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Tag Archives: rule of law

What Hath 9/11 Wrought?

11 Saturday Sep 2010

Posted by Craig in Bill of Rights, Constitution, Justice Department, Obama administration, terrorism, torture, war on terror

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ACLU, Andrew Sullivan, Bush administration, Daily Dish, due process, equal justice, Executive Branch, habeas corpus, Judicial Branch, national security, Ninth Circuit Court of Appeals, Obama administration, President Obama, rendition, rule of law, September 11, state secrets, The Day That Changed America, torture, war crimes

September 11, 2001 has been dubbed ‘The Day That Changed America’ and indeed it did. Indeed it did—and not for the better. It changed America from the land of the free and the home of the brave to the land of the increasingly less free and the home of ‘do whatever it takes to keep us safe.’ It changed us from a country governed by the founding principles of due process, equal justice, and the rule of law to a country where indefinite detention without charges or trials are an accepted practice. Where the Executive Branch, aided and abetted by the Judicial Branch, can be exempted from accountability from what were once considered war crimes simply by invoking the vague and all-encompassing claims of “state secrets” and “national security interests.”

These changes were exemplified in a decision by the Ninth Circuit Court of Appeals on Wednesday when it dismissed a suit by five men who allege they were imprisoned and tortured under the Bush administration’s rendition program. The decision was also considered a “major victory” for the Obama administration, who appealed an earlier ruling which said the suit should go forward.

“In a 6-5 ruling issued this afternoon, the 9th Circuit Court of Appeals handed the Obama administration a major victory in its efforts to shield Bush crimes from judicial review, when the court upheld the Obama DOJ’s argument that Bush’s rendition program, used to send victims to be tortured, are “state secrets” and its legality thus cannot be adjudicated by courts.  The Obama DOJ had appealed to the full 9th Circuit from last year’s ruling by a 3-judge panel which rejected the “state secrets” argument and held that it cannot be used as a weapon to shield the Executive Branch from allegations in this case that it broke the law.”

Not that this is any shift in direction. It’s just the latest effort by the current administration to continue, and in some cases expand upon, the policies of the former administration—policies candidate Obama denounced but President Obama embraces:

“Among other policies, the Obama national security team has also authorized the C.I.A. to try to kill a United States citizen suspected of terrorism ties, blocked efforts by detainees in Afghanistan to bring habeas corpus lawsuits challenging the basis for their imprisonment without trial, and continued the C.I.A.’s so-called extraordinary rendition program of prisoner transfers — though the administration has forbidden torture and says it seeks assurances from other countries that detainees will not be mistreated.”

The reaction to the decision from the ACLU:

“This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation’s reputation in the world. To date, not a single victim of the Bush administration’s torture program has had his day in court. If today’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers.”

Andrew Sullivan at The Daily Dish:

“The case yesterday is particularly egregious because it forbade a day in court for torture victims even if only non-classified evidence was used. Think of that for a minute. It shreds any argument that national security is in any way at stake here. It’s definitionally not protection of any state secret if all that is relied upon is evidence that is not secret. And so this doctrine has been invoked by Obama not to protect national security but to protect war criminals from the law. There is no other possible interpretation.

The Bush executive is therefore now a part of the American system of government, a system that increasingly bears no resemblance to the constitutional limits allegedly placed upon it, and with a judiciary so co-opted by the executive it came up with this ruling yesterday. Obama, more than anyone, now bears responsibility for that. We had a chance to draw a line. We had a chance to do the right thing. But Obama has vigorously denied us the chance even for minimal accountability for war crimes that smell to heaven.

And this leviathan moves on, its budget never declining, its reach never lessening, its power now emboldened by the knowledge that this republic will never check it, never inspect it, never hold its miscreants responsible for anything, unless they are wretched scapegoats merely following orders from the unassailable above them.”

To those who would “look forward” and give the Obama administration a pass here, ask yourself a few questions. If it were the Bush administration would you be so lenient? Let’s be very honest. If one administration is guilty of authorizing and condoning war crimes, is not the following administration, as evidenced by its actions, guilty of being an accessory to the commission of war crimes? I don’t see how any other conclusion can be reached.

Another thing to consider for those who may trust this far-reaching and unchecked expansion of Executive Branch power in the hands of President Obama—the power doesn’t leave with him when he leaves office. Would you trust it in the hands of President Palin? Think about it.

First they came for the suspected terrorists, and I didn’t care because I wasn’t a suspected terrorist………

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Quote of the Day: Andrew Sullivan on British Torture Inquiry

06 Tuesday Jul 2010

Posted by Craig in Obama, Politics, torture

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Andrew Sullivan, Barack Obama, Daily Dish, David Cameron, rule of law, torture inquiry, war crimes

Andrew Sullivan at The Daily Dish after British Prime Minister David Cameron announced “an inquiry into the alleged collusion of British intelligence officials in the torture of detainees.”

“After July 4, only one country in the Anglo-American alliance is still dedicated to the rule of law and the prosecution of war crimes: the old country. And it has taken a Tory prime minister to do what Barack Obama has not the slightest spine (yet) to tackle here.”

