‘Inadvertence’

The federal government's song-and-dance to avoid any public scrutiny of the charges in a terrorism case in Chicago has danced right outside the pale... and the appeals court is having none of it. Kevin Gosztola of FDL:

A federal appeals court in Chicago ordered a redo of an oral argument in a case where the government filed an appeal against a defendant’s access to secret surveillance records.

Adel Daoud, a young Muslim who was arrested outside a Chicago bar in an undercover FBI sting operation, is charged with “attempting to use a weapon of mass destruction” and “attempting to destroy a building by means of an explosive.” A district court judge granted his defense team access to “foreign surveillance materials” under the Foreign Intelligence Surveillance Act (FISA), which was unprecedented.

On June 4, the 7th Circuit US Court of Appeals held argument on the government’s case for why the district court’s ruling should be reversed. The “public argument” part of the hearing was not recorded.

“By inadvertence, the device that makes a sound recording or the oral arguments of our cases was not turned on for the public argument in this case on Wednesday,” according to a court order issued on June 6. The court scheduled a new argument for June 9.

A do-over was ordered to dispel any perception of corruption.

...

"By inadvertence"? Awwww, gimme a break! If this was not a deliberate attempt to disrupt "a speedy and public trial, I'll eat my Uncle Sam red-white-'n'-blue hat. Clearly there is a policy... a secret policy... that no terrorism trial that comes before the FISA court or any appeal of such a trial will ever allow even the possibility of acquittal, even if that means running a drumhead trial in which the defendant's rights are not merely denied but just plain not even considered.

To repeat myself: this is not the United States of America I grew up in. After W.W.II, even the worst Nazis were subjected to fair trials in international courts. Now, the US will not even protect a terrorism defendant's constitutionally explicitly enumerated due process rights. The entire Obama administration should be ashamed of itself! Ashamed!

Extraordinary Rendition: It's Not Just A Bush-Cheney Thing

Kevin Gosztola of FDL, yesterday:

Rendition of Libyan Terror Suspect: What If Abu Anas al-Liby Had Nothing to Do With the Embassy Bombings?

By: Kevin Gosztola Monday October 14, 2013 8:11 pm

A Libyan terror suspect kidnapped from Libya in a raid by US special forces on October 5 was transferred from the naval ship, where he was being detained and interrogated, into “law enforcement custody” over the weekend.

The Justice Department indicated in a press release that he was “brought directly to the Southern District of New York, where he has been under indictment for more than a decade.” He was expected to be brought before a judge on October 15.

Al-Liby is suspected of being involved in the bombings of US Embassies in Kenya and Tanzania in 1998.

Last week, a chief federal public defender, David E. Patton, according to the Los Angeles Times, had pressed a federal judge to order that he be “brought to court immediately,” as he was aboard a ship being interrogated by the High Value Detainee Interrogation Group, which is a special task force of personnel from the Pentagon, FBI, CIA and other agencies. He had not been read Miranda rights, which he and other terror suspects have a right to be read if they are being prosecuted under US law. But a federal judge would not issue such an order and would not appoint a defense lawyer to represent him either.

A more critical issue is that al-Liby, whose real name is Nazih Abdul-Hamed al-Ruqai, may not be the dangerous al Qaeda terrorist the United States government believes he happens to be.

...

Please read the rest of Gosztola's post. It is a case study in our government's unconstitutional (indeed un-American) actions in extraordinary rendition cases.

I have read the Bill of Rights many times. I skimmed it one more time before writing this post. And with the possible exception of the 10^th Amendment (and it's hard to tell on that one), none of the enumerated rights apply only to US citizens. In particular, in this case, foreigners retain judicial due process rights as surely as citizens.

In spite of this, we see extraordinary rendition inflicted not merely by the admittedly evil George W. Bush and Dick Cheney but also by the allegedly more moderate Barack Obama. Refusing to read Miranda rights as a protection of due process? moderate? refusing to appoint a defense attorney? moderate? Not hardly! Our nation's founders are surely spinning in their graves.

And remember, this is process for a man who appears (to some people at least) to be trying to cooperate with the government... to be sure, acting in his own best interest (that's his right), and possibly having been a terrorist (that's to be determined by trial, not merely assumed without trial), but apparently trying to cooperate.

