as a gloss on the executive power” vested in the president by the Constitution. The practice doesn’t just become legal, it becomes part of the Constitution, and Congress cannot thereafter challenge the authority that has been ceded.

Over twenty legislators led by Rep. John Conyers (D-Mich.), the ranking Democrat on the House Judiciary Committee, and Rep. Dennis Kucinich (D-Ohio) have written formally to the president asking that he explain openly “the process by which signature strikes are authorized and executed; the mechanisms used to “ensure such killings are legal;” and the mechanisms to track civilian casualties. The Congress should also insist that the Justice Department memo detailing the legal arguments relied on by the president be made public. And then Congress needs to hold a grand inquest on presidential war powers and the rights of both the Congress and American citizens...
As noted above, the legal justifications used by the executive branch to permit themselves to exercise such power have been kept secret even from Congress until recently. Excerpts:
President Barack Obama on Wednesday ordered the Justice Department to share with Congress a classified memo that explains the legal rationale that justifies the targeted killing of Americans suspected of being members of al Qaida.

The decision came after years of refusing to make the memo available and two days after a Justice Department "white paper" that described the memo’s contents was made public. The memo provides the legal framework for U.S. drone attacks that have killed at least three American citizens and as many as 3,500 others...A further explanation provided by the White House said Obama made the decision in an effort to include Congress in discussion of the country’s counterterrorism policies. The explanation called the decision "an extraordinary action."...

The Obama administration repeatedly has denied requests that the memo justifying the program be released and has fought in court to keep it secret. In December, a federal judge in Manhattan rejected a request that the memo be made public under the country’s Freedom of Information Act.

A bipartisan coalition in Congress that includes both liberal Democrats and conservative Republicans nevertheless have demanded that the memo be made public, most recently on Monday when three Republican and eight Democratic senators wrote the president asking that he share the memo.

Obama’s decision to allow members of the House and Senate intelligence committees to see the memo came after the publication of a so-called "white paper" that described the reasoning behind the Justice Department memo. U.S. Sen. Dianne Feinstein, D-Calif., chairwoman of the Senate Intelligence Committee, said the 16-page white paper had been provided to her committee last June and had provided the background the committee needed to oversee the drone program. The memo leaked to NBC News, which published it Monday...
More. Excerpts:
...Democratic Senator Ron Wyden has been among the most vocal of lawmakers demanding to know details of how the administration interprets its power to take out US citizens who are waging war against their own nation.

He said lawmakers needed to see the information to ensure that such power was subject to the appropriate safeguards and limitations.

"Every American has the right to know when their government believes that it is allowed to kill them," Wyden said Tuesday.

"I will continue to press the administration to provide Congress with any and all legal opinions that outline the president's authority to use lethal force against Americans.

"I will not be satisfied until I have received them."...
And more. Excerpts:
...Mr. Wyden has repeatedly called on the administration to release its legal memorandums laying out what the executive branch believes it has the power to do in national security matters, including the targeted killing of a citizen. Earlier on Wednesday, at a Democratic retreat in Annapolis, Md., he had hinted at a potential filibuster of Mr. Brennan’s nomination by vowing to “pull out all the stops to get the actual legal analysis, because without it, in effect, the administration is, in effect, practicing secret law.”

Mr. Wyden said that committee members would have immediate access to the material, and that there would be a process for other senators to read it eventually. It was not clear whether lawmakers’ legal aides would also be allowed to read it.

He said the administration’s decision to allow lawmakers “to finally see the legal opinions” was an “encouraging first step, and what I want to see is a bipartisan effort to build on it, particularly right now, when the lines are blurring between intelligence agencies and the military.”

The Congressional Intelligence Committees were created in the late 1970s to exercise oversight after a series of scandals at the spy agencies. The law requires that the committees be kept informed of intelligence activities. But most administrations withhold at least some legal opinions, treating them as confidential legal advice to the president and agency officials...
And more. Excerpts:
...Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, called the paper “a profoundly disturbing document,” and said: “It’s hard to believe that it was produced in a democracy built on a system of checks and balances. It summarizes in cold legal terms a stunning overreach of executive authority — the claimed power to declare Americans a threat and kill them far from a recognized battlefield and without any judicial involvement.”

The release of the white paper comes as President Obama’s counterterrorism adviser and nominee as C.I.A. director, John O. Brennan, awaits a confirmation hearing before the Senate Intelligence Committee on Thursday. Pressure has been growing on the administration to make the secret legal documents public, or at least to provide the Intelligence Committees with more of them.

On Tuesday, eight Democratic and three Republican senators, including some Intelligence Committee members, wrote to Mr. Obama asking for the legal opinions authorizing the killing of Americans. The letter followed one sent by Senator Ron Wyden, Democrat of Oregon, a member of the Intelligence Committee who has long sought access to the legal opinions.

The senators wrote that they needed the legal opinions to judge “whether the president’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards.”...
Sit and ponder for a moment with me the specter of this America in which we live. The federal government writes up secret legal memos and gets determinations from secret courts permitting the collection of massive amounts of data on its citizenry, the torture of people judged to be enemies of the state, and the assassination even of American citizens without trial. Oh, yes, right now most of these actions are taken against foreign nationals, perhaps even enemies of the human race. But not always. Consider again the case of the son of Anwar al-Awlaki. Excerpts:
He was just a boy.

Let's start there. He was an American boy, born in America. Though he'd lived in Yemen since he was about seven, he was still an American citizen, which should have made it harder for the United States to kill him.

It didn't.

It should at the very least have made it necessary for the United States to say why it killed him.

It didn't.

