The ACLU sues the Obama administration

The reason for the suit: “…[T]he release of records related to the U.S. government’s ‘targeted killing’ of U.S. citizens overseas.” The Obama administration has selectively released information regarding assassinations carried out under the targeted killing program, which it otherwise cloaks with claims of national security. The ACLU suit seeks to subject this assassination program to public scrutiny and even legal contestation. Glenn Greenwald pointed to the tyranical aspect of America’s assassination program:

From a certain perspective, there’s really only one point worth making about all of this: if you think about it, it is warped beyond belief that the ACLU has to sue the U.S. Government in order to force it to disclose its claimed legal and factual bases for assassinating U.S. citizens without charges, trial or due process of any kind. It’s extraordinary enough that the Obama administration is secretly targeting citizens for execution-by-CIA; that they refuse even to account for what they are doing — even to the point of refusing to disclose their legal reasoning as to why they think the President possesses this power — is just mind-boggling. Truly: what more tyrannical power is there than for a government to target its own citizens for death — in total secrecy and with no checks — and then insist on the right to do so without even having to explain its legal and factual rationale for what it is doing? Could you even imagine what the U.S. Government and its media supporters would be saying about any other non-client-state country that asserted and exercised this power?

Killing American citizens now sits within the prerogative powers of the American President. This ‘achievement’ ought to be considered a threshold passed on a road that ends in a dictatorship.

The rule of law in America today

Does it exist? Is the United States a Nation of Laws? It is clear that some rules do exist. But do they conform to the spirit and letter of the rule of law doctrine?

Glenn Greenwald thinks not. He recently identified four rules of American justice:

(1) If you are a high-ranking government official who commits war crimes, you will receive full-scale immunity, both civil and criminal, and will have the American President demand that all citizens Look Forward, Not Backward.

(2) If you are a low-ranking member of the military, you will receive relatively trivial punishments in order to protect higher-ranking officials and cast the appearance of accountability.

(3) If you are a victim of American war crimes, you are a non-person with no legal rights or even any entitlement to see the inside of a courtroom.

(4) If you talk publicly about any of these war crimes, you have committed the Gravest Crime — you are guilty of espionage — and will have the full weight of the American criminal justice system come crashing down upon you.

It is thus clear that some Americans are not subject to the rule of law. The rule of law makes sense only when everyone is subject to the same laws. The United States is not a country governed by laws.


Update

David Dayen of FireDogLake walks over some of the same ground as Greenwald:

The Administration has reserved some of its most punitive uses of their prosecutorial discretion for government leakers and whistleblowers. Government information gets leaked all the time, of course, often by official sources doing so on behalf of the Administration for political reasons. But no Administration has prosecuted as many government officials for leaking as this one; in fact, the six criminal cases are more than all other Presidents combined. It has unquestionably had a chilling effect on other whistleblowers. The case against former NSA official Thomas Drake, which thankfully collapsed last year, is the most celebrated of these cases. But the inadequacy of that case has not stopped the Justice Department from continuing to wage war on leakers.

Quote of the day

Seal of the United States Department of Justice

Recently, the American Department of Justice closed the file-sharing site Megaupload while also seizing its assets. It took these actions on the basis on an indictment for and accusation of piracy, not a conviction for committing a crime. This action by the Department of Justice, coming as it does days after the SOPA/PIPA blackout, raises due process concerns, as Megaupload’s counsel asserted here. Glenn Greenwald drew this conclusion from the event, its political implications and from the legal horizon of which the Megaupload closure is a conspicuous part:

The U.S. really is a society that simply no longer believes in due process: once the defining feature of American freedom that is now scorned as some sort of fringe, radical, academic doctrine. That is not hyperbole. Supporters of both political parties endorse, or at least tolerate, all manner of government punishment without so much as the pretense of a trial, based solely on government accusation: imprisonment for life, renditions to other countries, even assassinations of their fellow citizens. Simply uttering the word Terrorist, without proving it, is sufficient. And now here is Megaupload being completely destroyed — its website shuttered, its assets seized, ongoing business rendered impossible — based solely on the unproven accusation of Piracy.