If our courts begin abducting people who are trying to cooperate (perhaps to prevent their testimony?), if our courts begin denying due process rights (guaranteed by our Constitution not just to citizens, but to people in general when under US jurisdiction), what possible confidence can we have that they will not turn the same extreme measures against American citizens when they find it convenient? And... what a time to decide to do this, while most of us are distracted by the government shutdown!

Niemöller nailed it in 1946, though he was speaking about German Nazis... in one variant, "First they came for the Jews..." Well, now they're coming for the alleged terrorists, and I'm damned if I will remain silent. Even a terrorist deserves a fair trial. Even a terrorist deserves a defense attorney.

UPDATE: from an AP article:

WASHINGTON (AP) -- Four years after his failed effort to bring the 9/11 mastermind to New York for trial, President Barack Obama has reinstated the federal courthouse as America's preferred venue for prosecuting suspected terrorists.

His administration has done so by quietly securing conviction after conviction in the civilian judicial system. Meanwhile at Guantanamo Bay, admitted 9/11 mastermind Khalid Sheikh Mohammed's case moves at a snail's pace.

...

Right. It's amazing how many convictions you can obtain if you refuse to appoint a defense attorney...

Family Values, The Family Bates, The Family Al-Awlaki, Secret Courts, Drone Assassinations, And Trial By Internet

Eighteen years ago about this time of year my dear and much-admired father passed from this earth. When I had dealt with my grief sufficiently to be more philosophical about his death, I occasionally remarked that Bill Bates managed to stave off death until a Democrat held the big chair in the White House and Dad's beloved Houston Rockets held the NBA championship, assuming rightly or wrongly that the world could do without him in light of the trend of improvement he observed in his last year or two. Dad passed with no worries that I would be secretly ordered assassinated, let alone by the President of the United States.

Nasser al-Awlaki, father of Anwar al-Awlaki (American citizen, assassinated by an American drone in September 2011), grandfather of Abdulrahman al-Awlaki (American citizen, assassinated by an American drone in October 2011), was not so fortunate. As we were informed by Nasser's NY Times op-ed a couple of days ago, he learned of the deaths of his son and grandson by news reports. Though both his son and his grandson were American citizens (the grandson by birth, in Denver), neither was afforded the constitutionally required "speedy and public trial": they were on an Obama administration list of people targeted for assassination by drone, and b'gawd they were assassinated by drones. Despite Nasser's repeated legal inquiries, he has received no meaningful response to his queries about his son's and grandson's deaths; it seems he lacks legal "standing" to ask. The op-ed is very moving. You will understand the fundamental wrongness of the process, or rather the absence of due process, much better if you read Nasser's words. Here is a sample:

...

... I stood over it [his grandson's grave], asking why my grandchild was dead.

Nearly two years later, I still have no answers. The United States government has refused to explain why Abdulrahman was killed. It was not until May of this year that the Obama administration, in a supposed effort to be more transparent, publicly acknowledged what the world already knew — that it was responsible for his death.

The attorney general, Eric H. Holder Jr., said only that Abdulrahman was not “specifically targeted,” raising more questions than he answered.

My grandson was killed by his own government. The Obama administration must answer for its actions and be held accountable. On Friday, I will petition a federal court in Washington to require the government to do just that.

...

The NY Times often selects a reader's letter to publish first, a letter that seems to the editors to typify the opposition to an article. In this case, the published response letter was from "Ben" in Cincinnati, who had this, among other things, to say:

...

It would be good to know why the grandson was targeted, but revealing any information must be weighed against the concurrent problems in making any intelligence available. It is obvious that any grandfather would pine for the memory of his son and grandson.

But It is highly disingenuous that an intelligent man writes so many words yet makes no mention whatsoever of the actions or rhetoric of his son, which were published on the Internet for all to see. He says that he loves the United States, its universities, and its national parks. How about its people? What did he feel, say, or do, when hearing his son advocating the death of American people? Was he really suprprised when the country came after his son?

...