His name was Abdulrahman al-Awlaki, and he was 16 years old when he died — when he was killed by a drone strike in Yemen, by the light of the moon. He was the son of Anwar al-Awlaki, who was also born in America, who was also an American citizen, and who was killed by drone two weeks before his son was, along with another American citizen named Samir Khan. Of course, both Anwar al-Awlaki and Samir Khan were, at the very least, traitors to their country — they had both gone to Yemen and taken up with Al Qaeda in the Arabian Peninsula, and al-Awlaki had proven himself an expert inciter of those with murderous designs against America and Americans: the rare man of words who could be said to have a body count...

But Abdulrahman al-Awlaki wasn't on an American kill list. Nor was he a member of Al-Qaeda in the Arabian Peninusla. Nor was he "an inspiration," as his father styled himself, for those determined to draw American blood; nor had he gone "operational," as American authorities said his father had, in drawing up plots against Americans and American interests.

He was a boy who hadn't seen his father in two years, since his father had gone into hiding. He was a boy who knew his father was on an American kill list and who snuck out of his family's home in the early morning hours of September 4, 2011, to try to find him. He was a boy who was still searching for his father when his father was killed, and who, on the night he himself was killed, was saying goodbye to the second cousin with whom he'd lived while on his search, and the friends he'd made. He was a boy among boys, then; a boy among boys eating dinner by an open fire along the side of a road when an American drone came out of the sky and fired the missiles that killed them all...
If him, why not others? If we've turned this machinery against Al Qaeda, why not other organizations? Indeed, why not domestic organizations? Why not?

Monday, July 29, 2013

Infrastructure of Tyranny--Total Information Awareness

In the first part of this survey of what Conor Friedersdorf has called the "infrastructure of tyranny,"  we looked at the practice of extraordinary rendition, which is basically the art of making people disappear.  In the second part of this survey, we looked at black site prisons, or where people have been disappeared to.  In the third part of the series, we looked at secret detention, or simply not acknowledging that a person is in your hands.  In the fourth part, we looked at indefinite detention without trial.  In the fifth part, we looked at assassination without trial.  In this sixth installment, we'll look at the goal of Total Information Awareness, also known as "Big Brother is watching you."

