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President Obama vs. his administration’s legacy

9:34 am in Uncategorized by Shahid Buttar

President Obama’s speech yesterday, presenting his vision of a comprehensive counter-terrorism strategy, included welcome rhetoric about the importance of constitutional principles, including Due Process and rights to dissent. It may represent the high watermark for civil liberties since his inauguration five years ago.

It is disappointing, given his thoughtful words, that he ignored so many inconvenient truths. From extrajudicial assassination to free speech and freedom of the press, from the need to address root causes of terrorism to partnership with American Muslims, the president promoted important principles but papered over reality.

The reaction by Republican senators was even worse. Senator Saxby Chambliss (R-GA) foolishly suggested that “The president’s speech today will be viewed by terrorists as a victory,” and suggested doubling down on many of the same failed Bush-era policies from which President Obama finally signaled long overdue independence yesterday.

Due Process: Gitmo

The president forcefully spoke about the need to close Guantánamo Bay, and also lifted his moratorium on releasing Yemeni detainees whom the government has cleared for release, despite the clamor among conservative lawmakers who prefer to indefinitely detain anyone accused of terror without trial.

Yet the president’s words reflected important principles that his own administration has routinely violated. Col. Morris D. Davis, the former chief military prosecutor at Guantánamo who resigned his position to challenge torture (and serves on the BORDC advisory board), agreed that “It’s great rhetoric. But now is the reality going to live up to the rhetoric?”

The president criticized restrictions on resettling detainees cleared for release imposed by Congress early in his administration. But he has the authority to resettle those detainees through a separate process, if he were willing to certify the release of particular individuals—which he has avoided in order to avoid the political risk.

Due Process: Drone strikes

President Obama also pledged more congressional oversight of drone strikes, responding to sustained controversy and reiterating a promise from his State of the Union address in January that he has yet to fill.
Noting the 2014 drawdown of US troops in Afghanistan, he also suggested the diminishing need for force protection. That, in turn, could lead to a reduction in “signature strikes,” untethered attacks in which the CIA essentially kills at random based on nothing more than suspicious activity and inflames anti-US sentiment. If nothing else, the president explained a preference to shift drone strikes from the unaccountable and secret CIA to the (also secret, though at least somewhat accountable) Pentagon.

Most importantly, the president acknowledged for the first time in public that civilian casualties—which he predictably downplayed—run the risk of creating new enemies.

On the one hand, he claimed that drone strikes are less lethal, and less prone to civilian casualties, than conventional warfare.

On the other hand, according to an independent study, only 5% of deaths from drone strikes were actually senior terror leaders, suggesting that what the press conveniently calls “targeted killings” are in fact essentially random. Signature strikes, in particular, reveal the rose tint in the president glasses: these are the antithesis of targeted killings, but rather knee-jerk assassinations based on mere suspicion. The CIA often doesn’t even know who it kills, let alone whether they are actually involved in terrorism.

Perhaps most revealing were the president’s comments about assassinating US citizens without trial. This particular subject sparked widespread controversy earlier this year, when Senator Rand Paul (R-KY) mounted a filibuster specifically to force the administration to resign the authority to kill Americans at home using drones.

Now, as then, the response is rhetorically welcome but substantively empty. Just as Attorney General Eric Holder’s letter to Sen. Paul made promises that ultimately appear implausible in light of the actual facts, President Obama’s assurances that drone strikes are closely targeted belies the competing fact that four US citizens have died in drone strikes, while only one was reportedly targeted. If the CIA has killed four times the number of US citizens than it has intended, how can we maintain the pretense that drone strikes avoid collateral casualties?

At root is a surprising willingness to redefine Due Process to exclude a right to judicial review. A canard—that the executive branch can provide Due Process without judicial review—pervades the drone program. But that view makes a mockery of over 800 years of legal precedent establishing the need for judges to check and balance executive detention orders. For a constitutional law professor to advance so revolutionary claim should disturb any observer, regardless of political perspective.

The First Amendment: freedom of the press

President Obama also reiterated his recent call for a reporter shield law to enable the press to do its job without interference from prosecutors. This suggestion lends itself to criticism on the grounds of both hypocrisy and insufficiency.

A reporter shield law is important, but the president’s speech ignored both his own administration’s attacks on the press (which he needed no legislation to have curtailed), as well as its vindictive, predatory, and authoritarian crackdown on government whistleblowers (like Thomas Drake, or Bradley Manning, or John Kiriakou) who have resigned their careers to inform the public about government abuses.

The First Amendment: rights to dissent, assembly, and speech

President Obama also recognized that the ham-fisted security measures for which he and his predecessor are both known run the risk of “alter[ing] our country in troubling ways,” before pledging a “proud commitment to civil liberties for all who call America home.”

As a seeming illustration, he allowed an extended (and quite thoughtful) interruption from the audience, noting that the opportunity for a citizen to challenge her president reflects the vitality of liberty in America.