Bill Bates, may he rest in peace after experiencing as a combatant the horrors of war in his lifetime, lived long enough to see the first flowering of the Internet. As he was the person who initially taught me about the Constitution and the Bill of Rights, he would have been fascinated with what is available on the 'net today regarding those two documents and their application in these troubled times. But I am afraid I would not be able to explain to him Ben in Cincinnati's reference to trial by Internet; I just can't find it in the copies of the Constitution available to me.

Call me a terrorist if you want... if I live long enough, I'm certain one or another American government will call me such... but I have to agree that grandfather al-Awlaki has a right to his answers from the DoJ, unabridged, justified as best they can. Goodness knows I cannot for the life of me see any justification for killing anyone, let alone any American, far from any combat zone merely because they verbally advocated killing Americans when Americans had recently killed their own son father.

And to think I've been counting on that "free speech" thingy to save me...

UPDATE: 7/19/2013 the judge declined to rule immediately on the DoJ's motion to dismiss grandfather al-Awlaki's petition, expressing grave reservations about the government's claim that no court could reach the matter:

U.S. District Judge Rosemary Collyer did not immediately rule on a government request to dismiss legal challenges to the killings of three Americans, including al-Qaeda leader Anwar al-Awlaki and his 16-year-old son, brought by civil rights advocates and Anwar's father, Nasser al-Awlaki. But she strongly questioned the government's assertion that the courts were "not in a position to second-guess'' security officials when faced with an imminent threat.

Read the rest of the USA Today article and/or Judge Collyer's ruling, and stay tuned; I'll try to report when I have more information.

How Does Obama Really Feel About His Drone 'Kill List'? And Will It Pass To The Next President?

Kevin Gosztola of FDL's The Dissenter reveals that "an unnamed official with the Obama administration" told Scott Shane of the New York Times that in seeking to answer that question, the Obama administration contemplated the very real possibility that the levers of power might pass from Obama's to Rmoney's hands, and sought to codify and restrict the targeted assassination powers. From Shane's article:

...

... With a continuing debate about the proper limits of drone strikes, Mr. Obama did not want to leave an “amorphous” program to his successor, the official said. The effort, which would have been rushed to completion by January had Mr. Romney won, will now be finished at a more leisurely pace, the official said.

...

Gosztola's concerns are much like my own:

...

The revelation is remarkable in that it shows GOP presidential candidate Mitt Romney—not the fact that the power to extrajudicially kill people suspected of committing or having ties to terrorism was being claimed—was why the administration began to have increased concerns over drone warfare.

...

Clearly there needs to be a formal policy in place regarding targeted assassinations using drones: they are sloppy weapons liable to kill far more people than the intended target, and in those few cases where the targeted person has been an American citizen, that citizen had no opportunity for a trial, a proof of his/her guilt before a court of law, and a formal sentence by such a court. In other words, if drone use were not bad enough on the grounds that America is murdering babies, it is still worse because it is used unapologetically to violate the Fourth Amendment. All of this needs to be thought out, debated and decided by a team of advisors not given to thinking in lock-step with the president.

That said, drone warfare is liable to continue and even increase into the indefinite future, including, yes, into a Republican presidency, if indeed that would be any worse. (I always said Obama is the lesser evil, not that he is not capable of evil.) If this haphazard, cowboy-shoot-first attitude continues, it will not be long before America has no friends among the nations and leaders of the world... and who can blame them. We need three things: real rules in place and implemented in the field, clear accountability for every drone strike, and... most of all... transparency. These acts are being committed in my name, and in yours if you're an American citizen: you deserve to know as specifically as possible who is being killed and why, what their nationality is, if they are noncombatants, whether their due process rights were preserved, and who dies as "collateral damage" from this most indiscriminate of weapons.

And Mr. Obama... well, he needs to pull out the book from which he used to teach Review of Constitutional Law (or whatever it's called), and spend some time with his nose in it. Apparently he's forgotten some things. Apparently, many of the rest of us have forgotten those same things. It's time for a serious review of the rightful limits on presidential power.