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The title of this blog post is borrowed from the proposed title of an actual surveillance and data mining program which made headlines shortly after 9/11.  MSNBC has more.  Excerpts:
...Total Information Awareness was the brainchild of John Poindexter, the Reagan administration official who got his conviction in the Iran-Contra scandal overturned on appeal. At the time, it was designed to be a sweeping new electronic data-mining program, to access all sorts of digital information from just about anywhere. The idea was that a potential terrorist would leave a digital trail. But in order to find that trail, you had to collect all of the digital information there was, from anywhere and everywhere you could find it. And the program had this creepy Illuminati logo, of a pyramid with this all-seeing eye looking down on the earth. If you were to ask Alex Jones to design a logo to make every single neuron in his conspiratorial brain fire, this would be it. It’s almost as if the government was trying to troll conspiracy theorists.
But Total Information Awareness was creepy enough that it didn’t just set off the Alex Joneses of the world. There was a huge backlash against the idea of just collecting everyone’s data. From left, right and center, it sounded to a lot of folks like the kind of data mining that treats everyone in America as a potential terror suspect. So Congress used the 2004 defense appropriations bill to defund Total Information Awareness...
The proposed logo really was a thing of fear and a terror forever.  I mean, look at it!
But, in light of recent revelations about the NSA's work, PRISM, and more, it's worth asking whether Total Information Awareness ever really went away.  Excerpts:
...When I asked Farber if U.S. citizens need to worry about the U.S. acting like Big Brother, he replied, “Yeah.”
He noted that average citizens now generate huge amounts of digital information. This “Big Data” can be used in two different ways. First, corporations can analyze the data for commercially beneficial insights. Second, government agencies can examine the data for evidence that you are engaged in suspicious activities. “Once you have the data out there,” he said, “there is a whole set of things you can do with it, some of them justifiable and some not justifiable.”
Farber recalled that shortly after 9/11, the Defense Advanced Research Projects Agency initiated “Total Information Awareness,” a surveillance program that called for recording and analyzing all digital information generated by all U.S. citizens. (See Wikipedia for a history of the program.)
After news reports provoked criticism of the Darpa program, it was officially discontinued. But Farber suspected that new surveillance programs represent a continuation of Total Information Awareness. “I can’t get anyone to deny that there’s a common thread there,” he said.
In fact, this week’s news reports that the U.S. has been carrying out what is in effect a Total Information Awareness program should not have come as a huge surprise. Last year, long-time spy-watcher James Bamford revealed in WIRED that the National Security Agency is building a vast, $2 billion facility in Utah “to intercept, decipher, analyze, and store vast swaths of the world’s communications as they zap down from satellites and zip through the underground and undersea cables of international, foreign, and domestic networks.”
Bamford asserted that the facility, called the Utah Data Center, “is, in some measure, the realization of the ‘total information awareness’ program created during the first term of the Bush administration—an effort that was killed by Congress in 2003 after it caused an outcry over its potential for invading Americans’ privacy.”...
More.  Excerpts:
...Undeterred, President Bush secretly directed the NSA to expand and refine its information gathering in the United States — instructing them to bypass the Foreign Intelligence Surveillance Courts if necessary. With authority from the President and billions of dollars, they set up a secret project called Stellar Wind...
In 2006, a whistleblower at AT&T disclosed that he had helped set up a secret NSA splitter on one of these peering points in the San Francisco AT&T building. The splitter copies all the digital traffic passing through the line and sends it to a secure room hidden deep within the building. The equipment in that room then copies and processes all the information — Voice over Internet Protocols (VoIP), emails, texts, web traffic, etc. — and transmits it to the NSA for storage. In subsequent lawsuits filled by the Electronic Frontier Foundation, they alleged the NSA had set up these “black rooms” at dozens of telecom and Internet switching stations across the United States.
With these splitters, the NSA’s operating principal seemed to have shifted from targeted surveillance to “collect everything and sort through it later..." 
The Snowden affair isn’t the first time the NSA’s domestic spying has been revealed. In 2006 the New York Times — despite threats and appeals from Bush and his administration — exposed aspects of the NSA’s extrajudicial wiretapping citing unnamed insider sources including Binney. In the ensuing outcry, Congress investigated the program, and it was brought, ostensibly, back under FISC oversight. But as we now know, the NSA’s mass surveillance continued, operating under the legal interpretation that a communication is only “intercepted” when a human reviews the information or listens to the call. Thus the NSA still collects grand swathes of domestic surveillance, organizing it autonomously through various algorithms and storing it away, only needing a FISC warrant when they actually enter a name into their data banks  The full extent of this continuing surveillance is impossible to know, but thanks to Edward Snowden much of it is coming to light.  Whether PRISM replaced the Stellar Wind program or is just one of its operations remains to be seen.
When President Obama was elected, many hoped he would dismantle the post 9/11 culture of surveillance, conspiracy and unchecked executive power, but it’s clear the breadth and scale of state power has only increased since 2008. The Obama administration continues to push for a Haussmannization of cyberspace, demanding that email, VoIP, and social networking platforms construct backdoors and thoroughfares for police surveillance and anti-piracy measures. It has created massive initiatives to carry out cyber war — and may have already participated in the first major cyber attack with the Stuxnet virus. All the while, the NSA and other military intelligence agencies carry on the dream of Total Information Awareness, working at the level of the Internet’s very architecture.
* * *
On a technical level, a few hackers, libertarians and software developers are constantly designing programs to hide our virtual identity and protect our digital communications. The Onion Router (Tor) bounces Internet traffic through proxy servers to hide a user’s identity, allowing someone to visit proscribed websites without detection or even maneuver around government firewalls, as in China or Syria. The open source Pretty Good Privacy encryption (PGP) is the gold standard for protecting sensitive information — the NSA even recommends it for classified government documents — and, as far as anyone knows, is currently considered unbreakable by even the world’s fastest computers. If everyone used PGP, their digital communications would be secure, at least from mass interception. But most people don’t use PGP, and encryption software is under attack legally — there have been attempts to ban or restrict its use by private citizens — and physically. The NSA is supposedly building a new supercomputer that will crack current encryption methods using the wide information cache in the Utah Data Center to search for patterns.
Another hope is that the sheer volume of digital information, growing exponentially as millions of people link into the Internet, will simply overwhelm the surveillance capability of even the most technically advanced security services. Perhaps somewhere a rogue programmer is developing applications that will increase this incoherence and overwhelm surveillance algorithms, or perhaps they are creating an encryption standard that is even harder to break.
These are mere technical stopgaps, however, and they need to be situated within broader questions about the changes in modern life and governance...
Here's the Cato Institute's discussion of Total Information Awareness at the time it was being revealed to the public.  Excerpts:
...Adm. Poindexter assures us that TIA will be designed to respect constitutional guarantees of privacy and shield law-abiding citizens from the Pentagon’s all-seeing eye. But if the history of military surveillance of civilians is any indication, accepting that assurance amounts to the triumph of hope over experience. 
Opponents of new government surveillance measures such as TIA or Operation TIPS, the Justice Department’s aborted plan to utilize citizen informants, often invoke the specter of the East German secret police and communist Cuba’s block watch system. But we don’t have to look to totalitarian states for cautionary tales. There’s a long and troubling history of military surveillance in this country. That history suggests that we should loathe allowing the Pentagon access to our personal information...
Interesting accounts of WWI and Vietnam era domestic surveillance programs follow.  The New York Times, at the time TIA was becoming public knowledge.  Excerpts:
...According to its Web site, which features a Latin slogan that means ''knowledge is power,'' ''Total Information Awareness of transnational threats requires keeping track of individuals and understanding how they fit into models.'' To this end, T.I.A. seeks to develop architectures for integrating existing databases into a ''virtual, centralized, grand database.'' In addition to analyzing financial, educational, travel and medical records, as well as criminal and other governmental records, the T.I.A. program could include the development of technologies to create risk profiles for millions of visitors and American citizens in its quest for suspicious patterns of behavior...
All right, so TIA got killed--sort of. Let's talk about the US PRISM system.  Here's one of the Guardian stories which helped cause the recent ruckus about Edward Snowden.  Excerpts:
The National Security Agency has obtained direct access to the systems of Google, Facebook, Apple and other US internet giants, according to a top secret document obtained by the Guardian.
The NSA access is part of a previously undisclosed program called Prism, which allows officials to collect material including search history, the content of emails, file transfers and live chats, the document says.
The Guardian has verified the authenticity of the document, a 41-slide PowerPoint presentation – classified as top secret with no distribution to foreign allies – which was apparently used to train intelligence operatives on the capabilities of the program. The document claims "collection directly from the servers" of major US service providers. Although the presentation claims the program is run with the assistance of the companies, all those who responded to a Guardian request for comment on Thursday denied knowledge of any such program...
The NSA access was enabled by changes to US surveillance law introduced under President Bush and renewed under Obama in December 2012.
The program facilitates extensive, in-depth surveillance on live communications and stored information. The law allows for the targeting of any customers of participating firms who live outside the US, or those Americans whose communications include people outside the US.
It also opens the possibility of communications made entirely within the US being collected without warrants...
Some of the world's largest internet brands are claimed to be part of the information-sharing program since its introduction in 2007. Microsoft – which is currently running an advertising campaign with the slogan "Your privacy is our priority" – was the first, with collection beginning in December 2007.
It was followed by Yahoo in 2008; Google, Facebook and PalTalk in 2009; YouTube in 2010; Skype and AOL in 2011; and finally Apple, which joined the program in 2012. The program is continuing to expand, with other providers due to come online. Collectively, the companies cover the vast majority of online email, search, video and communications networks...
The extent and nature of the data collected from each company varies.
Companies are legally obliged to comply with requests for users' communications under US law, but the Prism program allows the intelligence services direct access to the companies' servers. The NSA document notes the operations have "assistance of communications providers in the US"...
A chart prepared by the NSA, contained within the top-secret document obtained by the Guardian, underscores the breadth of the data it is able to obtain: email, video and voice chat, videos, photos, voice-over-IP (Skype, for example) chats, file transfers, social networking details, and more...
The Prism program allows the NSA, the world's largest surveillance organisation, to obtain targeted communications without having to request them from the service providers and without having to obtain individual court orders.
With this program, the NSA is able to reach directly into the servers of the participating companies and obtain both stored communications as well as perform real-time collection on targeted users...
Jameel Jaffer, director of the ACLU's Center for Democracy, that it was astonishing the NSA would even ask technology companies to grant direct access to user data.
"It's shocking enough just that the NSA is asking companies to do this," he said. "The NSA is part of the military. The military has been granted unprecedented access to civilian communications.
"This is unprecedented militarisation of domestic communications infrastructure. That's profoundly troubling to anyone who is concerned about that separation."
Tons more in the Guardian piece, including graphics from the leaked Powerpoint.
An interesting detail about the new PRISM system at Alternet.  Excerpts:
...Former NSA and DNI director Mike McConnell now happens to be vice chairman of Booz Allen Hamilton—Snowden's employer up to this week. Talk about revolving door; from the NSA to Booz Allen to DNI and back to Booz Allen. Only this year McConnell has already raked in US $1.8 million by selling Booz Allen shares and options.[3] Clapper, the current DNI, is a former Booz Allen executive...
Anyone—with the right clearance—may use TIA to amass serious inside financial information and make staggering profits. So yes, follow the money...
Snowden is surfing the PR tsunami as a master—and controlling it all the way. Yes, you do learn a thing or two at the CIA. The timing of the disclosure was a beauty; it handed Beijing the ultimate gift just as President Obama was corralling President Xi Jinping in the California summit about cyber war. As David Lindorff nailed it, now Beijing simply cannot let Snowden hang dry.[5] It's culture; it's a matter of not losing face.
And then Snowden even doubled down—revealing the obvious; as much as Beijing, if not more, Washington hacks as hell.[6] 
Following the money, the security privatization racket and Snowden's moves—all at the same time—allows for a wealth of savory scenarios, starting with selected players embedded in the NSA-centric Matrix node making a financial killing with inside information...
And if all that weren't enough, our movements, increasingly, are being tracked.
And the DEA apparently has been covering up the real sources of some of their information.  Excerpts:
A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans. Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges. The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence - information that could reveal entrapment, mistakes or biased witnesses. "I have never heard of anything like this at all," said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers. "It is one thing to create special rules for national security," Gertner said. "Ordinary crime is entirely different. It sounds like they are phonying up investigations..."
Anyone else feel like a nice, relaxing review of 1984?
For more, see:

Thursday, July 25, 2013

Infrastructure of Tyranny--Assassination without Trial

In the first part of this survey of what Conor Friedersdorf has called the "infrastructure of tyranny,"  we looked at the practice of extraordinary rendition, which is basically the art of making people disappear.  In the second part of this survey, we looked at black site prisons, or where people have been disappeared to.  In the third part of the series, we looked at secret detention, or simply not acknowledging that a person is in your hands.  In the fourth part, we looked at indefinite detention without trial.  In this fifth part, we'll take a look at assassination without trial.
Drone strikes have been a significant tool in the global war on terror since shortly after 9/11.  Many terror leaders have been taken out, and they've seriously degraded the capability of terrorist groups to operate without fear of death from the skies.  Excerpts:
The dire impact of CIA drone missile strikes against suspected terrorists in Pakistan certainly did not go unnoticed by Osama bin Laden, prompting the al Qaeda leader to repeatedly warn associates to take appropriate security measures, according to documents seized during the raid on the al Qaeda leader's Pakistan compound last year...

Drones had primarily been used for surveillance purposes in Pakistan, but in 2004, the CIA upped the ante by firing the first missile from a drone at a terrorist target in Waziristan. Hundreds of attacks have been launched since then.

In a May 2010 message to Rahman, bin Laden wrote, "I had mentioned in several previous messages ... the importance of the exit from Waziristan of the brother leaders, especially the ones that have media exposure. I stress this matter to you and that you choose distant locations to which to move them, away from aircraft, photography and bombardment while taking all security precautions."
From the New York Times.  Excerpts:
A stepped-up campaign of American drone strikes over the past three months has battered Al Qaeda and its Pakistani and Afghan brethren in the tribal area of North Waziristan, according to a mid-ranking militant and supporters of the government there.

The strikes have cast a pall of fear over an area that was once a free zone for Al Qaeda and the Taliban, forcing militants to abandon satellite phones and large gatherings in favor of communicating by courier and moving stealthily in small groups, they said.

The drones, operated by the C.I.A., fly overhead sometimes four at a time, emitting a beelike hum virtually 24 hours a day, observing and tracking targets, then unleashing missiles on their quarry, they said.