Daily, it seems, Americans can watch the rule by law replace the rule of law, the prerogative state replace the normative state [Fraenkel, 2006 (1941)].

A dictatorship gestating

Reuters reports that (h/t to Glenn Greenwald who wrote about this matter):

American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.

There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

And:

The role of the president in ordering or ratifying a decision to target a citizen is fuzzy. White House spokesman Tommy Vietor declined to discuss anything about the process.

The United States murders an American citizen

An armed drone finally killed Anwar al-Awlaki, an American citizen whom the Obama administration had marked for death. Mr. Awlaki’s murder becomes another milestone passed by the American political system in its effort to replace the rule of law by the rule by law.

Another case of reactionary hypocrisy

Andrew Levine wrote:

The hypocrisy is staggering. There was hardly a peep of complaint in proto-Tea Party quarters about executive orders — or, worse, signing statements — when George W. Bush abused those practices at historically unprecedented levels. The right’s newfound aversion plainly has more to do with hating Barack Obama (for all the wrong reasons!) than political principles.

Executive Orders and executive Signing Statements are bad. They are attempts by the executive to rule by decree. The problem Levin identified is the reactionary effort to deny this kind of power to a Democratic President while reserving that power for the Republicans.

A nation of laws tortures anyone? (Updates)

Update (4.24.2011)

Glenn Greenwald’s gloss on Obama’s Manning statement contained in the video above has Greenwald taking Obama to task for his legally dubious behavior:

It may be that Obama spoke extemporaneously and without sufficient forethought, but it is — at best — reckless in the extreme for him to go around decreeing people guilty who have not been tried: especially members of the military who are under his command and who will be adjudged by other members of the military under his command. Moreover, as a self-proclaimed Constitutional Law professor, he ought to have an instinctive aversion when speaking as a public official to assuming someone’s guilt who has been convicted of nothing. It’s little wonder that he’s so comfortable with Manning’s punitive detention since he already perceives Manning as a convicted criminal. “Sentence first – verdict afterward,” said the Queen of Hearts to Alice in Wonderland.

POLITICO suggests that Obama had what can be characterized as a Reagan Moment, that is, an instance in which the President of the United States utters nonsense or makes claims contrary to law and fact.

Update II (4.25.2011)

Kevin Zeese has provided an elaborate discussion of the problem with Obama’s Reagan Moment:

The credibility of the military justice system is being undermined by the prosecution of Bradley Manning. His abusive punishment without trial violates his due process rights; his harsh treatment in solitary confinement-torture conditions violates the prohibition against cruel and unusual punishment; and now the commander-in-chief has announced his guilt before trial making a fair trial impossible. A Bradley Manning exception to the Bill of Rights is developing as the Obama administration seeks Manning’s punished no matter what constitutional protections they violate.

Zeese continues:

President Obama’s pronouncement about Manning, “He broke the law,” amounts to unlawful command influence – something prohibited in military trials because it is devastating to the military justice system.  Manning will be judged by a jury of military officers in a military court where everyone involved follows the orders of the commander-in-chief.  How are these officers going to rule against their commander-in-chief, especially after Manning has been tortured in solitary confinement for almost a year?  Any officer who finds Manning “not guilty” will have no chance of advancing his career after doing so.

Article 37 of the Uniform Code of Military Justice makes undo command influence unlawful. Unlawful Command Influence has been called “the carcinoma of the military justice system” and is often described as “the mortal enemy of military justice.” The importance of the command structure in the military makes command influence a threat to fair trails, i.e. “because the inherent power and influence of command are necessary and omnipresent facets of military life, everyone involved in both unit command and in military justice must exercise constant vigilance to protect against command influence becoming unlawful.”

Accordingly, “Unlawful Command Influence occurs when senior personnel, wittingly or unwittingly, have acted to influence court members, witnesses, or others participating in military justice cases. Such unlawful influence not only jeopardizes the validity of the judicial process, it undermines the morale of military members, their respect for the chain of command, and public confidence in the military.”  Further, even: “The ‘appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial.’”  The commander-in-chief announcing guilt before trial is an unprecedented case of unlawful command influence.

So, what effect will these legal rules have on the disposition of Manning’s case? They are likely to have no effect at all.