On History Repeating Itself With Scarcely A Mumble

Japanese Internees

I have been reading the late lamented Studs Terkel's "The Good War", his book about (as he spells it) World War Two. The quote marks, says Terkel, are part of the book's title, because that's what some people called it, but the phrase, of itself and without quote marks, is an oxymoron. Have I mentioned how much I miss the lively, vibrant Terkel in his long and well-lived life? Few people elicited my unreserved admiration as he did.

Horse Stables as Internee Residences

In an early chapter, Terkel interviews Japanese-Americans who in various ways and degrees experienced the internment. Japanese-Americans' businesses were seized; some were surveilled individually by FBI agents (not all willing agents, as it turns out) and many... far too many... American citizens were arrested and interned in camps of various sorts; one described in the book was a stables, complete with all the smells and utter lack of personal privacy. Families were broken up, men and older boys confined in one place and their wives and daughters in another. The resemblance to slavery, another historical practice of our "home of the free and the brave," was all too graphic and obvious. Some 110,000 Japanese-Americans and Japanese legal residents on the American Pacific coast were interned; a much smaller number of those in the Hawaiian Islands, where a large fraction of the total population were of Japanese ancestry, were also interned. Internment took place in other states as well, applied "unequally" as described by the wiki. Military rule was instituted; civil liberties were largely squelched... both with the blessing of the Supreme Court. No American apology was forthcoming until October 1993, when President Bill Clinton at long last issued one.

Fast-forward to September 2001, and refocus on Houston, TX, on an apartment complex housing an odd blogger/musician/etc. and his mate. A family living near me were Muslim, scarcely a surprise in a city boasting one of the best and largest medical centers in the nation... we have all kinds of nationalities and religious affiliations among our residents, many of them students in advanced fields, and most Houstonians like it that way.

Guantánamo Detainees

I will call the couple "Mary and Joseph," mainly to annoy any jeebus-botherers who may be lurking about. They had two lovely, very young children. Both had good jobs in Houston. Within a few weeks of 9/11/2001, it became apparent to them that things were not going to return to normal in America for our Muslim residents. Fortunately for them, unfortunately for us, Joseph was Canadian by birth. When the handwriting was on the wall and John Ashcroft & Co. were at their most strident, even before Guantánamo was known for what it is today, the couple decided that life in America was about to become very difficult for Muslims, be they citizens or (especially) not, even basically apolitical Muslims like themselves. Rumors of possible internment, ultimately never realized in mass quantities, were all too plausible at the time. Nasty remarks were occasionally leveled at the children, who were probably just old enough to understand what was going on. So Joseph contacted his family in Canada, and the whole family packed up and moved home, rather than face what America had in store for Muslims. I don't blame them one bit. The whole incident was America's loss.

How many more times will America alienate... word chosen very deliberately... members of its population who do not suit the current majority's opinion? If, say, Rmoney were to become president, what would he order done to the 47% he spoke so ill of, and how far would his exclusionary policies reach, among Americans and generally desirable noncitizen aliens?

Our nation's ancestors surely turn in their graves every time an American government undertakes to divide, suppress and exclude some of us from the body politic. I believe we owe those ancestors a debt, payment of which means putting a stop to all the exclusion so popular in certain political circles. Either it stops, or America goes to ground, at least the America descended from those founders. Rmoney and crew may be prepared for that. I most emphatically am not.

ACLU Challenges Government Classification Of Every Word Detainees Speak In Gitmo Trials

What's classified in a Gitmo detainee's trial? No less than every word spoken by a detainee. Yep. Everything a defendant says is presumptively classified, notwithstanding the Sixth Amendment's guarantee of a "speedy and public trial." So much for the "public" part! Read what Pro Publica's Cora Currier documents for us. Here's Currier on the ACLU's action:

...

The ACLU filed a brief in May saying that the government’s order of presumptive classification and the forty-second delay [in the livecast of trials to American news agencies] violate the public’s right of access to the trial. The ACLU’s motion takes issue with the idea that the government has declared detainees’ “personal knowledge of their detention and treatment in U.S. custody” classified. Their exposure to classified information was forced upon them, the ACLU states, in CIA detention and interrogation programs that are now outlawed.