The strikes have sharpened tensions between the local tribesmen and the militants, who have dumped bodies with signs accusing the victims of being American spies in Miram Shah, the main town in North Waziristan, they said...
Huffington Post.  Excerpts:
Should you ever find yourself under heavy drone fire, fear not: al Qaeda has put together a handy guide on how to avoid unmanned aircrafts.

The 22-step handbook was left behind by Islamist militants as they fled Timbuktu amid heavy resistance by the French and Malian armies. According to the Associated Press, which found a copy of the document in a building that had been occupied by al Qaeda of the Islamic Maghreb, the tipsheet was originally penned by Abdallah bin Muhammad, a senior commander of Yemen's al Qaeda in the Arabian Peninsula, and published on a jihadist forum a month after Osama bin Laden was killed two years ago.
For all their effectiveness, they persist in causing significant civilian casualties.  Excerpts:
U.S. drone strikes in Pakistan have killed far more people than the United States has acknowledged, have traumatized innocent residents and largely been ineffective, according to a new study released Tuesday.

The study by Stanford Law School and New York University's School of Law calls for a re-evaluation of the practice, saying the number of "high-level" targets killed as a percentage of total casualties is extremely low -- about 2%.

The report accuses Washington of misrepresenting drone strikes as "a surgically precise and effective tool that makes the U.S. safer," saying that in reality, "there is significant evidence that U.S. drone strikes have injured and killed civilians."

It also casts doubts on Washington's claims that drone strikes produce zero to few civilian casualties and alleges that the United States makes "efforts to shield the drone program from democratic accountability."

...In contrast to more conservative U.S. statements, the Stanford/NYU report -- titled "Living Under Drones" -- offers starker figures published by The Bureau of Investigative Journalism, an independent organization based at City University in London.

"TBIJ reports that from June 2004 through mid-September 2012, available data indicate that drone strikes killed 2,562 - 3,325 people in Pakistan, of whom 474 - 881 were civilians, including 176 children. TBIJ reports that these strikes also injured an additional 1,228 - 1,362 individuals," according to the Stanford/NYU study.

Based on interviews with witnesses, victims and experts, the report accuses the CIA of "double-striking" a target, moments after the initial hit, thereby killing first responders...
The US disputes these figures.  Excerpts:
...The official called the report's methodology into question, calling the information "indirect input from a loose network of Pakistani government and tribal contacts… far from authoritative."

The U.S. government has previously acknowledged accidentally killing civilians in its drone program since 2004, but put the total number at closer to 50. U.S. officials made that admission in 2011 when the BIJ published their own data on drone strikes, alleging 385 civilians had been killed in Pakistan since 2004 and that 168 of those were children. As with the new report, the U.S. officials called into question the methodology that led to those findings.

"We see the battlefield in real time; the Bureau of Investigative Journalism doesn't," a U.S. official said in 2011. "This group's allegations about individual strikes are, in every case, divorced from the facts on the ground."

The new Pakistani government report alleges that most of the children killed between 2006 and 2009 died in a single strike on a religious school in October 2006. The Pakistani report put the dead at 80 children, according to the BIJ. Local news reports at the time put the figure at 69.

In 2011, the U.S. official estimated that American drone strikes had taken out approximately 2,000 suspected militants, including high-level terror leaders, and this February, following criticism over the deaths of four Americans by drone strike – only one of whom was actually targeted -- the White House defended the kill program.

"We conduct these strikes because they are necessary to mitigate ongoing, actual threats, to stop plots, to prevent further attacks and, again, to save American lives," White House Press Secretary Jay Carney said then. "These strikes are legal, they are ethical and they are wise."
The whole notion of persistent methods of warfare which generate civilian casualties should be shocking to anyone who takes seriously the idea that it is always wrong to take an innocent human life.  The idea that we're manipulating those casualty counts to make our drone program less problematic ought to give us all good reason to think we need to scale it down dramatically.  Excerpts:
Virtually every time the U.S. fires a missile from a drone and ends the lives of Muslims, American media outlets dutifully trumpet in headlines that the dead were ”militants” – even though those media outlets literally do not have the slightest idea of who was actually killed. They simply cite always-unnamed “officials” claiming that the dead were “militants.” It’s the most obvious and inexcusable form of rank propaganda: media outlets continuously propagating a vital claim without having the slightest idea if it’s true.

This practice continues even though key Obama officials have been caught lying, a term used advisedly, about how many civilians they’re killing. I’ve written and said many times before that in American media discourse, the definition of “militant” is any human being whose life is extinguished when an American missile or bomb detonates (that term was even used when Anwar Awlaki’s 16-year-old American son, Abdulrahman, was killed by a U.S. drone in Yemen two weeks after a drone killed his father, even though nobody claims the teenager was anything but completely innocent: “Another U.S. Drone Strike Kills Militants in Yemen”)...[I] want specifically to highlight this one vital passage about how the Obama administration determines who is a “militant.” The article explains that Obama’s rhetorical emphasis on avoiding civilian deaths “did not significantly change” the drone program, because Obama himself simply expanded the definition of a “militant” to ensure that it includes virtually everyone killed by his drone strikes. Just read this remarkable passage:
Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.

Counterterrorism officials insist this approach is one of simple logic: people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good. “Al Qaeda is an insular, paranoid organization — innocent neighbors don’t hitchhike rides in the back of trucks headed for the border with guns and bombs,” said one official, who requested anonymity to speak about what is still a classified program.