But his rhetorical respect for dissent stands in sharp contrast with the actual actions of federal agencies. Recent investigations have documented a vicious crackdown on dissent executed by the FBI, in partnership with police agencies around the country, to violently suppress the Occupy and peace movements.

At the same time, the IRS was discriminatorily auditing conservative groups, as well as transpartisan constitutionalist groups, including the organization I lead, the Bill of Rights Defense Committee.

Letting a heckler interrupt a speech is no substitute for respecting the public’s rights to assembly, speech, and the press. Words are welcome, but they are far from enough.

Praising American Muslims while abusing us

President Obama’s comments regarding American Muslims were also welcome, but again, ignored the harsh reality on the ground.

He reiterated that the US is not at war with Islam, praised the support of American Muslims for US counterterrorism operations, and indeed, play a key role in winning the battle for hearts & minds abroad. He even reminded listeners that terrorism in America has been instigated by anti-government Christians more often than by Muslims.

Yet during the president’s tenure, the FBI has infiltrated mosques around the country, lied to communities—and courts—about it, recorded sexual encounters to enable blackmail, and bribed unsophisticated Muslims of all races into government-initiated plots in order to inflate both its own institutional reputation and the threat of domestic terrorism (while conspicuously ignoring real plots, like the Boston marathon bombings).

Restoring First Amendment rights—for the press, dissidents, and religious minorities—will require wide-ranging changes at the FBI that few in Washington have discussed.

Real counter-terrorism

Perhaps most remarkably, the president explained that “Force alone cannot make us safe,” before noting the overwhelming and untenable costs of war, and the greater opportunity to achieve lasting security by winning not just battlefields, but also hearts & minds.

But the president—like his predecessor—has long ignored many of those opportunities. On the one hand, he explained how building roads, schools, and hospitals can undermine terrorist recruitment, in sharp contrast to the torture and drone strikes that encourage it.

But giving weapons to dictators, protecting American textile manufactures through discriminatory tariffs, enabling terror networks to fund themselves through the black market opportunities created by the failed war on drugs, and destabilizing global food markets by encouraging domestic agricultural overproduction through corporate subsidies, all play an enormous roles in enabling terrorism. Yet none of these subjects are even discussed in these terms in Washington.

If his rhetoric matched reality, the president’s speech would have been world historical, repudiating a decade of lawlessness and restoring the best in America. And it was excellent, even if occasionally duplicitous. The question now is whether it was anything more than words, and whether the Administration will convert the president’s welcome rhetoric into long overdue action.

That, in turn, depends in part on whether Congress grows more assertive in asserting its checks & balances on executive power. Fortunately, we can each encourage that result.

Killing us softly

1:48 pm in Uncategorized by Shahid Buttar

John Brennan - Caricature

John Brennan - Caricature

Why Holder’s letter carries little water

Last week, Senator Rand Paul (R-TX) forced a long overdue conversation in Washington about checks and balances on executive power. Yet few observers recognize the ultimate importance of his actions, or why the Senate’s confirmation of the new CIA director remained premature.

Prompted by Sen. Paul’s filibuster last Wednesday, Attorney General Holder wrote a letter the following day, acknowledging that our government lacks authority to execute Americans within the US without trial.

His concession is welcome, but must be taken with a grain of salt. It behooves observers to understand why, for several reasons, Holder’s statement may be less secure than we would ideally hope.

Accepting disclosure without investigation

Much of the controversy surrounding Brennan’s nomination concerned mere disclosure: whether the executive branch would let Congress read the administration’s legal analysis governing the targeted assassination program. President Obama apparently heard the message, admitting in his State of the Union address that more transparency is required.

The result proved underwhelming. One congressional committee received a single legal memo among several, which did not even purport to delineate the boundaries of the assassination program, but rather explored the use of deadly authority against a single target among several hundred who have been killed, including at least four US citizens.

Mere disclosure of some OLC memos to some Senators is insufficient.

Meaningful congressional oversight requires full access to all the legal memos, as well as active investigation of the underlying facts. It is not enough to simply read executive legal analyses paying lip service to constitutional values routinely violated on the ground.

The congressional intelligence committees, after all, were founded after robust investigations revealed widespread abuses by intelligence agencies, including the CIA, spanning decades and the terms of several presidents. Factual investigation has revealed more recent abuses, as well.

Last year, the Senate Intelligence Committee concluded a thorough investigation of torture, which produced a report recognizing torture as an international human rights abuse that ultimately undermined US national security by producing false intelligence, eroding pro American sentiment abroad, and helping our enemies recruit foot soldiers.

Yet, reflecting its pattern of embracing secrecy while claiming transparency, the Obama administration has refused to declassify the report. It is only because neither the press nor the public know the facts that irresponsible Hollywood fiction proved so problematic and controversial.

Forgotten in commentary on Brennan’s confirmation were some troubling details suggesting that, on both torture and drone strikes, transparency remains inadequate.