The ACLU argues that an executive order on classification signed by Obama in 2009 says in part that, in order to be properly classified, information must be “under the control of the United States Government.” The ACLU’s brief challenges whether that authority could be extended “categorically to human beings under the government’s control.” [emphasis in original]. The ACLU also argues that the detainees were not in any kind of contractual relationship which would make them liable for the classified information they were exposed to.

...

It's just another battle in the bipartisan war on rights and liberties.

Once again, we need to remind our leaders that the Bill of Rights is written to apply to all persons, not just citizens. That fact and five bucks will get you a frappuccino at Starbucks...

Newsy Video On DISCLOSE Act Followup; Another On ACLU And Family Lawsuit Over Awlaki Death

Derek Hamm of Newsy Community has requested in an email that I embed a video they have made on the DISCLOSE Act failure. Instead, I'll refer you to the Newsy site for the video. It's a good video, but I'm trying to spare some of my lower-bandwidth readers, and I've already posted several videos still on this current main page, so you can watch it over there instead.

UPDATE:  I am indebted to newsy.com for informing me of the lawsuit by the ACLU and the family of Anwar Al-Awlaki against the US government for the assassination of Awlaki and his 16-year-old son in a targeted drone strike. You may recall from my earlier posts that Awlaki was an American citizen not engaged in any battlefield action against American troops at the time of his assassination, and therefore should have been captured and put on trial for any alleged acts of terrorism. Instead, his name was added to President Obama's "kill list," and with no trial, no arrest and not even any showing of probable cause, he was assassinated. As I've said before, this is as un-American as it gets; our nation's founders are surely turning in their graves.

Greenwald On 'Tea Party "Treason"'

Glenn Greenwald at Salon asks the highly controversial question, "What powers should the president have against those who [verbally] advocate open, violent revolt against the U.S. government?" The answer seems to depend

• first of all, on whether you are a Muslim (even if you are a US citizen... cases in point, Anwar Al-Awlaki, citizen and Muslim, as vs. Mississippi Tea Party Chair Roy Nicholson, citizen and non-Muslim, who has similarly made some radically anti-government statements),
  
  
• second, whether there is any sustainable analogy between presidential extrajudicial assassination orders against American citizens far from any battlefield and Lincoln's orders to kill rebels in the Confederate army (who, though arguably American citizens, were nonetheless soldiers in uniform engaging in battles of a systematic insurrection against the USA), as frequently asserted by neocons,
  
  
• and finally, whether individuals who are not charged with any crime against the United States but who associate with and possibly assist the likes of WikiLeaks and Julian Assange, may be, systematically, secretly and without a warrant, surveilled by the FBI (case in point, Jacob Appelbaum, an activist whose internet provider has been harassed with no fewer than 23 "national security letters" of which that ISP was not permitted to inform Appelbaum, thus arguably a failure "to be informed of the nature and cause of the accusation" [a Sixth Amendment right]).

Be sure to watch the video in which Appelbaum, through incisive questions, pins a DoJ/FBI representative to a very uncomfortable assertion of support in the law for essentially secret and warrantless demands for documents from Appelbaum's ISP. It is chilling to hear these things said out loud by such a spokesperson, who apparently believes the statute (I presume some part of the PATRIOT Act) prevails over the Fourth Amendment.

Manning Defense Accuses Prosecution Of Making'An Outright Misrepresentation', Refusing Disclosure

Welcome to American military justice, where the trial you get is the trial the prosecution wants you to have. From the Guardian:

...

Reports by the Associated Press, Reuters and other news outlets have suggested that official inquiries into the impact of WikiLeaks concluded that the leaks caused some "pockets" of short-term damage around the world, but that generally its impact had been embarrassing rather than harmful.

Such a finding could prove invaluable to the defence in fighting some of the charges facing Manning or, should he be found guilty, reducing his sentence.

Yet Coombs says the army prosecutors have consistently kept him, and the court, in the dark, thwarting his legal rights to see the evidence.

"It was abundantly clear that Oncix had some form of inquiry into the harm from the leaks – but the government switched definitions around arbitrarily so as to avoid disclosing this discovery to the defence."

...