This counting method may partly explain the official claims of extraordinarily low collateral deaths. In a speech last year Mr. Brennan, Mr. Obama’s trusted adviser, said that not a single noncombatant had been killed in a year of strikes. And in a recent interview, a senior administration official said that the number of civilians killed in drone strikes in Pakistan under Mr. Obama was in the “single digits” — and that independent counts of scores or hundreds of civilian deaths unwittingly draw on false propaganda claims by militants.

But in interviews, three former senior intelligence officials expressed disbelief that the number could be so low. The C.I.A. accounting has so troubled some administration officials outside the agency that they have brought their concerns to the White House. One called it “guilt by association” that has led to “deceptive” estimates of civilian casualties.

“It bothers me when they say there were seven guys, so they must all be militants,” the official said. “They count the corpses and they’re not really sure who they are.”
But I think the most problematic part of the whole program is that which is least talked about: this power has been used against American citizens.  There is no evidence that the administration intends never to do this again. Allow Glenn Greenwald to introduce the issue.  Excerpts:
The most extremist power any political leader can assert is the power to target his own citizens for execution without any charges or due process, far from any battlefield. The Obama administration has not only asserted exactly that power in theory, but has exercised it in practice. In September 2011, it killed US citizen Anwar Awlaki in a drone strike in Yemen, along with US citizen Samir Khan, and then, in circumstances that are still unexplained, two weeks later killed Awlaki's 16-year-old American son Abdulrahman with a separate drone strike in Yemen.

Since then, senior Obama officials including Attorney General Eric Holder and John Brennan, Obama's top terrorism adviser and his current nominee to lead the CIA, have explicitly argued that the president is and should be vested with this power. Meanwhile, a Washington Post article from October reported that the administration is formally institutionalizing this president's power to decide who dies under the Orwellian title "disposition matrix".

When the New York Times back in April, 2010 first confirmed the existence of Obama's hit list, it made clear just what an extremist power this is, noting: "It is extremely rare, if not unprecedented, for an American to be approved for targeted killing." The NYT quoted a Bush intelligence official as saying "he did not know of any American who was approved for targeted killing under the former president". When the existence of Obama's hit list was first reported several months earlier by the Washington Post's Dana Priest, she wrote that the "list includes three Americans".

What has made these actions all the more radical is the absolute secrecy with which Obama has draped all of this. Not only is the entire process carried out solely within the Executive branch - with no checks or oversight of any kind - but there is zero transparency and zero accountability. The president's underlings compile their proposed lists of who should be executed, and the president - at a charming weekly event dubbed by White House aides as "Terror Tuesday" - then chooses from "baseball cards" and decrees in total secrecy who should die. The power of accuser, prosecutor, judge, jury, and executioner are all consolidated in this one man, and those powers are exercised in the dark.

In fact, The Most Transparent Administration Ever™ has been so fixated on secrecy that they have refused even to disclose the legal memoranda prepared by Obama lawyers setting forth their legal rationale for why the president has this power...
More, from a piece written around the time the targeting of Awlaki.  Excerpts:
I wrote at length about the extreme dangers and lawlessness of allowing the Executive Branch the power to murder U.S. citizens far away from a battlefield (i.e., while they’re sleeping, at home, with their children, etc.) and with no due process of any kind.  I won’t repeat those arguments — they’re here and here — but I do want to highlight how unbelievably Orwellian and tyrannical this is in light of these new articles today.

No due process is accorded.  No charges or trials are necessary.  No evidence is offered, nor any opportunity for him to deny these accusations (which he has done vehemently through his family).  None of that.

Instead, in Barack Obama’s America, the way guilt is determined for American citizens — and a death penalty imposed — is that the President, like the King he thinks he is, secretly decrees someone’s guilt as a Terrorist.  He then dispatches his aides to run to America’s newspapers — cowardly hiding behind the shield of anonymity which they’re granted — to proclaim that the Guilty One shall be killed on sight because the Leader has decreed him to be a Terrorist.  It is simply asserted that Awlaki has converted from a cleric who expresses anti-American views and advocates attacks on American military targets (advocacy which happens to be Constitutionally protected) to Actual Terrorist ”involved in plots.”  These newspapers then print this Executive Verdict with no questioning, no opposition, no investigation, no refutation as to its truth.  And the punishment is thus decreed:  this American citizen will now be murdered by the CIA because Barack Obama has ordered that it be done.  What kind of person could possibly justify this or think that this is a legitimate government power?

Just to get a sense for how extreme this behavior is, consider — as the NYT reported — that not even George Bush targeted American citizens for this type of extra-judicial killing (though a 2002 drone attack in Yemen did result in the death of an American citizen).  Even more strikingly, Antonin Scalia, in the 2004 case of Hamdi v. Rumsfeld, wrote an Opinion (joined by Justice Stevens) arguing that it was unconstitutional for the U.S. Government merely to imprison (let alone kill) American citizens as “enemy combatants”; instead, they argued, the Constitution required that Americans be charged with crimes (such as treason) and be given a trial before being punished.  The full Hamdi Court held that at least some due process was required before Americans could be imprisoned as “enemy combatants.”  Yet now, Barack Obama is claiming the right not merely to imprison, but to assassinate far from any battlefield, American citizens with no due process of any kind.  Even GOP Congressman Pete Hoekstra, when questioning Adm. Blair, recognized the severe dangers raised by this asserted power.