First, Senators had to fight tooth & nail to secure even the most minimal disclosure from the White House. Second, other congressional committees also sought access to the OLC assassination memos, but were denied.

Finally, beyond disclosure of the OLC’s legal memos are important questions about how the standards in them are applied to real facts. The Obama administration and CIA still refuse to answer congressional questions beyond the memos—such as, “How much evidence does the President need to determine that a particular American can be lawfully killed?” These questions are crucial, but Brennan’s confirmation could ensure that Congress receives few answers.

How the facts suggest elastic powers
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Bipartisan Senate filibuster challenges Brennan CIA nomination

12:31 pm in Uncategorized by Shahid Buttar

Sen. Rand Paul (R-KY)
A bipartisan filibuster of John Brennan’s nomination to lead the CIA riveted Washington on Wednesday. Senators from both sides of the partisan aisle, led by Sen. Rand Paul (R-KY), took to the Senate floor to force further debate on a nomination that should not proceed.

Sen. Paul’s 12 hours of comments included a succinct and clear expression of his concerns:

I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.

Brennan’s nomination presents a rare window of accountability, and Senators are right to use it as an occasion to challenge an administration prone to self-congratulation about transparency, even while extending government secrecy and executive fiat to unprecedented levels.

How we got here

Brennan was deemed unfit to lead the CIA four years ago, because of his record at an agency whose institutional hands remain stained by human rights abuses for which it has never faced (and indeed actively obstructed) justice.

Even worse than the CIA’s human rights abuses, or its self-serving destruction of evidence of international crimes, is an expanding set of disturbing claims by executive branch officials that must be rejected for our Constitution to survive.

Attorney General Eric Holder testified about the power to kill Americans without trial before the Senate Judiciary Committee on Wednesday, after sending a related letter to Sen. Paul the day before. His letter asserted the authoritarian power to kill Americans without trial, even within the United States, followed by congressional testimony arguing that Congress’ Authorization to Use Military Force (AUMF) in Afghanistan could also justify military action within the US.

Those conclusions, put simply, render our country unfit to be considered part of the free world, let alone its leader.

In 2001, Congress enacted the AUMF to enable the invasion of Afghanistan, not authorize domestic warfare. Moreover, it has already been stretched well beyond the limits of plausible interpretation: even before President Obama came to the White House, the AUMF was cited to justify the detention of US citizens in military custody without proof of crime.

Senators from both parties had previously raised concerns about assassination without trial, which is absolutely illegal under not only the US Constitution, but even the Magna Carta. The administration’s responses to their inquiries unfortunately make matters only worse.

This week’s developments

On the one hand, Holder claims that the authority to arbitrarily kill Americans within the US could be triggered only by an extraordinary event on par with Pearl Harbor or the 9/11 attacks. On the other hand, the few legal limits that executive officials have previously acknowledged are themselves routinely violated in practice. In other words, nothing would prevent this extreme power from being used abusively.

Until this week, the battle over Brennan’s nomination had focused on disclosure: whether the Holder Justice Department (and, in particular, its Office of Legal Counsel infamous for authorizing torture under the Bush demonstration) would give Congress key documents that members have long sought to identify the legal standards under which the administration conducts drone strikes targeting American citizens.

After members of the intelligence committee (but not other senators) were allowed access to the documents, the committee approved Brennan’s nomination, sending it to the Senate floor where a bipartisan band of Senators managed yesterday to stall it, at least for the moment.

They are right to raise resistance. As Sen. Ron Wyden (D-OR) said:

Senator Paul and I agree that this nomination also provides a very important opportunity for the United States Senate to consider the government’s rules and policies on the targeted killings of Americans and that, of course, has been a central pillar of our nation’s counterterror strategy.

Especially encouraging was the reaction of other Senators to Sen. Paul’s filibuster. While he began alone, Wyden’s support rendered it a bipartisan effort, despite Wyden’s vote in committee to approve Brennan’s nomination to send it to the Senate floor.  In addition, several GOP senators eventually joined him, including Minority Leader Mitch McConnell (R-KY), Mike Lee (R-UT), Ted Cruz (R-TX), John Thune (R-SD), Ron Johnson (R-WI), Tim Scott (R-SC), and Dean Heller (R-NV).

The battle continues, with Senate Democrats continuing to seek confirmation as early as this weekend. But as the Washington Post’s Jennifer Rubin asks:

Where, for goodness’ sake, are the liberal civil libertarians? Where are the Republicans (who would filibuster Chuck Hagel, but only for show, and only briefly)? Where, for that matter, are the mainstream media and the liberal punditocracy that would be calling for impeachment about now if a Republican president had done all this?….

And so it’s come to this: Rand Paul talking all by himself on the Senate floor. On one level, it shows the power of a single senator to make a difference. On the other hand, it is a very sad statement on the intellectual collapse of both the right and the left — and most especially of the media, whose first impulse in this administration is to circle the wagons around the White House.