Has the prosecution received a secret order, maybe from the Commander-in-Chief, to win this one at any cost? If so, the cost seems to be the protections traditionally afforded defendants in America's military as well as civilian justice systems.

It will be highly ironic if Manning is convicted, manages to appeal, and has the conviction overturned on due process grounds. But I suspect that, too, has been "taken care of". Ain't America great? [/snark]

Remember Habeas Corpus? Remember Boumediene vs. Bush?

Apparently, the DC Circuit Court of Appeals doesn't remember either of those things, and even the Supreme Court's memories are... selective. Here's Ryan Cooper at Washington Monthly:

Back in 2006, Congress passed the Military Commissions Act, which abolished habeas corpus rights for noncitizens, among other things. This part of the law was overturned in 2008 by the Supreme Court in Boumedi[e]ne vs. Bush as unconstitutional.

Today, it looks like the Supreme Court gave up on that line of reasoning. Marcy Wheeler reports:

SCOTUS has just declined to take all seven of the pending Gitmo habeas corpus petitions, including Latif and Uthman.

This effectively kills habeas corpus.

The problem here, as Mother Jones’ Adam Serwer puts it, is that the “conservative judges on the D.C. Circuit have interpreted the law in a way that assumes many of the government’s claims are true and don’t have to be proven in court.” Or as the Center for Constitutional Rights puts it:

Today’s decision leaves the fate of detainees in the hands of a hostile D.C. Circuit Court of Appeals, which has erected innumerable, unjustified legal obstacles that have made it practically impossible for a detainee to win a habeas case in the trial courts. The D.C. Circuit, the country’s most conservative court of appeals, has reversed every detainee victory appealed to it by the government, and as consequence, district courts in D.C. have ruled in favor of detainees in only one of the last 12 cases before them.

(Ryan Cooper offers examples after that.)

This is really bad news. The right of habeas corpus predates the founding of America by several hundred years, and denying habeas is one way to remove a major burden of proof from the government that there is a reason the accused should be detained. It is only a slight stretch to say that detainees denied habeas start out already halfway to "guilty". The Supreme Court has indeed ruled on this matter in Boumediene, but it appears the federal courts, including the Supremes, are going to wink and look the other way at violations against alleged terrorists.

No matter how badly you want a conviction of an actual terrorist, if you accept the tweaking of the most ancient aspects of our system of justice, those tweaks will bite you in the butt someday. Either everyone, citizen and noncitizen, receives due process, or no one, citizen or noncitizen, truly enjoys due process rights. "Splitting the difference" just because it's a terrorism case is, quite simply, un-American.

The most regrettable aspect is that so many Americans... Democrats included; mark my words... are perfectly content to allow this kind of rigging of trials to make sure every alleged terrorist is convicted. I know such a person, a friend of Stella's, a Democrat, a baby-boomer, Jewish; i.e., someone who remembers what happened to Jews in the Holocaust... and she is still just fine with this kind of tampering with justice in terrorism cases.

I predict that all significant due-process rights will be effectively dead no later than the 2016 presidential elections... no matter who is elected President this November. We're screwed.

Tom Tomorrow: 'How A Secret Memo Justifies A Kill List'

... or "Schoolhouse Rock, the Sequel." 'Nuff said... view it and weep.

Bradley Manning's America: Land Of The (Indefinitely Detained), Home Of The (Too Cowardly To Grant A Fair Trial)

Bradley Manning is a man imprisoned without charges for a year after his arrest, finally charged with enough crimes to assure his imprisonment for life if convicted, and now, according to his defense team, denied discovery of exculpatory evidence for almost a year to date. Please read the details; even the bare facts are disgusting. This is not how America claims to treat its accused... at least not the America I grew up admiring.

"Show trial." "Drumhead." Call it whatever you want; it is obvious that Bradley Manning will ultimately be convicted on all charges, and exculpatory evidence will never be disclosed. Is the clear message "don't leak secrets"? In my opinion, it's more like "don't make Barry Obama and his buddies look bad." Your mileage may vary.

Maybe you've got the goods on Barry and his boys, but if you leak, your ass is going to jail, probably for life... fair trial be damned.

Is Manning guilty of the nearly two dozen charges against him? We'll never know. The world will never know.