And what about all the progressives who screamed for years about the Bush administration’s tyrannical treatment of Jose Padilla?  Bush merely imprisoned Padilla for years without a trial.  If that’s a vicious, tyrannical assault on the Constitution — and it was — what should they be saying about the Nobel Peace Prize winner’s assassination of American citizens without any due process?...
Mark Steyn commented at the time of Rand Paul's epic filibuster on the question of whether or not the President could use drones to kill American citizens within the United States. Excerpts:
...Al-Awlaki Senior was an al-Qaida ideologue and a supposed "spiritual mentor" to everyone from the 9/11 murderers to the Fort Hood killer and the thwarted Pantybomber. On the other hand, after September 11th, he was invited to lunch at the Pentagon, became the first imam to conduct a prayer service at the U.S. Congress, and was hailed by NPR as an exemplar of an American "Muslim leader who could help build bridges between Islam and the West." The precise point at which he changed from American bridge-builder to Yemeni restaurant takeout is hard to determine.

His public utterances when he was being feted by the New York Times are far more benign than those of, say, Samira Ibrahim, who was scheduled to receive a "Woman of Courage" award from Michelle Obama and John Kerry on Friday until an unfortunate flap erupted over some ill-phrased Tweets from the courageous lass rejoicing on the anniversary of 9/11 that she loved to see "America burning."

The same bureaucracy that booked Samira Ibrahim for an audience with the First Lady and Anwar al-Awlaki to host prayers at the Capitol now assures you that it's entirely capable of determining who needs to be zapped by a drone between the sea bass and the tiramisu at Ahmed's Bar and Grill. But it's precisely because the government is too craven to stray beyond technological warfare and take on its enemies ideologically that it winds up booking the First Lady to hand out awards to a Jew-loathing, Hitler-quoting, terrorist-supporting America-hater...

We have advanced from the paramilitarization of the police to the paramilitarization of the Bureau of Form-Filling. Two years ago in this space, I noted that the Secretary of Education, who doesn't employ a single teacher, is the only education minister in the developed world with his own SWAT team: He used it to send 15 officers to kick down a door in Stockton, Calif., drag Kenneth Wright out on to the front lawn, and put him in handcuffs for six hours. Erroneously, as it turned out. But it was in connection with his estranged wife's suspected fraudulent student-loan application, so you can't be too careful. That the education bureaucracy of the Brokest Nation in History has its own SEAL Team Six is ridiculous and offensive. Yet the citizenry don't find it so: they accept it...
The filibuster begins at 2:17:43 below.

Tuesday, July 23, 2013

Infrastructure of Tyranny--Solutions

So, in light of this long list of unthinkable realities, what is to be done?
  • Pray, especially the Rosary and the Chaplet of Divine Mercy.  Pray for our politicians, our military and law enforcement personnel, our allies overseas, our enemies at home and abroad--everyone.  Pray for their conversion and sanctification, the Holy Spirit in their hearts and minds, the transformation of the Indwelling Trinity for them now and into eternity.  Pray!  As grace is unleashed into the world by our inviting God in, more people will become holy.  A civilization of love depends upon a society of saints--a whole generation of people who answer the universal call to holiness.  That's how the culture of death and fear will be confounded and the culture of life will win out.  We won't be able to discern light from darkness without prayer.  Nor will our actions have supernatural power or our words be full of truth if we aren't regularly getting in touch with God, the way, the truth, and the life.  Don;t forget to fast, as well!
  • Accept the antique maxim "Give me liberty or give me death!"  We must remember that if we surrender all our liberties for security, we shall have neither liberty nor security.  Be willing that there should be casualties in a free society, or else we shall give all our rights away for no sure security.
  • Know and love your neighbors.  Join groups.  Form networks of friends, acquaintances, relatives, that cannot be sundered if you lose your phone or are offline for a time.  Get to know the people around you.  Love them.  Pray for them.  Go to church, or temple, or mosque, or whatever house of worship you choose--but join.  Join the Knights of Columbus, or the PTA, or a book club, or something, just to better know and love the people around you.  Take local community and family seriously.  They're the ones who'll be around for you when you're old or ill or in need.  If you haven't built those relationships, you will truly be all alone with no attachments to anything larger than yourself should the bottom ever fall out of your life.
  • Do works of mercy and don't stop.  Find the needs which your time, talents, or treasure can best answer, then meet those needs.
  • Get involved in local politics.  It's the local politicians of today who, in a few years or decades, will be the national and international powerhouses.  If you want to see good, honorable people in national politics, start encouraging good, honorable people to get involved in local politics.  Get involved yourself!  Stop complaining about the people on offer and get your name or the name of the best and wisest human beings you have ever known on the ballot.
  • Join one of the major parties and stand your ground.  There must be criticism from within.  There must be pro-life Democrats and Republicans who refuse to accept "anything in the name of national security."  There must be people who will not go with the flow, who will be living things and go against the current, to paraphrase Chesterton.  Only then will the parties come to their senses.
  • Speak the truth.  Write letters to the editor.  Write blogs.  Post on Facebook.  Don't go quietly into this looming night.  Speak!  If enough of us talk about these impossible, insane, unthinkable realities which are falling into place around us, then we will live in an educated electorate.  There will be hope for real democratic change based upon a knowledge of the severity of the situation and, at the same time, a sense of empowerment to make a change.  Remember the methods used by Vaclav Havel, Pope John Paul II, Solzhenitsyn, and others to fight the doublethink and the culture of the lie they faced.  Take to heart the wisdom of George Orwell:  “In a time of universal deceit - telling the truth is a revolutionary act.”  The truth is powerful--always has been, always will be.  "And then you will know the truth, and the truth will set you free."  John 8:32.
  • Be holy as your Father in heaven is holyHere's how, and here, and here, and here.

Infrastructure of Tyranny--Indefinite Detention without Trial

In the first part of this survey of what Conor Friedersdorf has called the "infrastructure of tyranny,"  we looked at the practice of extraordinary rendition, which is basically the art of making people disappear.  In the second part of this survey, we looked at black site prisons, or where people have been disappeared to.  In the third part of the series, we looked at secret detention, or simply not acknowledging that a person is in your hands.  In the fourth part, we'll look at indefinite detention without trial, also known in some circles as "locking them up and throwing away the key."

