Last week, GAP filed a FOIA request with the Justice Department for the secret Office of Legal Counsel (OLC) memo authorizing the assassination of radical Muslim cleric and American citizen Anwar al-Awlaki. There is no doubt that the release of the memo is in the public interest, as GAP's FOIA request articulates:
The U.S. government's killing of American citizen and alleged al-Qaeda operative Anwar al-Awlaki is a matter of public interest, which the President himself addressed. More specifically, the government's legal justification for killing al-Awlaki has sparked national and international debate. The legal reasoning behind controversial government actions – especially those that take the lives of American citizens – is a matter of public interest, and should be a matter of public discourse. (Footnotes omitted).
In the time since GAP filed its FOIA request, the New York Times reported extensively on the memo's content, and the public debate over the legality of killing al-Awlaki intensified. Yet, despite the fact that much of the memo's reasoning appeared on the Times front page on Sunday, the Obama administration has refused to make the memo public, and thus, it has avoided answering hard questions about the justification for the killing.
Even individuals and organizations who argued that the al-Awlaki assassination was justified – such as the Washington Post and former OLC attorney Jack Goldsmith – have called for President Obama to make the memo public. Public discourse is vital for our democracy. The Obama administration touts its commitment to transparency and openness, and such a commitment is most needed when the President makes controversial decisions, like the one to target and kill an American citizen.
Kathleen McClellan is National Security and Human Rights Counsel for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.
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Former Justice Department attorney Martin Lederman – a leading critic of George W. Bush's policies on torture, black sites, and rendition – was one of the authors of the legal memo justifying the assassination of American radical cleric Anwar al-Awlaki without due process. Though the memo is still secret and Obama administration officials refuse to answer for it on-the-record, the New York Times reported on the memo's content in detail based on sources who had read it. The memo's authors used a lot of the same flawed Bush-logic used to justify the programs Lederman once condemned.
My organization– the Government Accountability Project – was the first to publicly file a request for the memo under the Freedom of Information Act.
I pointed out the flawed rationalizations for the assassination in my Kos diary Sunday:
1) Al-Alwaki was taking part in the war between the United States and al Qaeda and posed a significant threat to Americans--though he never picked up arms against the U.S.;
2) Yemeni authorities were unable or unwilling to stop him--which is contradicted by Yemen's bragging that they gave us information to geo-locate him that was precise enough for a drone attack;
3) Al-Alwaki had evolved from being a "propagandist" to playing an "operational role" in al Qaeda--an assertion made for the first time ever by Obama after we killed him;
4) he was a "co-belligerant" (another Bush term for "enemy combatant"); and, taking a page directly from John Yoo,
5) the Authorization to Use Military Force against al Qaeda that Congress enacted shortly after 9/11 allowed this because al-Awlaki was a lawful target in the armed conflict.
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Josh Gerstein of Politico reported that U.S. District Court Judge Leonie Brinkema approved the Justice Department's use of the constitutionally-questionable "silent witness rule" in the Espionage Act case against former Central Intelligence Agency (CIA) official Jeffery Sterling.
The controversial "silent witness rule" is an impediment to a defendant's constitutionally-guaranteed right to a public trial. The silent witness rule allows the witness, judge, jurors and attorneys to see evidence, but requires attorneys to question witnesses about the secret evidence in a secret code. Members of the press or public attending the trial will not understand what is happening in a supposedly "public trial."
Sterling's attorneys opposed use of the silent witness rule:
. . . the silent witness rule and the other security measures that the Government seeks to use are highly prejudicial to Mr. Sterling and deprive him of his right to a fair trial and violate his confrontation rights as guaranteed by the United States Constitution.
The Justice Department also tried use the silent witness rule in the case against National Security Agency (NSA) whistleblower Thomas Drake, but the Justice Department's case collapsed in a glaring defeat before the Judge could rule on the silent witness rule motion.
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Here's what my son just learned in 7th grade civics:
The Due Process Clause of the Fifth Amendment is in many ways the backbone of the rights guaranteed by the Constitution. Due process is the simple notion that the Constitution requires governmental procedures to be fundamentally fair before a person may "be deprived of life, liberty or property."
The Obama administration's "justification" for the targeted assassination of Anwar al-Aulaqi--an American radical cleric who was killed by a U.S. drone strike yesterday--is that "What constitutes due process in this case is a due process in war," which is apparently no process at all.
If any presidential administration is going to commit controversial, and by all standards I can find, illegal, acts (like the targeted killing of an American citizen outside the United States who is suspected of terrorism), then it should be forced to articulate publicly its rationale, not hide behind some secret memo--that's so George W. Bush.