The Rule of Law Loses Another Round With Johnsen Withdrawal

13 Tuesday Apr 2010

Posted by Craig in George W. Bush, Justice Department, Obama, Politics, terrorism, torture, war on terror

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Dawn Johnsen, executive power, Glenn Greenwald, GOP obstructionists, look forward not back, OLC, President Obama, rule of law, Salon, Slate

In what has become SOP for this administration, President Obama has once again capitulated under the slightest pushback from the GOP obstructionists, although without too much of a struggle I might add. After leaving his nominee to head the OLC, Dawn Johnsen to “twist in the wind for more than a year,” Ms. Johnsen withdrew her nomination.

“The struggle between President Obama and Republicans on Capitol Hill has claimed a fresh victim — Dawn Johnsen. She was Mr. Obama’s choice to lead the Office of Legal Counsel at the Justice Department. Ms. Johnsen withdrew her nomination after more than a year. It was clear that the White House was not going to fight to save her from Republicans who were refusing to allow a vote on her confirmation.

Ms. Johnsen’s problem was not that she lacked strong qualifications to be the legal adviser to the executive branch, informing the White House about what the law requires and what it prohibits.”

Ms. Johnsen’s “problem” was that she is a staunch advocate for the limitation of executive power and an opponent of the president’s “look forward, not back” policy in relation to dealing with abuses of power by the previous administration. In a March, 2008 piece in Slate she wrote:

“The question how we restore our nation’s honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists.”

[…]

“Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation’s past transgressions and reject Bush’s corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation’s honor be restored without full disclosure.”

Glenn Greenwald at Salon writes:

“What Johnsen insists must not be done reads like a manual of what Barack Obama ended up doing and continues to do — from supporting retroactive immunity to terminate FISA litigations to endless assertions of “state secrecy” in order to block courts from adjudicating Bush crimes to suppressing torture photos on the ground that “opennees will empower terrorists” to the overarching Obama dictate that we “simply move on.”

Could she have described any more perfectly what Obama would end up doing when she wrote, in March, 2008, what the next President “must not do”?

A rhetorical question, I presume. The answer is painfully obvious.

President Obama, Have You No Principles?

06 Saturday Mar 2010

Posted by Craig in Bill of Rights, Constitution, Justice Department, Obama, Politics, war on terror

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Attorney General Eric Holder, civilian trials, constitutional rights, Elliot Richardson, Guantanamo Bay, Khalid Sheikh Mohammed, Nobel Prize speech, President Obama, Richard Nixon, rule of law, Saturday Night Massacre, Watergate

An open letter to President Obama and Attorney General Holder:

President Obama, have you no principles sir? Is there nothing for which you are willing to take an unwavering stand? Nothing which you are unwilling to sacrifice on the altar of political expediency? Nothing that will deter your quest for the Holy Grail of bi-partisanship? Nothing that is done without a moistened finger in the wind gauging current public opinion? If this story from the Washington Post about the decision not to try Khalid Sheikh Mohammed and the other 9/11 co-conspirators in civilian court is true, sadly the answers to all of the above questions appear to be no, nothing.

Do you remember your Nobel Peace Prize acceptance speech, sir? Let me refresh your memory (emphasis added):

“We lose ourselves when we compromise the very ideals that we fight to defend. And we honor — we honor those ideals by upholding them not when it’s easy, but when it is hard.”

This is one of those times, sir, one of those times when it is hard. This is one of those times when ones true character is tested. When the right thing to do and the popular thing to do are not one and the same, as history has shown us they seldom are.

Our constitutional rights and protections–in which our system of justice is anchored–and the rule of law are not, and should never be, subject to political compromise and deal-making. The Fifth and Sixth Amendments are not bargaining chips to be dealt away in the pursuit of Republican support for the closing of the prison at Guantanamo Bay.

Furthermore, who is prosecuted and how they are prosecuted is not the discretion of the president of the United States, and most assuredly not that of his chief of staff. That duty falls to the man whom you nominated and whom the Senate confirmed as Attorney General, Eric Holder. Once upon a time we had a Justice Department independent from political influence. That line of demarcation was blurred, if not completely erased, by the previous administration. You were elected on the promise of restoring that independence, but apparently that was only campaign rhetoric.

Attorney General Holder, you have a duty here too, sir. By virtue of the position which you hold, you are chief law enforcement official in this country. If you believe strongly that KSM and the others should be tried according to Article III, and if you want to be seen as more than an attorney-on-retainer who does the bidding of the White House, you have the obligation to tell the president to either make this decision yours and your alone, based solely on legal grounds, or resign your office.

One of your predecessors in the office of Attorney General faced a similar situation. He was ordered by the president to do something which went against his principles and was in violation of his duties as AG. Rather than be seen as a puppet of that administration, he resigned on the spot, as did his deputy when given the same order. His name was Elliot Richardson and the president was Richard Nixon, in the constitutional crisis now known as the infamous “Saturday Night Massacre” of the Watergate era.

This is no less a constitutional matter, sir. Your obligation is no less than was Mr. Richardson’s.