There are people being indefinitely detained in Guantanamo Bay right now.  Excerpts:
The US Government has for the first time released the identities of 46 terror suspects being held at Guantánamo Bay as “indefinite detainees” — men considered too dangerous to transfer from the jail but ineligible for trial because of insufficient or tainted evidence...
Indefinite detention of American citizens is not impossible, especially in light of the National Defense Authorization Act (NDAA) brouhaha in 2012, the willingness of a number of senators to include language in the bill which would authorize the federal government to indefinitely detain US citizens without recourse to a trial, and the concatenation of events laid out in this series.  The proposed Senate language (which was rejected):
"Offered to the National Defense Authorization Act for Fiscal 2012 (S.1867), amendment No. 1274 would have allowed the U.S. government to detain an American citizen indefinitely, even after they had been tried and found not guilty, until Congress declares an end to the war on terror."
Sponsored by Senator Jeff Sessions of Alabama. Voted for by 41 members of the US Senate, including two Democrats, one Independent, and the rest Republicans.

Some would say it's already happened.  Excerpts:
...The threat that the U.S. government would detain indefinitely — or even kill — an American citizen without formal charges or judicial proceeding is hardly theoretical. The appellate court that struck down the injunction acknowledged that fact:

Presidents Bush and Obama have asserted the right to place certain individuals in military detention, without trial, in furtherance of their authorized use of force. That is, whom did Congress authorize the President to detain when it passed the AUMF [Authorization for the Use of Military Force]? On December 31, 2011, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2012. Section 1021 of that statute, which fits on a single page, is Congress’ first — and, to date, only — foray into providing further clarity on that question. Of particular importance for our purposes, Section 1021(b)(2) appears to permit the President to detain anyone who was part of, or has substantially supported, al-Qaeda, the Taliban, or associated forces.

Both President Obama and George W. Bush have authorized the detention or killing of American citizens without any due process.

U.S. citizen Anwar al-Awlaki had been deemed a terrorist by the Obama administration for essentially maintaining a YouTube site that called for attacks against Americans from Awlaki's Yemeni home. Awlaki — an American citizen — was later killed in a September 30, 2011 drone strike authorized by President Obama but without any judicial proceeding. No evidence of his actual involvement in any terrorist incident was ever made public, and no charges were ever brought in any court against Awlaki. Two weeks later Awlaki's Colorado-born 16-year-old son, Abdulrahman, was killed in a separate drone strike authorized by the president. And President Obama is widely known to have a “kill list” that includes American citizens.

President Bush detained at least four American citizens without trial: U.S. Navy Veteran Donald Vance, Nathan Ertel, Yaser Hamdi, and Jose Padilla. Although Vance and Ertel were released after a few months of torture (they were innocent), the Bush administration fought giving Hamdi and Padilla a trial — and even a habeas corpus hearing — all the way to the U.S. Supreme Court.
Court challenges to the NDAA passed in 2012 have recently failed.  Excerpts:
More on the decision.  Excerpts:
..."We thus conclude, consistent with the text and buttressed in part by the legislative history, that Section 1021 [of the 2012 NDAA] means this: With respect to individuals who are not citizens, are not lawful resident aliens, and are not captured or arrested within the United States, the President’s [Authorization for Use of Military Force] authority includes the authority to detain those responsible for 9/11 as well as those who were a part of, or substantially supported, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners—a detention authority that Section 1021 concludes was granted by the original AUMF. But with respect to citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all," Judge Lewis Kaplan wrote on behalf of Judges Amalya Kearse and Raymond Lohier...
The President has more recently signed a new version of the NDAA in 2013.  Salon has more.  Excerpts:
...This year, the same provisions over which he was so reserved remain in the 2013 version of the bill, along with a number of brand-new problematic amendments. The president threatened a veto on the new bill’s prohibitions on closing Guantánamo Bay detention center. But he didn’t veto; he signed the bill again on Thursday.

Once again, Obama expressed his misgivings in a signing statement, but stressed that “the need to renew critical defense authorities and funding was too great” to reject the bill, which approved a $633 billion armed forces budget for the 2013 fiscal year. Also approved in the NDAA are controversial provisions that will likely make closing Guantánamo Bay detention center impossible in Obama’s presidency, and provisions elsewhere in the act that allow for the indefinite military detention of U.S. citizens.

“It’s the second time that the president has promised to veto a piece of a very controversial national security legislation only to sign it,” said Shahid Buttar, executive director of the Bill of Rights Defense Committee, according to HuffPo. “He has a habit of promising resistance to national security initiatives that he ultimately ends up supporting and enabling...

Despite stating last year that his administration “worked tirelessly to reform or remove the provisions” relating to indefinite detention of U.S. citizens, Obama’s attorneys this year quashed federal injunctions made against these provisions as the result of an ongoing lawsuit brought against the president by Pulitzer Prize winner Chris Hedges, Daniel Ellsberg and six other plaintiffs including Noam Chomsky and Naomi Wolf. The president’s signing statement Thursday unsurprisingly made no such mention of tireless work to remove the controversial provisions...
More on the new NDAA.

Given the existence of secret detention, it would be difficult if not impossible to determine where or not the US is currently detaining any citizens indefinitely, where they are, how they are being treated, and whether or not they are in fact guilty of those acts for which they are being held.  Even if only non-citizens were indefinitely detained, the US would still be in breach of fundamental principles of human rights and due process of law.


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