Under the Bush administration, and now the Obama administration, the due process guarantee is losing force as it has historically in times of national security crises.
"Due process in war" means no due process. Once again, anonymous government officials roll out the meme that governmental excesses are reasonable and necessary during times of war.
How's that been working for us? During World War I, the government imprisoned people for years for speaking out against the war effort. During World War II, the infamous and shameful Korematsu case endorsed the internment of more than 110,000 persons based solely on their Japanese ancestry. During the Cold War thousands of innocent people lost their jobs, were the subject of congressional investigations, or were incarcerated for their association with the Communist Party.
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WaPo's editorial board suggests today that courts should abandon the one iota of accountability for cabinet-level Bush-era officials who authorized torture. The editorial questions a court's decision that American contractors and whistleblowers Donald Vance and Nathan Ertel are permitted to sue former Defense Secretary Donald Rumsfeld.
The lawsuit is based on claims that while Vance and Ertel were working as contractors in Iraq, the U.S. military kidnapped them, detained them without process, and tortured them using the "enhanced interrogation techniques" that Rumsfeld personally approved. Usually cabinet-level officials have immunity from lawsuits, but, in August, the fairly-conservative Seventh Circuit Court of Appeals found that the alleged conduct - the kidnapping and torture of American citizens - was so egregious that suit against Rumsfeld could proceed.
While WaPo's editorial acknowledges that "it may be ultimately wrong" to bar Vance and Ertel from seeking justice in the courts, WaPo accuses the Seventh Circuit of overstepping its authority:
But the court overreaches by creating expansive new rights that are not supported by precedent and that would best be weighed by Congress.
WaPo suggests that Vance and Ertel should have "pressed their claims through the military justice system," and if that failed, then Congress should provide a remedy. Congress appears too busy fighting about how to keep the U.S. from defaulting on trillions in debt and bickering over when Obama will give his next speech. WaPo's suggestions would not only mean no justice for Vance and Ertel, but also - yet again - no accountability for the high-level officials who orchestrated torture policies.
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Newly-released FBI documents reveal that the FBI's "terrorist watchlist" – which now has "420,000 names, including about 8,000 Americans" – includes individuals who are not the subject of any investigation, and some who the courts have cleared of terrorism charges. This is the latest in a series of recent revelations about the FBI's increasing monitoring and investigation of potentially-innocent Americans.
Placing innocent persons on a "terrorist watchlist" raises serious concerns. There are the obvious civil liberties concerns, well articulated in the New York Times by Ginger McCall, a counsel at the Electronic Privacy Information Center – the organization that obtained the documents:
In the United States, you are supposed to be assumed innocent. But on the watch list, you may be assumed guilty, even after the court dismisses your case.
Not only are we yet again expected to sacrifice our liberty, but the FBI is wasting precious national security resources maintaining a list of "terrorists" that includes individuals cleared by the courts. It does not serve national security for the FBI to track innocent people.
Moreover, being on a watchlist is more that simply having the government label you a "terrorist" – as if that is not enough of an affront to a person's freedom. I know from experience. After I blew the whistle in the Justice Department, the government placed me on the "selectee" portion of the no-fly list.
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Despite the Obama administration's proclaimed commitment to transparency, the administration's approach to national security policy continues to send mix signals.
According to two members of the Senate Intelligence Committee, under Obama, we have a secret court (Foreign Intelligence Surveillance Court) issuing a secret interpretation of a law (Section 215 of the PATRIOT Act) that gives the Federal Bureau of Investigation (FBI) the power to collect information on individuals in secret.
Section 215 of the PATRIOT Act, known as the "business records" provision, allows law enforcement to obtain "any tangible thing" that is relevant to an international terrorism or espionage investigation. Section 215 allows collection of information on individuals who are not target of a criminal investigation or even suspected of criminal activity. And, Section 215 orders come with a gag order prohibiting the recipient – which could be your library, your bank, your credit card company, or any other private entity – from disclosing receipt of the order.
However, this is just what we know from reading the statute. Senators Ron Wyden (D-OR) and Mark Udall (D-CO) commendably sent a letter to Attorney General Eric Holder sharply criticizing the Justice Department's use of a secret interpretation of surveillance powers, and accusing the Justice Department of misleading the public:
. . . we have been concerned for some time that the U.S. government is relying on secret interpretations of surveillance authorities that - in our judgment - differ significantly from the public's understanding of what is permitted under U.S. law. . . . Justice Department officials have - on a number of occasions - made what we believe are misleading statements pertaining the government's interpretation of surveillance law.
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