Our System of Justice Works–If We Let It

03 Wednesday Feb 2010

Posted by Craig in terrorism, torture

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Abdulmutallab, criminal justice system, enhanced interrogation techniques, FBI, investigation, rule of law, terrorist attack, torture

Despite this bi-partisan group of senators with their moistened fingers in the air during an election year, our system of justice works, if we just let it:

“Umar Farouk Abdulmutallab the Nigerian man accused of trying to blow up a jetliner bound for Detroit on Dec. 25, started talking to investigators after two of his family members arrived in the United States and helped earn his cooperation, a senior administration official said Tuesday evening.

…[F.B.I.] agents and the two family members flew back to the United States on Jan. 17. They met with the F.B.I. to discuss a way forward. After meeting with Mr. Abdulmutallab for several days, the official said, the family members persuaded him to talk to investigators.

Mr. Abdulmutallab, 23, began speaking to F.B.I. agents last week in Detroit and has not stopped, two government officials said. The officials declined to disclose what information was obtained from him, but said it was aiding in the investigation of the attempted terrorist attack.

“With the family, the F.B.I. approached the suspect,” the senior administration official said, speaking to reporters at the White House on the condition of anonymity because of the pending legal case. “He has been cooperating for days.”

Note the key phrases; “earned his cooperation,” not tortured him until he talked. “Approached the suspect,” not made him fear for his life. “Persuaded him to talk to investigators,” again, no “enhanced interrogation techniques” required. And what do you know, it was all done with Abdulmutallab’s lawyer present.

Score one for the rule of law and the American criminal justice system.

Continuing the Bush / Cheney "War on Terror" Policies

01 Monday Feb 2010

Posted by Craig in Justice Department, Obama, terrorism, torture, war on terror

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Barack Obama, Bush/Cheney, criminals, Glenn Greenwald, Khalid Sheikh Mohammed, Libya, Muammar Gaddafi, New York City, Newsweek, Obama DOJ, poor judgment, Ronald Reagan, rule of law, Salon, terrorist

As someone who voted for Barack Obama in 2008,  I’ve been disappointed in many of the actions of the Obama administration. None more so than their continuation of the Bush/Cheney policies of dealing with those accused of terrorist activities. I expected much better from a president who professed to be something of a Constitutional scholar, and the administration bowing to pressure over the weekend from those who are against trying Khalid Sheikh Mohammed and 4 others in New York City has only renewed that disappointment.

It also didn’t help that, in a Newsweek article on Friday, the Obama Justice Department has, what Newsweek called “downgraded” but a better term would be “whitewashed,” a Bush DOJ recommendation that Jay Bybee and John Yoo should be investigated for committing ethical violations in connection with authoring the 2002 torture memos. The Obama DOJ now calls their actions simply “poor judgment.”

In light of that, Glenn Greenwald has an excellent piece in Salon which is a must-read for anyone who shares my concerns, and which compares the Bush/Cheney policies with those of the current administration. The sad fact being that there isn’t much difference. Greenwald writes:

“From indefinite detention and renditions to denial of habeas rights, from military commissions and secrecy obsessions to state secrets abuses, many of the defining Bush/Cheney policies continue unabated under its successor administration.

...it’s now crystal clear that the country, especially its ruling elite, is either too petrified of Terrorism and/or too enamored of the powers which that fear enables to accept any real changes from the policies that were supposedly such a profound violation “of our values.”  One can only marvel at the consensus outrage generated by the mere notion that we charge people with crimes and give them trials if we want to lock them in a cage for life. Indeed, what was once the most basic and defining American principle — the State must charge someone with a crime and give them a fair trial in order to imprison them — has been magically transformed into Leftist extremism.”

…there is clearly a bipartisan and institutional craving for a revival (more accurately:  ongoing preservation)  of the core premise of Bush/Cheney radicalism:  that because we’re “at war” with Terrorists, our standard precepts of justice and due process do not apply and, indeed, must be violated.

That “Leftist extremism” would by today’s standards include that noted leftist, Ronald Reagan, whose policy on dealing with terrorists, as stated by L. Paul Bremer, the top Reagan State Department official in charge of  Terrorism policies, was this:

“Another important measure we have developed in our overall strategy is applying the rule of law to terrorists. Terrorists are criminals. They commit criminal actions like murder, kidnapping, and arson, and countries have laws to punish criminals. So a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are — criminals — and to use democracy’s most potent tool, the rule of law against them.”

Greenwald also has the just-released policy of another country in dealing with al-Qaeda, along with some quotes from that country’s leader. See who this sounds like:

“_____ will hold up to 300 al Qaeda members in jail indefinitely after they have completed their prison terms to stop them staging fresh attacks.

“These people are heretics. They are followers of (Osama) Bin Laden and Ayman al-Zawahri. They killed a number of civilians and police…It is a necessity to keep them in prison. They are very dangerous as they are ready to resume killing people in our streets here or travel…elsewhere to stage attacks…These people constitute a danger even when the court had pronounced its verdict. Security authorities are the ones who are responsible for this matter to say whether they are dangerous or not. The court verdict is void of reason in such cases.”

The country is Libya. The speaker is Muammar Gaddafi.

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