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.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:
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...
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,  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.”A more recent story on the same sorts of issues with many of the same players (links in the original). Excerpts:
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...”
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.From The Guardian. Excerpts:
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...
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.Among the most dramatic secret enactments are the presidential kill or capture orders. Excerpts:
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...
...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.The targeted killing of American citizens is covered more thoroughly in a previous post in this series. The Washington Post discusses. Excerpts:
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 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...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:
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...
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.More. Excerpts:
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...
...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.And more. Excerpts:
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."...
...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.”And more. Excerpts:
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...
...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.”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:
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.”...
He was just a boy.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?
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 should at the very least have made it necessary for the United States to say why it killed him.
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...